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61–983 PDF 2012

S. HRG. 110–1114 

A PERSPECTIVE ON THE ENDANGERED SPECIES 

ACT’S IMPACTS ON THE OIL AND GAS INDUSTRY 

FIELD HEARING 

BEFORE THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

AUGUST 23, 2007—TULSA, OK 

Printed for the use of the Committee on Environment and Public Works 

( 

Available via the World Wide Web: http://www.access.gpo.gov/congress.senate 
(II) 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

BARBARA BOXER, California, Chairman 

MAX BAUCUS, Montana 

JOSEPH I. LIEBERMAN, Connecticut 

THOMAS R. CARPER, Delaware 

HILLARY RODHAM CLINTON, New York 

FRANK R. LAUTENBERG, New Jersey 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

AMY KLOBUCHAR, Minnesota 

SHELDON WHITEHOUSE, Rhode Island 

JAMES M. INHOFE, Oklahoma 

JOHN W. WARNER, Virginia 

GEORGE V. VOINOVICH, Ohio 

JOHNNY ISAKSON, Georgia 

DAVID VITTER, Louisiana 

JOHN BARRASSO, Wyoming1

LARRY E. CRAIG, Idaho 

LAMAR ALEXANDER, Tennessee 

CHRISTOPHER S. BOND, Missouri 

BETTINA POIRIER, Majority Staff Director and Chief Counsel 

ANDREW WHEELER, Minority Staff Director 

1Note: During the 110th Congress, Senator Craig Thomas, of Wyoming, 

passed away on June 4, 2007. Senator John Barrasso, of Wyoming, joined 

the committee on July 10, 2007. 
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C O N T E N T S 

Page 

August 23, 2007 

OPENING STATEMENTS 

Boxer, Hon. Barbara, U.S. Senator from the State of California ........................ 1 

WITNESSES 

Tuggle, Benjamin, Regional Director, U.S. Fish and Wildlife Service ................ 5 

Prepared statement .......................................................................................... 8 

Buchanan, Tom, on behalf of Oklahoma Farm Bureau ........................................ 13 

Prepared statement .......................................................................................... 15 

Sullivan, Robert J. Jr., Sullivan and Company, LLC, On behalf of Oklahoma 

Independent Petroleum Association ................................................................... 16 

Prepared statement .......................................................................................... 18 

Bower-Moore, Dru, Regulatory Advisor, Western Division Devon Energy 

Corporation ........................................................................................................... 20 

Prepared statement .......................................................................................... 22 

Haught, Jim, Manager, Environmental Services ONEOK, Incorporation .......... 27 

Prepared statement .......................................................................................... 29 

ADDITIONAL MATERIAL 

Statements: 

United States Department of the Interior, Office of the Solicitor, The 

Meaning of ‘‘In Danger of Extinction Throughout all or a Significant 

Portion of its Range’’ ..................................................................................... 41 

Environmental Assessment Division, Argonne National Laboratory, 

Environmental Policy and Regulatory Constraints to Natural Gas 

Production ...................................................................................................... 77 

Energy Bar Association, Energy and the Environment: The Future of 

Natural Gas in America, Energy Law Journal .......................................... 201 

(1) 

A PERSPECTIVE ON THE ENDANGERED SPECIES ACT’S IMPACTS ON THE OIL AND GAS 

INDUSTRY 

Thursday, August 23, 2007 

U.S. SENATE, 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, 

Washington, DC. 

The committee met, pursuant to notice, at 10 o’clock a.m. in 

Courtroom 1, U.S. District Court, 333 West 4th Street, Tulsa, OK, 

Hon. Barbara Boxer (chairman of the committee) presiding. 

Present: Senator Boxer. 

OPENING STATEMENT OF HON. BARBARA BOXER, 

U.S. SENATOR FROM THE STATE OF CALIFORNIA 

Senator INHOFE. The hearing will come to order. And first of all, 

today’s hearing is about the oil and gas industry, an industry that’s 

absolutely essential to Oklahoma. 

The oil and gas industry represents 10 percent of our gross State 

product and employs more than 55,000 Oklahomans. For the past 

15 years, Oklahoma’s oil and gas producers have paid production 

taxes in excess of $400 million annually. This money funds schools 

and roads and health services and other services. So a healthy oil 

and gas industry is critical, not only to the livelihood of Oklahomans, but to the Nation’s overall energy security. For example, 10 

percent of the Nation’s natural gas reserves are in Oklahoma, and 

for the past 2 years, the industry has produced energy valued in 

excess of $10 billion. 

Now some of our witnesses may not be aware of this, but I actually started out in the business, I think, Mr. Sullivan, you’re aware 

of this. Since I’m older than everybody in this room, some of you 

won’t know what I’m talking about when I tell you that I was a 

tool dresser on a cable tool rig, and that is in the Osage field up 

there, so I drilled an awful lot of that shallow stuff up there, and 

that’s hard work, but it’s certainly essential to our economy, and 

you can see some rebound taking place right now. 

It’s more important than ever to foster the domestic development 

of oil and gas resources. Today we’ll hear from witnesses about how 

the Endangered Species Act has impacted that production. 

Enacted in 1973, the ESA, Endangered Species Act, remains one 

of our most celebrated environmental laws despite the fact that it 

has not reached many of its stated objectives and has cost the 

country billions in the process. 
2 

For example, a 2004 Department of Energy report on natural 

gas, and without objection, that will be a part of the record, stated 

that ‘‘Critical habitat designations and section 7 consultations 

under ESA have caused enormous delays to natural gas projects 

with an estimated cost to the economy of $261 to $979 million over 

the past 30 years.’’ And that’s a lot. In Oklahoma, the ESA protection of the American Burying Beetle has proven a formidable barrier to oil and gas exploration, production and distribution. The 

American Burying Beetle was listed in 1989 based on museum collectors’ data. Nearly 20 years later, actual field data showed that 

the populations of the beetle were and are very extensive. 

According to the Fish and Wildlife Ecological Service, there may 

be more than 72,000 beetles in Oklahoma alone. And this doesn’t 

sound like they’re endangered of extinction to me. 

But the lack of robust science in the listing process is not the 

only issue. The conservation policies have also taken their toll on 

the energy industry. As we will hear from one of our producers 

today, a long-standing policy for winter oil and gas construction activities in Oklahoma was suddenly changed without notice to the 

industry, costing millions of dollars, and unfortunately, changing 

the rules in the middle of the game; it’s become more of a rule than 

an exception. 

Earlier this year we got a bit of good news. The Service announced it would begin a status review of the American Burying 

Beetle, something the ESA requires the Service do every 5 years. 

The beetle has been waiting for 13 years. And I hope the Service 

will have some answers for us today about what they have learned 

and when we can expect some decisions. 

The problem goes beyond the oil and gas industry to the consumer, who ultimately pays the price. For example, over regulation 

drives up natural gas prices for farmers and ranchers, another industry critical to Oklahoma. 

Natural gas accounts for 90 percent of the total—actual total 

costs of manufacturing fertilizer, an obviously important component for farming. And we’ll hear today from the Farm Bureau. 

We’ve discussed this many times, that people are not aware of the 

connection between natural gas and our Ag community. 

Since 2000, 24 nitrogen fertilizer plants have shut down, and 

that leaves only six remaining. Some people are not aware of this, 

but two of those six are located here in Oklahoma. 

Oklahoma’s farmers get hit more than once. They not only face 

increasing natural gas prices, but have ESA issues of their own. 

In an attempt to be good stewards and to avoid the burdensome 

designation of the critical habitat of the Arkansas River Shiner, the 

Oklahoma Farm Bureau created a voluntary species management 

plan. Today we’ll hear how that project is going. 

You know, I always remember, when we were talking about that, 

we had—the Ag leadership happened to come in the room and hear 

what we’re up against there in Washington, I say to you Tom, and 

so I want you not to be shy in your testimony today. 

Sadly the ESA is just one of a host of laws, although well intended, frustrate domestic energy production in this country. 

After decades of activist judges and lawsuits by anti—energy special interests, environmental laws are not used to ensure that 
3 

human actions do not harm the environment, but are used to stop 

human activity altogether. 

These interests don’t believe what all Oklahomans know to be 

true, and that is that we can develop our energy resources without 

sacrificing the environment. 

I’m proud that Oklahoma leads the rest of the country in so 

many ways when it comes to energy exploration, production, and 

research as well as the protection of the environment. The Oklahoma Energy Research Board, for example, is a model for many 

other States. 

The fact of the matter is that this engine we call ‘‘America needs 

energy to run.’’ If our domestic oil and gas producers are prevented 

from producing that energy, then businesses are hurt and people 

lose their jobs. 

Here are just a couple of examples: According to the American 

Chemistry Council, one out of every ten chemical—related jobs has 

vanished in the last 5 years. 

The first—the America forest and paper industry has lost more 

than 120,000 high paying manufacturing jobs and closed more than 

220 plants. 

In fact, the Pacific Northwest timber industry was essentially 

shut down some 10 to 15 years ago to protect the Northern Spotted 

Owl. And it’s now thought that many of the spotted owl’s problems 

were not from logging, but due to competition for food and habitat 

from other owls. 

The obstacles to efficient development of our natural resources 

are many. Most of them have nothing to do with scarcity of resources, but are created by those in Washington DC who say they 

dislike relying on foreign oil but do everything to prevent domestic 

production. 

You know, that’s one of the greatest frustrations I have coming 

from an oil State, to be there serving with some of the people in 

Congress, listening to individuals talk about how bad it is to be relying on foreign resources, then turn around and do everything 

they can to keep us from producing. And this is something that we 

face every day. 

When Congress resumes in September, we’ll have a conference 

committee to reconcile the differences between the Senate and the 

House energy bills. 

And I say ‘‘energy bills,’’ even though they’re not energy bills. 

The House Energy Bill is a lousy bill, the Senate Energy Bill is a 

lousy bill, and I don’t know how we can expect anything out of conference because of the rules that we have. They can’t go beyond the 

purview of the House and the Senate, but we’re going to try to do 

better in the years to come. 

And I want to welcome all the witnesses and look forward to 

sharing your wisdom with my colleagues and Congress on both 

sides of the aisle. 

As I said to you before we started, the value of these hearings 

is, we are able to get testimony and get it into the record and 

heighten the visibility of this problem that we have right now. 

We have a number of great witnesses today. We start off with 

Dr. Ben Tuggle who’s the Regional Director of the U.S. Fish and 
4 

Wildlife, took the place of Dale Hall, who’s been a good friend of 

ours for many times. 

We have Tom Buchanan on behalf of the Farm Bureau. Bob Sullivan, a very good friend with the independent producers. Dru 

Bower-Moore, the Regulatory Advisor, Western Division of Devon. 

And as I told Dru, I was in Devon on Monday and enjoyed visiting 

with probably 200 or 300 of their employees. And Jim Haught, the 

manager of ONEOK. 

Well, let’s start off—and what I’d like to do is have each person, 

if you would, take one panel at a time starting with Dr. Tuggle. 

If you’d try to restrict your opening remarks to 5 minutes, and we’ll 

have a timer up here, that would probably help us. 

Your entire opening remarks will be made a part of the record. 

And we’ll recognize you at this time, Dr. Tuggle. 

[The prepared statement of Senator Boxer follows:] 

STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR FROM

THE STATE OF CALIFORNIA

Good morning. Today’s hearing is about the oil and gas industry, an industry that 

is absolutely critical to Oklahoma. 

The oil and gas industry represents 10 percent of our gross State product and employs more than 55,000 Oklahomans. For the past 15 years, Oklahoma’s oil and gas 

producers paid production taxes in excess of $400 million annually. This money 

funds schools, roads, health care and other services. A healthy oil and gas industry 

is critical not only to the livelihood of Oklahomans but to the Nation’s overall energy 

security. For example, 10 percent of the Nation’s natural gas reserves are in Oklahoma and for the past 2 years, the industry has produced energy valued in excess 

of $10 billion. 

It is more important than ever to foster the domestic development of oil and gas 

resources. Today, we will hear from witnesses about how the Endangered Species 

Act has impacted that production. 

Enacted in 1973, the Endangered Species Act remains one of our most celebrated 

environmental laws despite the fact that it has not reached many of its stated objectives and has cost the country billions in the process. For example, a 2004 Department of Energy report on natural gas (insert into the record), stated that critical 

habitat designations and section 7 consultations under ESA have caused enormous 

delays to natural gas projects with an estimated cost to the economy of $261 to $979 

million over the past 30 years. 

In Oklahoma, the ESA protection of the American Burying Beetle has proven a 

formidable barrier to oil and gas exploration, production and distribution. The 

American Burying Beetle was listed in 1989 based on museum collector’s data. 

Nearly 20 years later, actual field data show that the populations of the beetle were 

and are very extensive. According to the Fish and Wildlife Ecological Service, there 

may be more than 72,000 beetles in Oklahoma alone. This doesn’t sound like a species that is ‘‘in danger of extinction.’’ 

But the lack of robust science in the listing process is not the only issue. The conservation policies have also taken their toll on the energy industry. As we will hear 

from one of our producers today, the long-standing policy for winter oil and gas construction activities in Oklahoma was suddenly changed without notice to the industry, costing millions of dollars. Unfortunately, changing the rules in the middle of 

the game is the rule rather than the exception when implementing ESA. 

Earlier this year, we got a bit of good news. The Service announced it would begin 

a status review of the American Burying Beetle; something the ESA requires the 

Service to do every 5 years. The beetle has been waiting for 13 years. I hope the 

Service will have some answers for us today about what they have learned and 

when we can expect some decisions. 

The problem goes beyond the oil and gas industry to the consumer, who ultimately pays the price. For example, overregulation drives up natural gas prices for 

farmers and ranchers, another industry critical to Oklahoma. Natural gas accounts 

for up to 90 percent of the total costs of manufacturing fertilizer, an obviously important component of farming. Since 2000, 24 nitrogen fertilizer plants have shut 

down. Only 6 U.S. plants remain, three of which are in Oklahoma. 
5 

And Oklahoma’s farmers get hit more than once. They not only face increased 

natural gas prices but have ESA issues of their own. In an attempt to be good stewards and to avoid the burdensome designation of critical habitat for the Arkansas 

River Shiner, the Oklahoma Farm Bureau created a voluntary species management 

plan. Today we will hear how this project is going. 

Sadly, the ESA is just one of a host of laws that, although well intended, frustrate 

domestic energy production in this country. After decades of activist judges and lawsuits by anti-energy special interests, environmental laws are not used to ensure 

that human actions do not harm the environment but are used to stop human activity all together. These interests don’t believe what all Oklahomans know to be 

true—that we can develop our energy resources without sacrificing the environment. 

I am proud that Oklahoma leads the rest of the country in so many ways when it 

comes to energy exploration, production, and research, as well as protection of the 

environment. The Oklahoma Energy Research Board, for example, is a model for 

many other States. 

The fact of the matter is that this engine we call America needs energy to run. 

If our domestic oil and gas producers are prevented from obtaining that energy, 

then businesses are hurt and people lose their jobs. Here are just a couple of examples. According to the American Chemistry Council, ‘‘one in every 10 chemical-related jobs has vanished in the past 5 years.’’ The American Forest & Paper Industry 

‘‘has lost more than 120,000 high paying manufacturing jobs and closed more than 

220 plants.’’ In fact, the Pacific Northwest timber industry was essentially shut 

down 10—15 years ago to protect the Northern Spotted Owl. It is now thought that 

many of the spotted owl’s problems were not from logging but due to competition 

for food and habitat from other owls. 

The obstacles to efficient development of our natural resources are many. Most 

of them have nothing to do with scarcity of resources, but are created by those in 

Washington DC who say they dislike ‘‘relying on foreign oil’’ but do everything they 

can to prevent domestic production. When Congress resumes in September, we will 

have a conference committee to reconcile differences between the Senate and House 

energy bills. If the goal is to actually improve U.S. energy security, these bills not 

only fail to meet the mark but they also put in place a new set of roadblocks. I had 

hoped we could do better. I want to welcome all the witnesses and I look forward 

to sharing your wisdom with my colleagues in Congress on both sides of the aisle. 

OPENING STATEMENT OF BENJAMIN TUGGLE, REGIONAL 

DIRECTOR, U.S. FISH AND WILDLIFE SERVICE 

Dr. TUGGLE. Thank you, Senator. I certainly appreciate the opportunity to be here. 

Senator INHOFE. Now can you move your microphone up close because we want to make sure we get an accurate record of this proceeding. 

Dr. TUGGLE. OK. How is that? 

Senator INHOFE. That’s better. 

Dr. TUGGLE. I’m often told I have a soft voice by everybody except my staff. 

Senator INHOFE. But carry a big stick, is that it? 

Dr. TUGGLE. That’s the idea. Good morning. I am Dr. Benjamin 

Tuggle. I’m the Regional Director for the U.S. Fish and Wildlife 

Service in the Southwest Region, which includes the great State of 

Oklahoma, Texas, New Mexico, Arizona. 

Before providing my testimony, Senator, I’d like to thank you for 

allowing me the opportunity to appear before you today for this 

field hearing. 

As a regional director, I oversee the Service’s role in the administration of the Endangered Species Act, as well as a number of other 

Federal responsibilities related to the Act in this region. 

My formal testimony, which has been provided for the record, 

discusses the history, biology, and extensive conservation efforts 

that have been taken on the part of the Service for the American 

Burying Beetle and the Arkansas River Shiner. However, I would 
6 

like to focus my oral remarks today on the efforts being taken by 

the Service to work with industries inherently involved in the conservation of these species through their compliance with the Endangered Species Act. And I refer specifically to the industries that 

are associated with oil and gas and agriculture. 

The cooperative activities I will mention today represent but a 

snapshot of the extent of our extensive efforts to streamline endangered species compliance while also ensuring protection and conservation of endangered species. 

As you know, Senator, the mission of the Fish and Wildlife Service is to work with others to conserve, protect and enhance fish and 

wildlife and plants and their habitats for the continued enjoyment 

of the American people. 

Our role regarding energy development is multifaceted. For example, the Service facilitates the environmentally sound exploration and production of privately held minerals on the national 

wildlife refuge system lands in order to minimize impacts to other 

resources. 

We work in partnership with the oil and gas operators to streamline this process so that the financial and operational needs of the 

operators are met while fulfilling our role and responsibility to protect species and environment for the American people. 

We also work closely with other entities such as the BLM, Environment Protection Agency, and the Corps of Engineers in the assessment of potential impacts to natural resources where the requirement of the National Environmental Policy Act, or NEPA applies. And we consult with States and local agencies to ensure their 

regulatory requirements are also met. 

The Service participates in the necessary clearances for protecting resources, such as the Endangered Species Act consultation 

for threatening endangered species, monitoring, and compliance activities and establishing mitigation and reclamation standards for 

individual species. 

It’s important to note that neither the American Burying Beetle 

nor the Arkansas River Shiner consultations have ever stopped a 

project from going forward. This is not to say that some of the 

projects haven’t experienced delays in the past due to the compliance with the ESA. However when operators coordinate with us 

early and frequently in projects, they are much more likely to experience no delays in ESA consultation as we move forward with 

their schedule. 

When endangered species consultation is required of the Service 

on a particular activity, the Service works to expedite these actions 

as quickly as possible and to identify steps that would be taken to 

minimize the impacts, not only to the schedule, but also to the species. 

Furthermore, the Service has taken proactive steps to ensure the 

mission priorities are met while also streamlining the consultation 

process so that the financial and operational needs of oil and gas 

and agriculture operations are met. 

I will spend the remainder of my time to just identify some of 

the examples of these proactive means that I’ve been speaking 

about earlier. 
7 

In 2004, the Service worked on and completed a Memorandum 

of Understanding with five major oil and gas companies in Eastern 

Oklahoma, operating within the range of the American Burying 

Beetle. By signing the MOU, the oil and gas operators voluntarily 

agreed to implement agreed upon Best Management Practices to 

proactively conserve the beetle. 

As a result, the Service does not anticipate their operations negatively impacting the beetle or its habitat. 

Similarly, we have also finalized an MOU with a seismic exploration company operating within the range of the American Burying Beetle in Eastern Oklahoma. 

Furthermore, we have worked with the Oklahoma Corporation 

Commission to assist operators and the Commission in operating— 

in addressing rather, the American Burying Beetle during the seismic operation permit application process. 

The Service is working with the Oklahoma Department of Transportation and the Federal Highway Administration on a programmatic biological opinion for the American Burying Beetle. 

This programmatic opinion will facilitate implementation of Federal, State and county projects funded by the Federal Highway Administration by—— 

Senator INHOFE. Let me interrupt you just a moment. This is a 

little awkward for me because I can’t see the timing here. In Washington we have the timing where everyone can see it. How are we 

doing there? 

Senator CLERK. We’re out of time. 

Senator INHOFE. We’re out of time. Try to wrap up if you would, 

Dr. Tuggle. 

Dr. TUGGLE. I will and I apologize for taking much longer. 

Senator INHOFE. That’s fine. 

Dr. TUGGLE. I would like to highlight in summary just the fact 

that we have used virtually every tool at our disposal to be able 

to streamline this process. 

One of the things that I would like to highlight before my time 

is through, is, we’ve used nonprograms, such as the Partners for 

Fish and Wildlife to work with landowners to try to provide funds 

to be able to work with those landowners so they can put conservation measures in place. And we also want to thank you for spearheading the legislation that gave us organic legislation in that regard. 

Senator INHOFE. That was very successful. In fact, we had a 

hearing with some of the—I think, one of the same witnesses on 

that legislation. 

Dr. TUGGLE. In closing, the Service remains committed to successfully conserving and recovering endangered species while working with the industry that’s impacted by these regulatory activities. 

We recognize the species conservation must not come at the cost 

of diminishing the ability of the United States to ensure its energy 

future. And only by working together can we achieve our goals. 

I want to also thank you for showing the leadership to bring this 

meeting, this field hearing today. And also I’d like to answer any 

questions that you have for me. 

[The prepared statement of Dr. Tuggle follows:] 
8 

STATEMENT OF BENJAMIN TUGGLE, REGIONAL DIRECTOR, U.S. FISH AND WILDLIFE SERVICE

Good afternoon, I am Dr. Benjamin Tuggle, Regional Director of the U.S. Fish and 

Wildlife Service’s (Service) Southwest Region, which includes the States of Texas, 

New Mexico, Arizona and Oklahoma. Before presenting my testimony, I would like 

to thank Senator Inhofe for the opportunity to appear here today and participate 

in this oversight hearing. As Regional Director, I oversee the Service’s role in the 

administration of the Endangered Species Act, as well as a number of our other 

Federal responsibilities related to the Act, in the region. 

My statement today will focus on the Southwest Region’s role in the conservation 

and recovery of two Governmentally listed species: the American burying beetle and 

Arkansas River shiner, as well as the Service’s efforts to streamline Endangered 

Species Act compliance for these two species in Oklahoma. 

AMERICAN BURYING BEETLE

The American burying beetle was listed as endangered under the Endangered 

Species Act in 1989 and the Final Recovery Plan was signed in 1991. Once found 

throughout the eastern United States, the American burying beetle is now only 

found in nine States: South Dakota, Nebraska, Michigan, Ohio, Oklahoma, Texas, 

Arkansas, Rhode Island, and Massachusetts. The beetle’s current range represents 

a 95 percent reduction from its estimated historic range. Within Oklahoma, the species is known or believed to occur in 34 counties in the eastern part of the State. 

Numerous American burying beetle surveys have been conducted by private and 

Governmental entities within the eastern third of Oklahoma over the past several 

years, including a large number of surveys conducted by the oil and gas industry. 

These surveys vary annually with regard to where they are conducted and during 

what time of year, but indicate, on average, relative population stability from 1992 

to 2006. In contrast, survey population data from other States within the species’ 

historic range vary widely. 

In late 2003 and early 2004, the Service worked on and completed a Memorandum 

of Understanding (MOU) with five major oil and gas companies in eastern Oklahoma operating within the range of the American burying beetle. The MOU provided best management practices for avoiding or minimizing adverse impacts to the 

beetle from oil and gas-related activities. By signing the MOU, the oil and gas operators voluntarily agreed to implement the best management practices to proactively 

conserve the beetle. 

As a result, the Service does not anticipate their operations will result in take, 

which is prohibited under section 9 of the Endangered Species Act. 

Similarly, we are also finalizing an MOU with a seismic exploration company operating within the range of the American burying beetle in eastern Oklahoma. This 

MOU provides best management practices for avoiding or minimizing adverse impacts to American burying beetles from non-Federal oil and gas seismic activities. 

Furthermore, we are working with the Oklahoma Corporation Commission to assist 

operators and the Commission in addressing the American burying beetle during 

the seismic operations permit application process. 

In May 2005, the Service completed a Programmatic Biological Opinion for the 

American burying beetle with the Environmental Protection Agency (EPA) concerning oil and gas-related activities in eastern Oklahoma that required a Clean 

Water Act storm water construction permit. The Service’s Biological Opinion 

streamlined the consultation process so that the permits could be issued to oil and 

gas operators in only 7 days. The Energy Policy Act of 2005, however, negated the 

need for permitting of most oil and gas activities. Consequently, the Biological Opinion is no longer applicable and consultation with the Service in regard to storm 

water permits for oil and gas activities is rare. 

In September 2005, the St. Louis Zoo hosted an American burying beetle conservation conference in St. Louis, Missouri. The conferees identified a need for a 

species-specific working group, along with a 5-year status review for the species and 

an updated and revised recovery plan. In May 2007, the Service hosted a followup conference in Tahlequah, OK to present new research on the American burying 

beetle and similar species. The event was open to the public and staff from the U.S. 

Senate Environment and Public Works Committee attended. The 5-year review of 

the status of the American burying beetle should be finalized in early 2008. After 

the 5-year review is completed the Service will begin working on the revised recovery plan for the beetle. 

The Service is also working with Northeastern State University, the University 

of Oklahoma, the Oklahoma Department of Wildlife Conservation, and Camp 
9 

Gruber National Guard Training Center to determine the reproductive habitat preferences of the American burying beetle. The results from this research have the potential to identify specific geographic areas of suitable habitat for American burying 

beetle reproduction. The Oklahoma Department of Wildlife Conservation plans on 

using roughly $30,000 of the Cooperative Endangered Species Fund dollars in fiscal 

year for an American burying beetle microhabitat reproductive study. 

The Service is in the preliminary stages of discussing development of an umbrella 

Habitat Conservation Plan (HCP) for the American burying beetle within the State 

of Oklahoma. The goal of this umbrella HCP is to authorize incidental take under 

the Endangered Species Act and allow both State and private entities to continue 

their otherwise legal activities while also providing for conservation of the species 

and its habitat. We will keep Congress apprised of our progress. 

Last, the Service is also currently working with the Oklahoma Department of 

Transportation and the Federal Highway Administration on a programmatic Biological Opinion for the American burying beetle in eastern Oklahoma. This programmatic opinion will facilitate implementation of Federal, State and county 

projects, funded by the Federal Highway Administration, by streamlining traditional 

individual section 7 consultation requirements related to the American burying beetle by condensing it into one consultation. We expect this streamlined process to 

simplify project scheduling. 

ARKANSAS RIVER SHINER

The Arkansas River shiner has disappeared from more than 80 percent of its estimated historical range and is now almost entirely restricted to about 508 miles of 

the Canadian River in Oklahoma, Texas, and New Mexico. An extremely small population may also exist in the Cimarron River in Oklahoma and Kansas, based on 

the collection of 16 individuals from 1985 to 1992. The Arkansas River Basin population of the Arkansas River shiner was listed as a threatened species in 1998 due 

to habitat loss. A final decision on critical habitat designation was promulgated on 

April 4, 2001. On April 25, 2002, the New Mexico Cattle Growers Association and 

16 other plaintiffs challenged the designation in court. A memorandum opinion from 

the U.S. District Court for the District of New Mexico was issued in that case. In 

accordance with the court’s opinion, the Service completed a new final rule designating critical habitat for the Arkansas River shiner on October 13, 2005. 

The Service has conducted surveys for Arkansas River shiner populations since 

2004 and recently implemented a more intensive sampling effort to gather additional information on the status of the species in both the Canadian and Cimarron 

rivers. Further research on the species is necessary before a number of recovery actions can be designed and implemented. We are currently developing proposals to 

fill these research gaps, which will likely include additional monitoring, research on 

competition with other species, effects on the species from changing water quality, 

and habitat assessments. 

Despite these data gaps, the Service continues to conduct proactive species recovery efforts. For example, we are working with the Service’s Partners for Fish and 

Wildlife Program and are implementing a salt cedar task force to address the encroachment of non-native, invasive species which negatively impacts the Arkansas 

River Shiner by reducing the amount of water for the species to thrive. 

In Fiscal Year 2006, the Service awarded a private stewardship grant to the Oklahoma Farm Bureau for over $160,000 for landowners to control invasive salt cedar 

along portions of the South Canadian River in Oklahoma. The Nature Conservancy 

also received a grant of $195,000 to benefit the Arkansas River shiner and its habitat, as well as other listed and candidate species. 

In addition, we are working with the Oklahoma Farm Bureau to develop a conservation plan for the Arkansas River shiner in Oklahoma, based on a plan developed in 2004 by the Canadian River Municipal Water Authority in the Texas panhandle. The plan identifies conservation actions that landowners may voluntarily 

complete for the benefit of the shiner and its habitat. The development and implementation of these two plans will provide an excellent mechanism for landowner involvement in our efforts to conserve the Arkansas River shiner and its habitat. 

The Service is also conducting a formal consultation with the Federal Highway 

Administration and the Oklahoma Department of Transportation on a proposed 

bridge replacement over the Canadian River. Reasonable and prudent measures to 

minimize impacts to the Arkansas River shiner, while not significantly impacting 

bridge construction activities, have been discussed with the Federal Highway Administration and the Oklahoma Department of Transportation. These include revegetating impacted areas with native grasses, maintaining flows by using multiple 
10 

work roads, working outside of the Arkansas River shiner’s spawning season, and 

limiting work within the actual river. 

Consultations on oil and gas operations with potential impacts to the Arkansas 

River shiner have been limited. Typically, the Service recommends directional drilling for pipelines crossing within occupied Arkansas River shiner habitat, as well as 

implementation of best management practices for spill prevention on new oil and 

gas operations. As mentioned above, most oil and gas-related activities are now excluded from the need to obtain storm water construction permits. Therefore, we anticipate that the number of informal consultations with the Service related to the 

Arkansas River shiner and oil and gas-related activities will be lower than in the 

past. 

CONCLUSION

In closing, the Service remains committed to successfully conserving and recovering endangered and listed species, such as the American burying beetle and Arkansas River shiner. We also remain strongly committed to working cooperatively 

with our partners and other stakeholders. 

Thank you again for the opportunity to participate in the hearing today. This concludes my statement and I would be happy to answer any questions you may have. 

Senator INHOFE. Thank you, Dr. Tuggle. I wasn’t going to say 

anything about the Partnership Act, but it was very, very successful. What I like about that is, it lets the Government work with the 

people, with the property owners. And if left to manage their own 

resources in a very environmentally sound way, conservation way, 

they will do it. So I think that’s been a very successful program. 

We’re glad to get it expanded. 

You said something just a minute ago that I had not picked up 

before. You said that these consultations had never—or I guess section 7 never stopped a project, had delay, but not stopped; is that 

accurate? 

Dr. TUGGLE. Yes, sir. 

Senator INHOFE. Let me ask you this question also: Will your 

schedule allow to you stay for the remainder of it, for the second 

panel, so that you would be here? 

Dr. TUGGLE. Yes, sir. 

Senator INHOFE. That would be very helpful. Now, Dr. Tuggle, 

you heard me in my opening remarks, I talked about the 5-year 

status review of the American Burying Beetle. I’d like to know 

when you think that would be completed and what kind of conclusions do you think we might anticipate from that, and what kind 

of actions do you think the Service may be taking? 

Dr. TUGGLE. Well, that 5-year review is due for completion sometime within the next couple of months. The lead region for that is 

our northeast region. And we’ve had several conversations with 

them on the content of that 5-year review. But the 5-year review 

will focus on surveying techniques, will focus on the latest information, scientific information that we have regarding the status of 

those populations. And we anticipate after that 5-year review will 

give us enough information to not only talk about the recovery 

plan, but whether that species is in better shape than we thought 

it was in when we originally had it listed. 

Senator INHOFE. You said it’s a different region is going to be the 

lead. What does the lead do that you would not be involved in? 

How does that change—— 

Dr. TUGGLE. Well, there’s a cooperation that would take place. 

The difference, when we say a ‘‘lead,’’ they’re responsible for actu-
11 

ally writing the document, but we have a great deal of input in 

terms of the content of that document. 

Senator INHOFE. Because we’re addressing the beetle right now, 

and I don’t know whether that’s as prevalent in that region as it 

is here. 

Dr. TUGGLE. Right. Exactly. 

Senator INHOFE. March 16 of 2007, the Solicitor with the U.S. 

Department of Interior issued a memorandum on the meaning of— 

and I’m quoting now, ‘‘In danger of extinction throughout all or a 

significant portion of its range,’’ the statutory threshold of an endangered species. And I want to make that a part of the record also 

without objection. 

Now as I mentioned in my opening statement, the population of 

the American Burying Beetle have been found to be very wide 

spread, and would suggest to me that the beetle is not in danger 

of extinction in Oklahoma. 

I ask you, how is this memorandum going to be incorporated into 

the 5-year review, or will it be considered as part of the evidence 

to be entered into the record?. 

Dr. TUGGLE. Well, I think in the 5-year review, when we get the 

census in terms of the monitoring information, we will be able to 

use the significant portion of the range as we talk about 

downlisting and de-listing a species. And, therefore, if we talk 

about it from a standpoint of a significant portion of the range in 

Oklahoma, and we have a robust population, then we would be 

able to apply that principle in terms of how that species, the burying beetle, would be affected in Oklahoma. 

Senator INHOFE. I see. Dr. Tuggle, the recovery plan for the 

American Burying Beetle was finalized in 1991, and based on little 

data as I understand it, and millions of dollars have been spent on 

research, beetle surveys, conservations and species protection. 

Do you think the recovery plan, a 16-year old document based on 

20-year old data should be updated at the end of this five-year review? 

Dr. TUGGLE. Absolutely, sir. In fact, the essence of the 5-year review will give us a great deal of information in terms of how that 

recovery plan should look, and also whether we’ve reached a point 

with the population standards if we would should downlist or delist 

the species. 

Senator INHOFE. That’s good. On May 18 of 2001, the President 

issued Executive Order No. 13211 that requires agencies to prepare 

statements of energy effects for any regulation that significantly affects energy supply or its distribution and its use. 

In proposing to list the polar bear, the Fish and Wildlife Service 

did not prepare such a statement but rather issued a blanket statement that—and I’m quoting now—‘‘This rule does not expect to significantly affect energy supplies, distribution and use.’’ 

Twenty-five percent of the U.S. domestic supply of oil comes from 

Alaska. If the polar bear is listed, every permit or other action 

taken by the companies in that region will have to go through a 

section 7 consultation, just—it will be a necessary requirement, in 

my opinion. And, you know, how can the Service justify not preparing this statement? 
12 

You know, I was there when they came out with that statement 

on the polar bear when, in fact, of the 15 populations of the polar 

bear, with the exception of the West Hudson Bay area, you’re actually getting either sustained or increased populations in those 

areas. 

And it’s my understanding that the reason for the depleted population in the West Hudson Bay area was due primarily to hunting 

regulations. 

But anyway, I can’t see that they could say that this rule is not 

expected to significantly affect energy supplies, distribution or use 

under these circumstances. 

What do you think about that? 

Dr. TUGGLE. Well, I’ve had the benefit of working with the Interior group when I was still in Washington on the construction—of 

a potential construction of the natural gas pipeline coming off the 

north slope and whether it was going to go through Alaska or into 

Canada. And the benefit of that has been the fact that we’ve been 

able to sit down ahead of time to start to get some idea about how 

that pipeline might affect sensitive species. 

In my opinion, strictly my opinion, I think that when that statement was issued, it may have been from a standpoint of not really 

knowing the impact potentially. And then trying to give it enough 

time so that we can get the scientific information from USGS that 

we would need to see about distribution, population size, and the 

other things that are associated with how the population is distributed. 

But I also want to add that there are mechanisms such as programmatic biological opinions that can streamline the consultation 

process. The more that we know about the population size, the 

more we know about particular routes that may be taken, we get 

a better idea about how that might impact the species. 

Senator INHOFE. You know, I remember, and were you around 

when they were discussing that, as far as the pipeline is concerned, 

its effect on the caribou? 

Dr. TUGGLE. Yes, sir. 

Senator INHOFE. And have you been up there and seen during 

the summer months how the caribou, the only shade they can find 

up there is the pipeline? 

Dr. TUGGLE. Yes, sir. 

Senator INHOFE. All right. In the final regulation designating the 

critical habitat of the Arkansas River Shiner, the Service stated 

that it would review the need for critical habitat in certain areas 

once the Oklahoma Farm Bureau Plan had been implemented. 

I’d ask, does the Service plan to propose excluding these areas 

in the future? 

Dr. TUGGLE. I think that, you know—and I apologize, I can’t give 

you a straight answer because I’m at a disadvantage in terms of 

my knowledge on where we might modify the critical habitat, but 

I think at this point we’re pretty satisfied with the way the critical 

habitat looks. That does not mean we would not be flexible in the 

future if we found that it might be more prudent to exclude areas. 

We’re trying to focus our attention on the conservation measures 

that would make the habitat better. I think that if we have good 

quality habitat, then that diminishes our need for critical habitat. 
13 

Senator INHOFE. Dr. Tuggle, I appreciate it very much. We’ll go 

ahead now and conclude this first panel if you don’t mind staying 

around. 

Dr. TUGGLE. Absolutely. 

Senator INHOFE. I would ask the other four witnesses that we’ve 

already introduced, if you’d please come forward to the table. 

Dr. TUGGLE. Thank you. 

Senator INHOFE. I’ve asked the timer to give me a little sign 

when the 5-minutes comes up, because as I say, your entire statement will be made part of the record and we want to get to our 

questions here. 

We’ll probably take them in order starting with you, Tom, and 

working across, if that’s all right. 

Mr. BUCHANAN. That would be fine, sir. 

Senator INHOFE. You’re recognized, Mr. Buchanan, for your opening statement. 

STATEMENT OF TOM BUCHANAN, ON BEHALF OF 

OKLAHOMA FARM BUREAU 

Mr. BUCHANAN. Thank you, Senator. First, I want to let you 

know that I, on behalf of Ag producers in Oklahoma, am very appreciative of the opportunity to be before you and the ladies and 

gentlemen here. We appreciate the opportunity. Thank you. 

I am Tom Buchanan. I’m from Jackson County, Oklahoma, in the 

southwestern part of the State. I have farmed for 27 years and 

manage currently the Lugert-Altus Irrigation District. 

The Lugert-Altus Lake was constructed by the Bureau of Reclamation during World War II. It first provided water to the farmers in the district in 1946 and has continually supplied an irrigation source. 

The district covers 48,000 acres of farmland with about 330 different landowners. Our primary crop is cotton. The gross receipts 

from the district are approximately $48 million annually. A giant 

boost to the local economy. 

Today I would like to address how the Endangered Species Act 

affects the oil and gas industry, which then directly impacts farming. 

Farmers appreciate God’s creatures as much as anyone. However, the ESA impacts our operations by increasing input costs and 

threatening our water supplies. 

Oklahoma ranks second in the Nation for production of natural 

gas; fourth in the Nation of wheat and cattle; and fifth in the Nation for peanuts. 

Our State has been called ‘‘the State of soil and oil.’’ However, 

high prices for oil and gas have negative impacts on productive agriculture. Natural gas is the most costly component used in manufacturing nitrogen fertilizer. Fertilizer prices have more than doubled over the past 15 years with no reprieve in sight. 

A recent Energy Information Administration outlook forecasts 

natural gas prices rising by 9.2 percent in 1907, and increasing another 3.7 percent in 1908. 

World demand for fertilizer grew by 13 percent between 1901 

and 2005 According to the Fertilizer Institute. Next year, Oklahoma farmers will face even steeper bills to fertilize crops. 
14 

The ESA is yet another factor contributing to the high cost of fertilizer by slowing down natural gas production. The American 

Burying Beetle, listed as endangered under the ESA, has delayed 

and impeded oil and gas production in Oklahoma. 

Another species of concern in Oklahoma is the Arkansas River 

Shiner, a threatened minnow found in two of our largest rivers. 

The Oklahoma Farm Bureau Legal Foundation, along with 20 

other organizations, worked with the U.S. Fish and Wildlife Service 

to refine critical habitat for the shiner. 

The Canadian River Municipal Authority had a 154 mile section 

of its management plan excluded for critical habitat. The OFB 

Legal Foundation is working to finalize a voluntary conservation 

management plan for the shiner in order to remove sections of the 

Cimarron and Canadian rivers from critical habitat also. These organizations have been proactive about preserving the shiner to protect their own water supplies. After the Klamath Basin crisis, 

many fear the needs of endangered species trump the needs of the 

humans. 

To illustrate the extensive impact of ESA, Oklahoma’s essential 

industries could be adversely impacted by the listing of a species 

that lives thousands of miles from here. The Fish and Wildlife 

Service has proposed listing polar bears as a threatened species 

based solely on projected impacts of global warming. 

Under the ESA, any activity authorized, funded or carried out by 

a Federal agency that might contribute to global warming, such as 

permits for livestock or oil and gas production, would be subject to 

consultation with the Fish and Wildlife Service to make sure that 

the proposed activity would not jeopardize the continued existence 

of polar bears. 

Consultations can take from 90 to 120 days to complete and result in permanent delays. Because the Service is required to consider the cumulative effects of all actions, even those activities with 

little impacts, such as, one Oklahoma livestock facility could be denied a permit or have its terms substantially altered because of 

supposed impacts to polar bears. 

Under the ESA, taking does not have to be direct, but can also 

constitute indirect impacts to species that might affect their breeding, feeding or sheltering. Livestock and oil and gas producers 

could conceivably be liable for taking polar bears, if they contribute 

to global warming. 

Another concern to agriculture is the Federal regulatory reach of 

the Clean Water Act or CWA. Water is essential to agriculture production. The scope of Federal jurisdiction is important to farmers 

and ranchers because jurisdictional determinations directly impacting agriculture activities, have the potential to interfere with the 

use of private land, and if applied too broadly, impede our ability 

to produce food and fiber. 

As currently drafted, S. 1870 and H.R. 2421 not only expand the 

geographic scope of CWA jurisdiction, but sweep many current agricultural activities into the regulatory reach of CWA simply because such activities may be conducted near some ditch, swale, 

wash, erosion feature or an ephemeral stream that would be 

deemed a water of the United States. 

Is the time up, ma’am? 
15 

Senator INHOFE. Yes, you’re getting close there. You can wrap it 

up real quickly, if you would. 

Mr. BUCHANAN. America’s agricultural productive capacity is unprecedented in world’s history. It allows our farmers and ranchers 

to meet the demands of our Nation’s growing population while 

maintaining the most affordable and safest food supply in the 

world. 

Farmers have made great strides in improving our environment, 

which is in better condition than any other time in our lives. The 

ESA continues to be a problem, while at the same time Congress 

is considering CWA legislation that would further burden productive agriculture with unprecedented regulation. 

Thank you, sir. 

[The prepared statement of Mr. Buchanan follows:] 

STATEMENT OF TOM BUCHANAN, ON BEHALF OF OKLAHOMA FARM BUREAU

I’m Tom Buchanan from Jackson County, Oklahoma, in the southwestern part of 

the State. I have farmed for twenty-seven years and manage the Lugert-Altus Irrigation District. 

The Lugert-Altus Lake was constructed by the Bureau of Reclamation during 

World War II. It first provided water to farmers in 1946. The District covers 48,000 

acres of farmland with about 330 landowners. Our biggest crop is cotton. The gross 

receipts from the District are approximately 48 million dollars annually. 

Today I would like to address how the Endangered Species Act affects the oil and 

gas industry, which then affects farming. Farmers appreciate God’s creatures as 

much as anyone. However, the ESA impacts our operations by increasing input costs 

and threatening our water supplies. 

Oklahoma ranks second in the Nation for production of natural gas, fourth in the 

Nation in wheat and cattle production, and fifth in the Nation for pecan production. 

Our State has been called the State of ‘‘soil and oil.’’ However, high prices for oil 

and gas have negative impacts on production agriculture. Natural gas is the most 

costly component used in manufacturing nitrogen fertilizer. Fertilizer prices have 

more than doubled over the past 15 years, with no reprieve in sight. A recent Energy Information Administration outlook forecasts benchmark natural gas prices rising by 9.2 percent in 2007 and increasing another 3.7 percent in 2008. World demand for fertilizer grew by 13 percent between 2001 and 2005, according to The 

Fertilizer Institute. Next year, Oklahoma farmers will face even steeper bills to fertilize crops. 

The ESA is yet another factor attributing to the high cost of fertilizer by slowing 

down natural gas production. The American Burying Beetle, listed as endangered 

under the ESA has delayed and impeded oil and gas production in Oklahoma. 

Another species of concern in Oklahoma is the Arkansas River shiner, a ‘‘threatened’’ minnow found in two of our largest rivers. The Oklahoma Farm Bureau Legal 

Foundation, along with 20 other organizations, worked with the U.S. Fish and Wildlife Service to refine critical habitat for the shiner. The Canadian River Municipal 

Water Authority had a 154 mile section of the Canadian River excluded from critical 

habitat based upon its management plan. The OFB Legal Foundation is working to 

finalize a voluntary conservation management plan for the shiner, in order to remove sections of the Cimarron and Canadian Rivers from critical habitat. These organizations have been proactive about preserving the shiner to protect their own 

water supplies. After the Klamath Basin crisis, many fear the needs of endangered 

species trump the needs of the humans. 

To illustrate the extensive impact of the ESA, Oklahoma’s essential industries 

could be adversely impacted by the listing of a species that lives thousands of miles 

from here. The Fish and Wildlife Service has proposed listing polar bears as a 

threatened species, based solely on projected impacts of global warming. 

Under the ESA, any activity ‘‘authorized, funded or carried out’’ by a Federal 

agency that might contribute to global warming (such as permits for livestock or oil 

and gas production) would be subject to consultation with the Fish and Wildlife 

Service to make sure that the proposed activity would not jeopardize the continued 

existence of polar bears. Consultations can take 90—120 days to complete and result 

in permit delays. Because the Service is required to consider the ‘‘cumulative effects’’ of all actions, even those activities with little impacts, such as one Oklahoma 
16 

livestock facility, could be denied a permit or have its terms substantially altered 

because of possible impacts to polar bears. 

GENIF

Under the ESA, taking does not have to be direct, but can also constitute indirect 

impacts to species that might affect their breeding, feeding and sheltering. Livestock 

and oil and gas producers could conceivably be liable for ‘‘taking’’ polar bears, if they 

contribute to global warming. 

Another concern to agriculture is the Federal regulatory reach of the Clean Water 

Act or CWA. Water is essential to agriculture production. The scope of Federal jurisdiction is important to farmers and ranchers because jurisdictional determinations 

directly impact agricultural activities, have the potential to interfere with the use 

of private land and, if applied too broadly, impede our ability to produce food and 

fiber. As currently drafted, S. 1870 and H.R. 2421 not only expand the geographic 

scope of CWA jurisdiction but sweep many agricultural activities into the regulatory 

reach of CWA simply because such activities maybe conducted near some ditch, 

swale, wash, erosion feature or ephemeral stream that would be deemed a ‘‘water 

of the United States.’’ 

The 1972 conference report of the CWA states ‘‘Congress intends the term ‘navigable waters’ be given its broadest possible constitutional interpretation 

unencumbered by agency determinations which have been made or may be made 

for administrative purposes.’’ It is one thing to give a term like ‘‘navigable waters’’ 

broad meaning and quite another to statutorily eliminate it or give it no meaning 

what so ever. Deleting ‘‘navigable waters’’ from the CWA significantly changes— 

rather than clarifies—original congressional intent. 

America’s agricultural productive capacity is unprecedented in the world’s history. 

It allows our farmers and ranchers to meet the demands of our Nation’s growing 

population while maintaining the most affordable, safest food supply in the world. 

Farmers have made great strides in improving our environment, which is in better 

condition than any other time in our lives. The ESA continues to be a problem, 

while at the same time Congress is considering CWA legislation that would burden 

production agriculture further with unprecedented regulation. 

Senator INHOFE. Thank you, Mr. Buchanan. Mr. Sullivan. 

STATEMENT OF ROBERT J. SULLIVAN JR., SULLIVAN AND 

COMPANY, LLC, ON BEHALF OF OKLAHOMA INDEPENDENT 

PETROLEUM ASSOCIATION 

Mr. SULLIVAN. Thank you, Senator, and good morning. My name 

is Bob Sullivan. For 32 years I’ve been an independent oil and gas 

producer. Eighteen of those years have been either sideways or 

negative financial experiences for me and my family. Fourteen 

have been positive. Needless to say, exploring for domestic oil and 

gas reserves is a high risk and volatile, and it’s a very personal 

thing to me. The health of our industry indeed, directly impacts me 

and my family. 

I appreciate the opportunity to appear here today, and I offer my 

remarks on behalf of the Oklahoma Independent Petroleum Association, or OIPA which is an association of approximately 1,700 

independent oil and gas producers who have similar concerns. 

In Oklahoma, independent producers make up the majority of 

the energy industry producing 96 percent of our State’s crude oil 

and 88 percent of our natural gas. 

In the minds of you and your fellow legislators, we independent 

producers should not be confused with major oil companies who are 

fully integrated with transportation, refining, marketing, and research and development capabilities. 

We independents live or die with production revenues at the 

wellhead and their associated costs. Part of these costs include pro-
17 

viding gross production taxes to the State that account for over $1 

billion of our $7 billion State budget. 

As an independent producer, as an Oklahoman, and as an American, I am very concerned about the trend of environmental regulations in this country in general and the Endangered Species Act in 

particular. 

The ESA is in dire need of significant reforms to ensure protection and recovery of endangered species while allowing for economic natural resource development. Only 20 out of over 1,300 species have been recovered, equating to a success rate of about one 

and a half percent. Let me offer some examples of the negative impact of the Act on the oil and gas industry. 

The American Burying Beetle located in the eastern part of Oklahoma was listed as an endangered species in 1989 based upon museum and collectors’ data—not on actual comprehensive field or 

survey data. 

Since its listing, the beetle has been found in many areas and is 

more widespread than originally thought which raises questions of 

its listing. 

In Oklahoma, the Fish and Wildlife Service policy was to allow 

oil and gas construction activities to occur only in winter months 

when the American Burying Beetle was thought to hibernate. 

In 2002, the Fish and Wildlife Service Tulsa office changed its 

policy relating to the wintertime oil and gas construction activity 

without notification to the public and without new data to support 

such a change. 

This change in policy came to light when the USFWS Tulsa office 

determined that a wintertime pipeline construction project to connect a natural gas well would adversely affect the American Burying Beetle. The project was unnecessarily delayed costing the operator, royalty owners, the State of Oklahoma, and other various parties millions of dollars. 

There is no data that indicates the American Burying Beetle population has been affected in any manner by oil and gas activities 

in wintertime or in summertime. However, the oil and gas industry 

is implementing the Wildlife Service requirements such as baiting 

away to protect the beetle. 

Baiting away as I’m sure you know is putting dead chickens on 

the ground to see if the beetles want to eat. And it occurs to me, 

Senator, that in addition to the oil and gas operators, there are at 

least two more parties that would find that distasteful, one would 

be the taxpayers, and the other would be the chickens. 

Independent producers take their environmental responsibilities 

very seriously. But the rare exception of an occasional rogue independent producer, the people I work with and compete against in 

the search for oil and gas are very responsible citizens. We spend 

far more time, effort and money on environmental precautions and 

safeguards that exceed State and Federal regulations than most, if 

not all, other industries. 

Whatever environmental regulations apply to our operations, we 

voluntarily exceed them, first, because we’re simply good citizens 

who want to do the right thing, and second, because we know the 

painful consequences of environmental mishaps in our field operations. 
18 

Furthermore, some 14 years ago Oklahoma’s producers and royalty owners formed the Oklahoma Energy Resources Board, OERB, 

for the purpose of cleaning up unsightly land scars across our State 

that were caused by our industry prior to the establishment of both 

State and Federal environmental regulations. OERB also provided 

the general public and our schools with extensive education programs about the industry. 

To fund this environmental initiative, OERB collects self-imposed 

levies on oil and gas production from producers and royalty owners, 

and annually spends approximately $12 million to clean up sites 

and to honor these education programs. 

Since inception, almost 8,000 sites across Oklahoma have been 

cleaned up at no cost to the landowner or the taxpayers. 

As a responsible operator in the field, my experience has been 

that most environmental initiatives coming from the Federal Government are based on emotion and not on solid, convincing, unbiased, scientific facts. 

Sensible environmental regulations to protect the environment 

and public and private property owners are not only needed, but 

embraced by independent producers. 

Senator INHOFE. Mr. Sullivan, try to wrap it up if you would, 

please. 

Mr. SULLIVAN. OK. I had a comment about global warming I’ll 

pass on. 

Senator INHOFE. No, I want to hear that. 

Mr. SULLIVAN. I thought that would get you. Kind of a baiting, 

you know. . . As an example of overreaching the current—is the 

current global climate debate. Any climate change policy established by our Federal Government must ensure that all major 

greenhouse gas emitting countries must be included without ignoring developing countries that are accelerating the carbon dioxide 

emissions. 

Although I’m personally not yet convinced that human activities 

are causing harmful global climate change, I do agree there are 

some common sense steps we can take while that debate is being 

resolved. 

Clean burning natural gas must be recognized as a viable solution to greenhouse emissions and the sequestration of CO2 is very 

apt in this case. 

I’ll finish up here by just saying in summary, the independent 

producers willingly and enthusiastically embrace our role as responsible stewards of the environment. Our daily performance in 

the field and our demonstrated success through OERB conclusively 

support the seriousness with which we take our role. 

Senator, I do thank you in taking leadership in the Senate for 

common sense environmental regulations. That’s what we need 

here is common sense. 

[The prepared statement of Mr. Sullivan follows:] 

STATEMENT OF ROBERT J. SULLIVAN JR., SULLIVAN AND COMPANY, LLC ON BEHALF

OF OKLAHOMA INDEPENDENT PETROLEUM ASSOCIATION

Good morning Senator Inhofe, my name is Bob Sullivan. 

For 32 years I have been an independent oil and gas producer. Eighteen of those 

years have been either sideways or negative financial experiences for me and my 

family. Fourteen years have been positive. Needless to say, exploring for domestic 
19 

oil and gas reserves is a high risk, volatile business. As a point of interest, I pay 

for the food, clothing, shelter, and education for my wife and six children out of the 

same checking account that I pay for drilling exploratory wells. The health of our 

industry is a very personal matter to me. 

I appreciate the opportunity to appear here today, and I offer my remarks on behalf of the Oklahoma Independent Petroleum Association, which is an association 

of approximately 1,700 Oklahoma independent oil and gas producers who have similar concerns. In Oklahoma, independent producers make up the majority of the energy industry producing 96 percent of our State’s crude oil and 88 percent of our 

natural gas. In the minds of you and your fellow legislators, we independent producers should not be confused with major oil companies who are fully integrated 

with transportation, refining, marketing, and research and development capabilities. 

We independents live or die with production revenues at the wellhead and the associated costs. Part of these costs includes providing gross production tax to the State 

that accounts for over $1 billion of the State’s $7 billion budget. 

As an independent producer, as an Oklahoman, and as an American, I am very 

concerned about the problems our industry faces regarding the Endangered Species 

Act (ESA). 

The ESA is in dire need of significant reforms to ensure protection and recovery 

of threatened and endangered species while allowing for economic natural resource 

development. Since its inception, only 20 species have been recovered, equating to 

a success rate of less than 1.5 percent. The following information provides examples 

of why ESA reform is needed. 

1. Improved Data 

• The U.S. Fish and Wildlife Service (USFWS) uses limited or incomplete data, 

deemed ‘‘best available’’ data, to make listing, policy and critical habitat decisions. 

For example, the American Burying Beetle, located in the eastern part of Oklahoma, 

was listed as an endangered species in 1989. This listing was based on museum and 

collector’s data—not actual comprehensive field or survey data. Since its listing, the 

beetle has been found in many areas and is more widespread than originally 

thought which raises questions regarding its initial listing. 

• Oil and gas exploration and production activities have been conducted in eastern Oklahoma for well over 50 years. There is no evidence or data that indicates 

the American Burying Beetle population has been affected in any manner by oil and 

gas exploration and production activities in wintertime or summertime, yet our industry is implementing various requirements to avoid a ‘‘taking’’. There is no scientific data showing that the USFWS’s ‘‘baiting away’’ requirements are effective in 

protecting the American Burying Beetle. For all we know, this technique draws 

them to our sites. 

• For many years in Oklahoma, the USFWS’s policy was to allow oil and gas construction activities to occur in the winter months when the American Burying Beetle was thought to hibernate. In 2002, the USFWS Tulsa Field Office changed its 

policy related to winter time oil and gas construction activity without any notification to the public and without new data to support such a change. This change in 

policy came to light when the USFWS Tulsa Field Office determined that a winter 

pipeline construction project to connect a natural gas well would adversely affect the 

American Burying Beetle. The project was unnecessarily delayed costing the operator, royalty owners, the State of Oklahoma, and other various parties millions of 

dollars. 

2. Scheduled Recovery Plan Updates. The ESA requires that the USFWS conduct 

a status review of each listed species every 5 years. The 1991 Recovery Plan for the 

American Burying Beetle is being reviewed and updated this year for the first time. 

New information needs to be considered and incorporated into these plans on a 

timely basis. For example, the American Burying Beetle is thriving in Oklahoma, 

and it is apparent that industry’s activities are not harming the species; however, 

our industry continues to implement requirements to protect it. 

3. Management Action Plans. There are no requirements for the USFWS to clearly identify, prioritize and fund specific data or research needs to determine the true 

threats to a listed species. In addition, there are no specific management actions or 

goals to remediate those threats, or to monitor the progress of those actions to determine if they are effective. Species like the American Burying Beetle have been studied for years with little knowledge gained about the species that can be used to promote its recovery. 

4. Consistent Protection Requirements. In many instances, species cross USFWS 

regional jurisdictions. The various USFWS regions do not have consistent protection 

requirements. For example, in Oklahoma, the requirement for oil and gas operators 
20 

to avoid ‘‘taking’’ an American Burying Beetle is different from the requirements in 

Arkansas and Texas. 

5. Listing and Critical Habitat. Listing requirements should be better defined and 

critical habitat should be eliminated or more narrowly defined and designated only 

if alternative options do not exist or do not work. Other options to avoid listing and 

critical habitat designations should include voluntary pre-listing activities and voluntary conservation efforts by industry, associations, and private citizens. 

6. Economic Impacts. The USFWS does not consider the economic impacts to industries such as the oil and gas industry during listing decisions or internal policy 

decisions to protect a species. The impacts to the oil and gas industry operators, especially small operators, can be costly. These costs cannot be transferred to a customer as compared to other industries. 

7. Timing of Protection. In some instances, the USFWS begins protection of a species before it is formally listed. These USFWS’s pre-listing requirements are passed 

on to other Federal agencies like the Bureau of Land Management where they are 

incorporated into their permit to drill requirements. 

8. Unnecessary & Unproductive Litigation. Many environmental groups file lawsuits to force the USFWS to list a species or to designate critical habitat. A large 

portion of the USFWS’s budget over the past few years has gone to fighting these 

types of lawsuits instead of protecting the species. Changes should be made to the 

ESA to limit the number of lawsuits and utilize available funds where it is most 

needed—protecting the listed species. 

Finally, on a related issue, legislation is being considered that will greatly expand 

the jurisdiction of the Clean Water Act by changing the waters that are 

Governmently regulated from ‘‘navigable waters’’ to ‘‘waters of the U.S.’’ If this occurs, it will increase the number of Corps of Engineers’ Section 404 permits our industry would have to obtain resulting in more endangered species consultations 

with the USFWS. 

We can do better than this, and I am confident that you can lead us to a better 

regulatory climate. Independent producers stand ready to assist with sensible regulatory improvements. 

Thank you for the opportunity to present this opinion today. 

Senator INHOFE. I thank you, Mr. Sullivan. 

Ms. Bower-Moore. 

STATEMENT OF DRU BOWER-MOORE, REGULATORY ADVISOR, 

WESTERN DIVISION, DEVON ENERGY CORPORATION 

Ms. BOWER-MOORE. Thank you Mr. Chairman. My name is Dru 

Bower-Moore and I’m a regulatory specialist in Wyoming for Devon 

Energy Corporation where I specialize in public land issues. I have 

dealt extensively with issues affecting industries’ ability to access 

and develop public lands of which the Endangered Species Act 

plays a significant role. 

We would like to thank the committee for the opportunity to testify at the field hearing and for the opportunity to offer you new 

ways to improve the law. 

Devon supports the original purpose of the Endangered Species 

Act, which was to provide protection for species that have been 

proven, through peer-reviewed science, to be threatened with extinction. However, the Endangered Species Act, as currently utilized, is not achieving its purpose. Congress needs to act to reform 

and improve the listing and de-listing components of the law and 

prevent its abuse by special interest groups. 

The Endangered Species Act, during its 30-year history, has produced minimal success for recovery of a species once designated as 

threatened or endangered. Yet, the Fish and Wildlife Service is inundated with petitions to list a species. 

Citizen nominations for proposed additions to list a species under 

the Endangered Species Act pose substantial problems not only to 

the Fish and Wildlife Service, which must respond to the petitions, 
21 

but also for other Federal agencies, States, lessees, and private 

landowners. 

To be clear, the problem is not protection of truly endangered— 

threatened or endangered species, rather, it is the fact that anyone 

can submit a petition to list a species and the law currently contains no requirement that such a petition be supported by the use 

of best scientific and commercial data. 

Regardless of the science supporting the petition, or lack thereof, 

the Service has 90 days to respond. 

Furthermore, if the Fish and Wildlife Service issues a positive 

finding on a petition, it negatively impacts States, landowners and 

resource users because a species is elevated to a new level of protection even though it has not been formally designated and despite the fact that the petition may not be supported by sound, scientific evidence demonstrating the need to list. 

Once a petition has been filed, State and Federal agencies have 

internal policies that elevate the animal or plant to a sensitive or 

special status species worthy of additional protection. This standard is then applied in the NEPA process with the potential result 

of additional mitigation measures to protect the species which are 

imposed. 

Once a petition is filed, the species is treated as a de facto endangered species before the Fish and Wildlife has even completed 

its analysis. While this action results in a heightened level of protection to prevent listing under ESA, such protection and its attendant costs may not be warranted if the 90-day finding is not 

supported by sound, scientific evidence. 

The Fish and Wildlife Service should not be required to spend 

precious staff time on petitions lacking scientific merit. 

The Endangered Species Act must provide a threshold requirement regarding the information filed in support of a petition to list. 

Unless and until the threshold is met, the Service would not be required to act on the petition. 

We urge Congress to amend ESA to provide a threshold level for 

information required to support a petition. 

Congress must make the Fish and Wildlife Service accountable 

for the timely implementation of a recovery plan once a species is 

listed. One way to achieve this is to mandate that the recovery 

plan be developed concurrently with the Service’s decision to list 

the species. Presently, the agency decides to list a species and then 

later determines the recovery levels for that species. 

The Service can often take years after the listing before issuing 

a recovery plan. It is far more logical to require the recovery plan 

to be formulated at the same time the species is listed. The recovery plan should also be required to identify population goals for the 

species’ recovery in addition to its protection of critical habitat. 

Therefore, we urge Congress to revise ESA to require the formulation of a recovery plan concurrently with a decision to list and 

to require that once the objective in the recovery plan has been 

met, hard release language would provide that the species be automatically de-listed. 

While ESA issues play a significant role in our ability to access 

and develop Federal lands, there are other factors that impact our 

ability to produce energy in a timely manner. The National Envi-
22 

ronmental Policy Act process on public lands is exhaustive and is 

becoming more cumbersome over time. 

The NEPA documents are taking longer to complete due to the 

added and multiple layers of analysis to determine impacts. Some 

EISs are taking six to 7 years for approval, meanwhile development of oil and gas activity is put on hold until that analysis is 

completed. That’s affecting our ability to get natural gas to the consumer. 

This delay in issuing APDs is significantly impacting our ability 

to provide energy to consumers in a timely manner. The process 

needs to be more efficient and the provisions in the Energy Policy 

Act of 2005 worked to achieve that. 

Devon Energy and other companies in the large independent sector have a record of investing more than we earn, and 100 percent 

or more of our total cash-flow is reinvested to find and produce 

more energy. 

Senator INHOFE. OK, try to wrap up, Ms. Bower-Moore. 

Ms. BOWER-MOORE. I’m just about done, Senator. But we cannot 

risk making multibillion dollar decisions only to have royalty, tax 

or regulatory policies change, pulling project economics from underneath us. The U.S. Senate must maintain the Energy Policy Act of 

2005 provisions to prevent a decrease in energy supplies and an increase in costs to the consumer. 

In conclusion, Mr. Chairman, we thank you again for the opportunity to share Devon’s thoughts on this important issue. 

[The prepared statement of Ms. Bower-Moore follows:] 

STATEMENT OF DRU BOWER-MOORE, REGULATORY ADVISOR, WESTERN DIVISION, 

DEVON ENERGY CORPORATION

Mr. Chairman and members of the Committee, my name is Dru Bower-Moore and 

I am a regulatory specialist in Wyoming for Devon Energy Corporation where I specialize in public land issues. I have worked in the public lands field for over 18 years 

and previously held the position of Vice President for the Petroleum Association of 

Wyoming. In these positions, I have dealt extensively with issues affecting industries ability to access and develop public lands of which the Endangered Species Act 

plays a significant role. We would like to thank the Committee on Environment and 

Public Works for the opportunity to testify at this field hearing regarding ‘‘A Perspective on the Endangered Species Act’s Impacts on the Oil and Gas Industry’’ and 

for the opportunity to offer ideas for improving the current law. 

Devon Energy is a leading U.S.-based independent oil and gas exploration and 

production company with significant operations in the Intermountain West, offshore, 

the Gulf of Mexico and in the mid-continent region. Although we do have international operations, 90 percent of our production is focused on North America. 

DEFINING THE ENDANGERED SPECIES ACT PROBLEM

Devon supports the original purpose of the Endangered Species Act (ESA), which 

was to provide protection for species that have been proven through peer-reviewed 

science to be threatened with extinction. However, the Endangered Species Act, as 

currently implemented by the U.S. Fish and Wildlife Service (FWS) is not achieving 

this purpose. Congress needs to act to reform and improve the listing and de-listing 

components of the law and prevent its abuse by special interest groups. 

In order to operate on Federal lands, both the lessee and the applicable Federal 

agency must comply with a myriad of laws designed to protect the environment. 

Devon works closely with 

Federal agencies to comply with requirements of the Federal Land Policy and 

Management Act (FLPMA), the National Environmental Policy Act (NEPA), and 

ESA, among others, before beginning any operations on Federal lands. Under Section 7 of ESA, Federal agencies are required to consult with the FWS if candidate, 

proposed, threatened, or endangered species and their habitat have been identified 
23 

in the area within which a project is proposed. The environmental analysis for a 

proposed project (and required impact mitigation) can become complex and costly 

given the number of issues that Bureau of Land Management (BLM) is required to 

address. Add in the analysis of the project area for the occurrence of species of concern or its habitat [currently 138 candidate, 4 proposed, and 607 threatened endangered species (figures as of August 2007 from the U.S. Fish and Wildlife Service 

website)], and the project costs escalate as do the mitigation requirements. Species 

do not need to occur in the project area to be covered by the analysis if suitable 

habitat exists; therefore, additional conservation measures are most often required 

by the agency. 

The consultation process between the land managing agencies and the FWS, 

which can include the development of a biological assessment, biological opinion, or 

both, determines whether such a project may affect a candidate, proposed, threatened, or endangered species and, if necessary, includes recommendations for the 

protection of the identified species and its habitat. Although there have been improvements in the last several years, in some States this integral step has become 

a bottleneck preventing the timely processing of permits. Because of the vast number of lawsuits filed against FWS, the very funds FWS needs to carry out these critical duties are being diverted to defend litigation. Without consultation and the necessary documentation from FWS, BLM and other Federal agencies are prevented 

from acting in a timely fashion on a proposed project, leading to unnecessary delays. 

We urge Congress to enact reforms to prevent such frivolous lawsuits; thereby, freeing FWS to carry out those duties that will truly serve the purposes of the ESA. 

ENDANGERED SPECIES ACT EFFECTS ON LANDOWNERS

The Endangered Species Act, unlike some other Federal laws, applies generally 

to both private and Federal lands. However, ESA does not provide Federal agencies 

with the authority to inventory private lands for the potential existence of threatened or endangered plant or animal species. Despite this lack of authority, Federal 

agencies have been able, in the case of split eState situations (Federal mineral/private surface), to require a Federal lessee to inventory the private surface and provide such information to the Federal agency. In the absence of such information, the 

land managing agency assumes a ‘‘worst case scenario’’ and devises additional protection measures and stipulations to be placed on the oil and gas project based on 

this assumption. This places unfair burdens on both the private surface owner and 

the Federal lessee. Moreover, it creates unnecessary conflict between the Federal 

mineral lessee and the private surface owner. The ESA should be revised to clearly 

State that no Federal agency has the authority to require an inventory of private 

surface merely because a proposed project is covering the underlying Federal minerals. In the absence of such a reform, a Federal mineral lessee is placed in the position of having to obtain information, oftentimes against the wishes of the applicable 

private surface owner, that the Federal agency has no right to obtain. 

If the law were revised to prohibit a Federal agency from requiring an inventory 

of private surface before being able to act on an application to develop the underlying Federal minerals, this would also serve to alleviate the concerns of the private 

surface owners regarding misuse of this information by other private parties and 

organizations. Even if Congress does not prevent the collections of such information, 

it should protect such information from misuse. Private parties should not be able 

to submit a Freedom of Information Act (FOIA) request to a Federal agency to obtain ESA survey information gathered on private lands as that documentation 

should be held in confidence unless the landowner agrees to release the information. 

Congress has already established this precedent in other laws, and it should enact 

a similar provision here to protect private property rights. 

Congress could provide further relief to both a Federal mineral lessee and an affected private surface owner by providing incentives to the private surface owner 

to allow access to its property. A reform of this nature would have a twofold benefit. 

First, it would encourage the recovery of potentially threatened and endangered species by providing the information necessary to truly assess the status of a species. 

Second, it would remove one of the conflicts between private surface owners and 

Federal mineral lessees. 

INCENTIVES FOR VOLUNTARY PROGRAMS

Any reform of ESA should also include incentives for landowners and other public 

resource users to implement conservation measures on public lands. Notwithstanding the fact that the proposal to list the Mountain Plover was withdrawn in 

September 2003, several companies, including Devon, chose to be proactive with re-
24 

spect to protection of the species and its habitat. This group of companies approached FWS and began to negotiate a Memorandum of Understanding (MOU) to 

cooperate in ‘‘good faith’’ and in a timely manner to develop a Candidate Conservation Agreement with Assurances (CCAA) for the Mountain Plover and the Whitetailed Prairie Dog in Wyoming and Colorado. The CCAA would have provided assurances that if the Mountain Plover or White-tailed Prairie Dog were eventually listed 

as threatened or endangered, the FWS would not impose conservation measures on 

the agreement participants that were more stringent than those already agreed to 

by the parties. Because of the nature of landownership in the area to be covered 

by the CCAA, it would have been applicable to both Federal and private lands since 

sixty-six percent (66 percent) of the mineral and forty-nine percent (49 percent) of 

the surface eState is managed by Federal agencies in Wyoming. 

As the MOU was being finalized, the FWS published in the Federal Register a 

final rule (Safe Harbor Agreements and Candidate Conservation Agreements with 

Assurances; 69 Fed. Reg. 24084, 24092—24094 (May 3, 2004) (codified at 50 C.F.R. 

parts 13, 17) that virtually eliminated the ability we had to be proactive, and removed any incentive to protect a candidate species through the development of a 

CCAA. The final rule stated that Candidate Conservation Agreements with Assurances could only be developed on private lands. 

Congress must provide leadership in promoting voluntary efforts to conserve species and its habitat regardless of landownership. When 49 percent of the surface and 

66 percent of the mineral eState in Wyoming are managed by Federal agencies who 

then lease these resources to others for development, the law must provide conservation opportunities to those who have leases to use either the surface or the 

mineral estate. If voluntary efforts to conserve a species are limited to solely privately owned lands, a valuable conservation tool will be needlessly removed. Although FWS is moving toward the recovery success of a few species under ESA, 

Congress should take all possible steps to provide avenues of conservation. Assurances and incentives to private entities, both landowners and energy companies, implementing voluntary conservation measures must be a part of ESA as this provides 

an essential tool to prevent the potential loss of a species and its habitat through 

a collaborative effort of private and public entities. 

PETITIONS TO LIST A SPECIES

The Endangered Species Act, during its 30-year history, has produced minimal 

success for recovery of a species once designated as threatened or endangered. Yet, 

FWS is inundated with Petitions to list species. Citizen nominations for proposed 

additions to the list of species protected under ESA pose substantial problems not 

only for FWS, which must respond to the 

Petitions, but also for other Federal agencies, states, lessees and private landowners. To be clear, the problem is not protection of truly threatened or endangered 

species, rather, it is the fact that anyone can submit a Petition to list a species, and 

the law currently contains no requirement that such a Petition be supported by use 

of the best scientific and commercial data. Regardless of the science, or lack thereof, 

supporting a Petition, the FWS has 90-days to respond. 

In the absence of specific information, agencies typically give equal consideration 

to proposed and candidate species even though ESA’s specific requirements regarding species status, distribution and habitat information are incomplete. The protective measures of ESA do not apply to the proposed species and its habitat. The protections of ESA are limited to those species actually listed as either threatened or 

endangered. However, in practice, the Federal land management agencies actually 

impose ESA protections to candidate and proposed species in addition to those truly 

threatened or endangered. 

The FWS should not be required to spend precious staff time on Petitions lacking 

scientific merit. We urge Congress to amend ESA to provide a threshold requirement regarding the information filed in support of a Petition to list. Unless and 

until that threshold is met, FWS would not be required to act on a Petition. This 

approach would have a twofold benefit. First, it would ensure that the information 

required to begin the listing process would be at least as stringent as the information required to de-list a species. Second, it would potentially free FWS from some 

of the frivolous lawsuits with which it is currently bombarded; thereby, allowing 

funds that would have otherwise been expended to defend the lawsuits to be used 

to carry out those activities that would truly serve the purposes of ESA. 

Recent petitions to list the Greater Sage Grouse and the White-tailed Prairie Dog 

are prime examples of Petitions filed without adequate supporting scientific information. Industry trade organizations, of which Devon is a member, submitted detailed, scientific comments challenging both petitions. In both instances, industry 
25 

after a careful review of the petitions by qualified experts, found that the petitions 

contained numerous flaws, errors, inaccuracies, contradictions, misstatements, misrepresentations, unsubstantiated positions and biased opinions. Petitions of this nature do not rise to the level of scientific sufficiency to warrant any action by the 

FWS, much less a positive 90-day finding. The standards for filing a Petition and 

granting a positive 90-day finding must be raised to require adequate, peer-reviewed 

science. 

Furthermore if the FWS issues a ‘‘positive finding’’ it negatively impacts States, 

landowners and resource users because a species is elevated to a new level of protection even though it has not been formally listed as candidate, proposed, threatened, 

or endangered, and despite the fact that the Petition may not be supported by 

sound, scientific evidence demonstrating the need to list. Once a Petition has been 

filed, State and Federal agencies have internal policies that elevate the animal or 

plant to a ‘‘Sensitive or Special Status Species’’ worthy of additional protection. This 

standard is then applied during the NEPA process with the potential result that 

mitigation measures to protect the species may be imposed. Once a Petition is filed, 

the species is treated as de facto endangered before FWS has completed its analysis. 

While this action results in a heightened level of protection to prevent listing under 

ESA, such protection and its attendant costs may not be warranted if the 90-day 

finding is not supported by sound, scientific evidence. 

In addition, special interest groups are not only filing Petitions with the FWS to 

list a particular species with meager, if any, supporting scientific data, such groups 

are also seeking to have Federal agencies manage species habitat (whether the species is proposed for listing or not) as an Area of Critical Environmental Concern 

(ACEC). An ACEC designation usually carries additional restrictions on mineral development. 

The standards for filing a Petition to list and for issuing a 90-day finding must 

be more stringent, and FWS must be forced to undertake an analysis of the actual 

scientific data provided. Before a petition to list is granted a positive finding decision, it must be based upon the most current, viable, reliable, and accurate scientific 

data available. We urge Congress to amend ESA to provide a threshold level for information required to support a Petition to list; thereby the decision to list a species 

would be based on the same stringent standards as a decision to remove a species 

from the list. 

RECOVERY OF SPECIES

Congress must make FWS accountable for the timely implementation of a recovery plan once a species is listed. One way to achieve this is to mandate that a recovery plan be developed concurrently with FWS’ decision to list a species. Presently, 

the agency decides to list a species, and then it determines the recovery levels for 

the species. FWS can often take years after the listing before issuing a recovery 

plan. It is far more logical to require the recovery plan to be formulated at the same 

time the species is listed. The recovery plan should also be required to identify population goals for a species’ recovery and protection of its critical habitat. Currently, 

species are being listed for which there is little or no information about their populations or required habitats. 

If FWS does not have the information upon which to base a recovery plan how 

can it validly determine that a species is threatened? Therefore, we urge Congress 

to revise ESA to require the formulation of a recovery plan concurrently with a decision to list and to require that once the population objective in the recovery plan 

has been met, ‘‘hard release’’ language would provide that the species be automatically de-listed. 

The ESA should also be reformed to allow consideration of isolated, but thriving 

species’ populations. While we agree the FWS should be required to analyze a species throughout its entire range, it may not be necessary to list and protect a species 

as threatened or endangered range-wide. Not all populations may warrant the same 

level of protection in all areas, and ESA must provide flexibility in the management 

level for the species in different geographic locations. 

FRIVOLOUS ENVIRONMENTAL LITIGATION

Another important ESA reform issue to consider is litigation by ‘‘special interest 

groups’’ whose sole purpose is to delay or prevent development of natural resources. 

In Wyoming, virtually all lease sales, and most all of the project level EA’s or EIS’s, 

including geophysical projects, have been protested, appealed, or challenged at the 

agency level and in Federal court based on asserted violations of ESA and habitat 

destruction issues. The same is true for the other Rocky Mountain States. 
26 

Clearly, ESA has become the ‘‘tool’’ of choice to prevent oil and gas development 

on Federal lands without regard for the increased costs and delays in decisionmaking by land management agencies and the resultant impacts on the United 

States taxpayers and others who use the public lands. The cost of ‘‘ESA abuse’’ is 

high and litigation is abundant. Because Federal oil and gas lessees have contractual rights and obligations to develop Federal minerals, lessees are often required, 

or elect to intervene in these lawsuits to defend their rights. Intervention in these 

lawsuits obviously costs additional time and financial resources that could be put 

to better use developing domestic energy sources. If Congress enacts some of those 

reforms Devon has advocated here today, in particular requiring a threshold level 

for filing a petition to list and a 90-day finding, we believe such reforms will be a 

step in the right direction to preventing such abuses of ESA. 

RELATED ISSUES

While ESA issues play a significant role in our ability to access and develop Federal lands, there are other factors that impact our ability to produce energy in a 

timely manner. The National Environmental Policy Act (NEPA) process on public 

lands is exhaustive and is becoming more cumbersome over time. From the Resource Management Plan (RMP) stage to the Application for Permit to Drill (APD) 

issuance, there are at least four separate levels of NEPA analysis conducted, which 

includes consultation with several other cooperating agencies along the way. These 

NEPA documents (whether at the RMP or full field development phase) are taking 

longer to complete due to the added, and sometimes redundant, layers of analysis 

to determine impacts. Some EISs have taken 6 to 7 years for approval meanwhile 

development is put on hold until the analysis is completed. This delay in issuing 

APDs while extensive NEPA is conducted is significantly impacting our ability to 

provide energy to consumers in a timely manner. The process needs to be more efficient and the provisions in the Energy Policy Act of 2005 worked to achieve this 

purpose for example statutory categorical exclusions [See the section labeled ‘‘Energy Policy Legislation]. 

In addition we are seeing more requirements in the RMP and full field development EIS Records of Decision for monitoring and adaptive management prescriptions through ‘‘performance based’’ standards. While in theory it may make sense 

to monitor the impacts oil and gas activity has on other resources and adapt as necessary, in reality the land managing agencies do not have the funding or the staffing to comply with their obligations; thereby, leaving all of us vulnerable to litigation. Congress must consider appropriating additional funds for the land management agencies to comply with these requirements and prevent unnecessary legal 

challenges. 

ENERGY POLICY LEGISLATION

Many Members of Congress did their part in passing the Energy Policy Act of 

2005 to address the natural gas supply challenge by giving agencies a number of 

tools to allow them to process drilling permit requests in a more streamlined manner. Importantly, no environmental standard was waived nor was any step in the 

review process eliminated. Rather, Congress created several tools to allow agencies 

to process permits more efficiently. 

The Intermountain West currently supplies over 25 percent of the Nation’s natural gas. The National Petroleum Council estimates that this region has 284 trillion 

cubic feet (Tcf) of technically recoverable natural gas, enough to supply all of Americas current household energy needs for 60 years. Tools such as categorical exclusions allow for more efficient use of these resources in the Intermountain West. 

Devon Energy and other companies in the large independent sector have a record 

of investing more than we earn, and 100 percent or more of our total cash-flow is 

reinvested to find and produce more energy. But we cannot risk making multibillion 

dollar decisions only to have royalty, tax or regulatory policies change—pulling 

project economics out from under us. 

Instead of supporting laws that would assist industry in our ability to provide affordable energy to the citizens of this country and encourage less dependence on foreign energy, the House of Representatives recently passed the ‘‘Energy Policy Reform and Revitalization Act’’ (HR 3221). This legislation will effectively reduce funding and eliminate proactive steps to develop much needed energy resources, which 

in turn will slow the process and reduce supply. Congress should support laws that 

assume a good stable investment regime and smooth Government processes, which 

will promote continued investment in the development of this country’s onshore and 

offshore oil and gas reserves. The U.S. Senate must maintain the ‘‘Energy Policy 
27 

Act of 2005’’ provisions to prevent a decrease in energy supplies and an increase 

in costs to the consumer. 

RECOMMENDATIONS

In conclusion, Devon Energy appreciates Congress’s recognition of the important 

role the Endangered Species Act plays in allowing oil and gas exploration and development of Federal lands to meet the growing energy needs of this Nation. Devon 

recommends that Congress consider the following points: 

• Provide adequate funding to FWS in order to prevent bottlenecks on consultations and to promote the timely processing of permits to provide the country with 

energy to meet increasing demands. 

• Reform ESA to provide incentives for private property owners to allow access 

to their property for the limited purpose of evaluating the potential impacts of a proposed Federal action. 

• Reform ESA to promote voluntary efforts to conserve species and its habitat on 

Federal lands by entities / lessees with contractual natural resource management 

responsibilities. 

• Strengthen scientific justification criteria for listing Petitions to be as stringent 

as the scientific justification criteria required for the recovery and de-listing processes. 

• Require recovery plans to be developed at the time the species is listed and include population goals in the listing proposal for species recovery and its critical 

habitat. 

• Institute ‘‘hard release’’ language, which must be required by law, that would 

provide the species be automatically de-listed once population goals have been met. 

• Appropriate adequate funds for implementation of recovery programs to avoid 

placing unnecessary monetary burdens on private entities. 

• Reform ESA to provide flexibility in managing isolated populations in certain 

geographic areas to eliminate the ‘‘one-size-fits-all’’ requirements. 

• Congress must consider appropriating additional funds for the land management agencies to comply with these requirements and prevent unnecessary legal 

challenges. 

• The U.S. Senate must maintain the ‘‘Energy Policy Act of 2005’’ provisions to 

prevent a decrease in energy supplies and an increase in costs to the consumer. 

Mr. Chairman and members of the Committee, thank you again for the opportunity to share with you Devon’s thoughts regarding ‘‘A Perspective on the Endangered Species Act’s Impacts on the Oil and Gas Industry’’ along with an examination on ways to improve the current law. 

Senator INHOFE. Well, thank you very much for coming down to 

testify today. 

Mr. Haught. 

STATEMENT OF JIM HAUGHT, MANAGER, ENVIRONMENTAL 

SERVICES ONEOK, INCORPORATION 

Mr. HAUGHT. Thank you, Senator. And I want to thank you for 

the opportunity to provide testimony to the Committee from the 

pipeline perspective. 

The pipeline segment of the oil and gas industry is the critical 

link required to get energy from areas of production to the supply 

chain. 

My name is Jim Haught. I’m manager of Environmental Services 

at ONEOK, Inc. here in Tulsa where I have more than 15 years 

of experience in environmental permitting for energy projects. 

The focus of this hearing, the endangered species and its impact 

on the oil and gas industry, is an extremely important and timely 

topic for our business and the people who depend on our industry. 

In ONEOK’s more than 100 years in the industry, we’ve never 

had as many miles of pipeline scheduled for construction as we do 

today. 
28 

ONEOK is the parent of three local distribution companies serving more than two million end-use customers, primarily homeowners and small businesses. ONEOK is also the general partner 

of a master limited partnership whose primary focus is the gathering, processing and transportation of natural gas and natural gas 

liquids, which include ethane, propane, and butane. 

Underground pipelines have proven to be the safest and most efficient method to transport these products. Altogether, we are currently involved in one and a half billion dollars worth of pipeline 

construction and related infrastructure projects nationwide. These 

projects will be instrumental in supplying the energy and raw 

products required to sustain the economy and the quality of life enjoyed by Americans. 

The topic of infrastructure development brings me to the subject 

of this hearing and the points I want to make today about the impacts the Endangered Species Act and environmental regulations 

in general on the development of these energy projects. 

First, I want to make it abundantly clear that ONEOK’s core values include the protection of the country’s environmental and cultural resources. We work hand-in-hand with regulatory agencies to 

conduct extensive wildlife and other environmental surveys and are 

extremely sensitive to environmental issues before, during, and 

after construction. 

We believe, however, that there are opportunities to improve the 

regulatory processes. Many of the current regulatory practices add 

to the permitting timeline and burden without producing significant environmental benefits. 

The balance between environmental preservation and economic 

health can best be achieved through regulatory processes that utilize a flexible and measured approach. 

A major point I want to make today is that pipeline construction 

projects are inherently different from many of the other construction projects subject to environmental regulations. Pipelines by nature are very narrow, they’re linear, and they’re buried. They pass 

through areas and have few above-ground facilities. 

Once construction is complete and the pipeline is covered, restoration is initiated to repair these disturbed areas and return 

them to normal contour and encourage revegetation. Local animal 

and plant species will return in time. 

Like all such construction projects, there are disturbances from 

pipeline construction. It should be noted, however, that following 

installation of a pipeline, there are often benefits to wildlife and 

plant species. 

The impact of the Endangered Species Act to the pipeline segment of the oil and gas industry varies with the locale and species 

of concerns we’ve heard. There is no doubt that the Endangered 

Species Act has had some successes as the foundation of maintaining and re-establishing populations of a number of threatened species. However, some of the processes through which the Act is implemented have negative impacts on the oil and gas industry and 

private landowners. 

Landowner concerns that result in delays completing endangered 

species requirements can threaten a project’s schedule and potentially its viability. 
29 

In areas of rapid energy development, some landowners have resisted granting access for wildlife surveys that are required beyond 

the boundary of the proposed project. These landowners report they 

consider it an intrusion on their private property rights for Federal 

agencies to require project applicants to conduct sometimes repeated investigations on their property outside of the project footprint. 

Although additional agency consultation or other means may be 

available to determine potential impacts if access is not granted, 

these options could result in unanticipated delays of months. 

Minor delays and permit issuance can sometimes significantly increase costs and/or cause major delays in project completion. 

Projects are often planned so that construction will occur during 

the time of the year that will minimize environmental impacts. 

Regulatory approved delays can push construction back to less 

desirable timeframes. For example, in much of the country construction pushed to winter is often slowed by poor weather conditions and shortened day lengths. This causes a longer construction 

period overall and a resulting increased potential for environmental 

impacts. 

In an effort to expedite the installation of energy pipelines, we 

recommend that agencies respond to the inherent difference between energy pipeline and other project types by continuing to implement processes to allow the permitting effort to be proportionate 

to the potential risks. 

In closing, we believe that practices can be developed that would 

allow energy-project permitting to be expedited while still ensuring 

adequate protection of the environment. 

The foundation for these changes would be that the magnitude 

of the permitting process would be proportional to the potential impacts of the project. This measured approach would lesson the burden on limited agency resources and promote efficiency. 

Expedited energy project approvals would be consistent with the 

current Executive and congressional guidance that already exists. 

What is the impact of the Endangered Species Act and other environmental protection programs on the oil and gas industry? In 

most cases, the impacts are reasonable. However, the impact of unnecessarily prolonged permitting periods and restrictions can be 

detrimental to the promotion of energy production. 

We ask that regulatory agencies be guided to develop creative opportunities to continue to protect the environment while promoting 

energy independence. 

Senator INHOFE. Try to wrap up now if you would, please. 

Mr. HAUGHT. Thank you for your time. 

[The prepared statement of Mr. Haught follows:] 

STATEMENT OF JIM HAUGHT, MANAGER, ENVIRONMENTAL SERVICES

ONEOK, INCORPORATION

The Endangered Species Act’s Impacts on the Oil & Gas Industry Thank you, 

Senator Inhofe. And thank you for the opportunity to testify before the Committee 

on Environment and Public Works. 

My name is Jim Haught. I am Manager of Environmental Services at ONEOK, 

Inc. (ONEOK) here in Tulsa where I have more than 15 years experience in environmental permitting for energy projects. The focus of this hearing—the Endangered 

Species Act and its impact on the oil and gas industry—is an extremely important 

and timely topic for our business and the people who depend on our industry. As 
30 

America’s population and economy continue to grow, so does the need for energy and 

related raw products. We at ONEOK are working hard to satisfy that need. In 

ONEOK’s more than 100 years in the industry, we have never had as many miles 

of pipeline scheduled for construction as we do today. 

ONEOK is the parent of three local distribution companies serving more than two 

million end-use customers, primarily homeowners and small businesses. ONEOK is 

also the general partner of a master limited partnership whose primary focus is the 

gathering, processing and transportation of natural gas and natural gas liquids, 

which includes ethane, propane and butane. 

Underground pipelines have proven to be the safest and most efficient method to transport these products. Altogether, we are involved in $1.5 billion worth of pipeline construction and related infrastructure projects nationwide. These projects will 

be instrumental in supplying the energy and raw products required to sustain the 

economy and the quality of life enjoyed by Americans. 

The topic of infrastructure development brings me to the subject of this hearing 

and the points I want to make today about the impacts that the Endangered Species 

Act and environmental regulations in general have on the development of these 

projects. 

First, I want to make it abundantly clear that ONEOK’s core values include the 

protection of the country’s environmental and cultural resources. We work hand-inhand with regulatory agencies to conduct extensive wildlife and other environmental 

surveys and are extremely sensitive to the environment before, during and after 

construction. We believe, however, that there are opportunities to improve regulatory processes. Many of the current regulatory practices add to the permitting 

timeline and burden without producing significant environmental benefits. The balance between environmental preservation and economic health can best be achieved 

through regulatory processes that utilize a flexible and measured approach. 

A major point I want to make today is that pipeline construction projects are inherently different from the many other construction projects subject to environmental regulation. Pipelines are narrow, linear and buried. They pass through areas 

and have few above-ground facilities. Once construction is complete and the pipeline 

is covered, restoration is initiated in the disturbed areas to return them to normal 

contour and encourage re-vegetation. Local animal and plant species typically return in time. 

Like all such construction projects, there are disturbances from pipeline construction. It should be noted, however, that following installation of a pipeline there are 

often benefits to wildlife and plant species. Just recently, a wildlife manager told 

me that a previous pipeline project through the wildlife management area resulted 

in positive outcome from the corridor of mixed vegetation that attracted concentrations of large game and has helped promote an increase in the previously declining 

grouse population. 

The impacts of the Endangered Species Act to the pipeline segment of the oil and 

gas industry vary with the locale and species of concern. There is no doubt that the 

Endangered Species Act has been successful as the foundation for re-establishing 

healthy populations of a number of previously threatened species. However, some 

of the processes through which the Act is implemented have negative impacts on 

the oil and gas industry and private landowners. 

Landowner concerns that result in delays completing endangered species requirements can threaten a project’s schedule and potentially its viability. In areas of 

rapid energy development, some landowners have resisted granting access for wildlife surveys that are required beyond the boundary of the proposed project. These 

landowners report they consider it an intrusion on their private property rights for 

Federal agencies to require project applicants to conduct sometimes repeated investigations on their property outside of the proposed project footprint. Although additional agency consultation or other means may be available to determine potential 

impacts if access is not granted, these options could result in unanticipated delays 

of several months. 

Minor delays in permit issuance can sometimes significantly increase costs and/ 

or cause major delays in project completion. Projects are often planned so that construction will occur during the time of year that will minimize environmental impacts. Regulatory approval delays can push construction back to a less desirable 

timeframe. For example, in much of the country construction pushed to winter is 

often slowed by poor weather and shortened day length. This causes a longer construction period overall and a resulting increased potential for environmental impacts. 

In an effort to expedite the installation of energy pipelines, we recommend that 

agencies respond to the inherent difference between pipeline and other project types 

by continuing to implement processes that allow the permitting effort to be propor-
31 

tionate to the potential risks. An example of a significant change would be the development of standard permits, similar to the U.S. Army Corps of Engineers’ nationwide Permits, for pipeline construction. These permits would direct the applicant toward pre-approved guidelines to identify environmental impacts and then allow use 

of appropriate, approved mitigation measures. 

In closing, we believe that practices can be developed that would allow energyproject permitting to be expedited while still ensuring adequate protection of the environment. The foundation for these changes would be that the magnitude of the 

permitting process would be proportional to the potential impacts of the project. 

This measured approach would lessen the burden on limited agency resources and 

promote efficiency. Expedited energy project approvals would be consistent with the 

Executive and congressional guidance that already exists. 

What is the impact of the Endangered Species Act and other environmental protection programs on the oil and gas industry? In most cases, the impacts are reasonable and warranted. However, the impact of unnecessarily prolonged permitting periods and restrictions can be detrimental to the promotion of energy production. 

We ask that the regulatory agencies be guided to develop creative opportunities 

to continue protecting the environment while promoting energy independence. 

Thank you for the opportunity to testify today. 

Senator INHOFE. Thank you. And I do have a number of questions so what I’m going to do is ask questions and try to get brief 

answers. But Dr. Tuggle made a statement that I think is accurate 

in this region. I suspect it may not be accurate in other regions in 

terms of a project has not been stopped as a result of this—am I 

accurately quoting you Dr. Tuggle—has not been stopped as a result of these section 7 discussions. 

Do you folks agree with that? Any of the four of you disagree 

with it? 

I think the problem—and see if I’ve got this message right—may 

well be that while delays make it much less profitable, that perhaps some of the projects, while they were completed did not—were 

not profitable projects; is that accurate, or is that inaccurate? 

Mr. SULLIVAN. Accurate. I think that’s correct. 

Senator INHOFE. Let’s start with you, Mr. Buchanan. You made 

some comments. Would you like to elaborate any on the voluntary 

management plan for the Arkansas River Shiner? 

Mr. BUCHANAN. Certainly I would. I appreciate the opportunity 

because I would be very remiss if I did not take the opportunity 

to address that, and tell you, sir, that that’s an opportunity that 

has existed amongst interested parties. It’s allowed groups to come 

together and identify local problems and then certainly look at local 

ways to solve them to come up with a doable situation that does 

what needs to be done. 

With that said, the OFB legal foundation has worked cooperatively with the Tulsa Fish and Wildlife very progressively I would 

say, and I want you to know that we’re very happy with that working relationship and are proud to say that we are partners with 

Tulsa in that effort. 

The voluntary management plan is more complicated that is 

being undertaken for the Canadian River municipal water simply 

because of the amount of miles that are being included in the river. 

So it will be a little more difficult and there will be more conversation involved, but it is ongoing, it is being progressive. It is coming 

up with the desired results. And the Canadian River Municipal 

Water Authority will hold a progress report and status meeting on 

November 1, and the Foundation will be on the program to further 

explain this. 

Senator INHOFE. Thank you very much. 
32 

Mr. Sullivan, at a recent Senate Energy Committee, two of the 

Deutsche Bank energy experts stated that—and I’m going to quote 

this—‘‘Anyone who blames record high U.S. gas prices on gouging 

at the pump, simply reveals their total ignorance of global supply 

and demand fundamentalists.’’ 

Mr. Sullivan, how can a politician be in favor of increasing our 

domestic production and yet be so punitive in their actions? Do you 

have any thoughts about that? With the exception of me. 

Mr. SULLIVAN. With your notable exception, and I appreciate it. 

But you cannot—you simply cannot have energy security while 

punishing the very people that can get you out of that security box. 

I don’t know why it is in this country that we can’t return to the 

National resolve that we had in World War II where we turned to 

industry to solve these problems. We turned to science to get us to 

the moon. Why can’t we turn to the energy industry to get us off 

of this dependence on oil? We rather choose to bash and to punitively address the industry, the very people that can solve the problem. So you can’t have it both ways. 

Senator INHOFE. Well, I understand that. I live with that on a 

daily basis. It is difficult, but I would like to have you specifically 

address the part—the reference that was made on gouging, because—and how that relates to the global supply and demand fundamentalists that he refers to. 

Mr. SULLIVAN. First of all, I would reiterate that we, as independents, we live or die at the wellhead with that price, and that 

price is set on a global—for oil I’m talking about and natural gas. 

Senator INHOFE. I think that’s a good point. 

Mr. SULLIVAN. As an independent, we don’t even have a chance 

to gouge. But having said that, I am convinced that there is enough 

of a pure market for oil worldwide and enough in the pure market 

for gas, at least continentally, that it would be very difficult to 

gouge. 

Senator INHOFE. Well thank you. That’s good. 

Ms. Bower-Moore, according to a 2004 Department of Energy report—which I am going, without objection, to make that part of the 

record—on natural gas, critical habitat designations and section 7 

consultations were estimated to have caused delays to a natural 

gas projection for 6 months to 2 years with an estimated cost over 

a 30-year period to the economy of 261 to $979 million. 

The question would be, what has been your experience with 

delays of your company’s projects due to the ESA? 

Ms. BOWER-MOORE. Unfortunately, Mr. Chairman, special interest groups are using the Endangered Species Act for political reasons most often and not biological reasons. 

So while ESA listings of a species are significant, it’s the entire 

listing and de-listing process that has a significant impact on our 

ability to do business on public lands. 

Once a petition is filed, it is internally elevated by the land managers such as the Bureau of Land Management or the Forest Service that increase our mitigation costs, our protection costs and 

delays in the process. So once the petition is filed, the burden of 

proof changes for us as in innocent until proven, to guilty until 

proven innocent. 
33 

Senator INHOFE. And of course those costs are passed on. That’s 

the hardest thing for people to understand that nothing happens 

in a vacuum. 

And I’d ask you further, the Clinton administration issued 50 

percent more oil and gas leases. You know, you hear so much about 

this Administration and some of these special interest groups will 

have us believe that the Bush administration has issued the oil 

and gas leases at an unprecedented pace, and yet it’s my understanding that the Clinton administration issued 50 percent more 

oil and gas leases and less than one-tenth of these were challenged. 

I think it was Secretary Norton testified in 2005. Do you have 

any thoughts about that? 

Ms. BOWER-MOORE. Well, unfortunately, once again we see that 

environmental groups are using the Endangered Species Act to 

benefit themselves, and it does have an impact on our ability to do 

business on public lands. We think there are some things in the 

law that we could change that would help that. 

In addition, however, we would like to see Congress encourage 

incentives to the private sector for habitat enhancement projects 

and conservation measures established on Federal lands, not just 

private lands. 

And what we mean is, if a company such as Devon were willing 

to implement voluntarily habitat enhancement measures on areas 

that were not developing, we feel that we should be able to get 

some assurances from the Federal land management agencies that 

we can get something back in return for our efforts for that. 

Senator INHOFE. Well, let me suggest you put that down. This is 

something—a proposal that I think could be considered, we could 

be of some help to you in this. So why don’t you do that for the 

record for this meeting. 

Mr. Haught, in your testimony you discussed how delays in the 

permitting process can actually pose a detriment to the wildlife environment by pushing construction into less desirable seasons of 

the year. 

Can you give us some examples of how this can actually hurt, as 

opposed to help the environment? 

Mr. HAUGHT. Typically construction periods that are beneficial 

from a logistic standpoint for construction fall during the same 

times of year that have the fewest environmental impacts. They 

tend to be in the late spring, summer and early fall times. These 

times avoid, from an endangered species standpoint, most of the 

breeding season, nesting season for raptors and critical large game 

habitat times. 

By trying to consider both the environmental impacts of construction timing and the construction standpoint, we can back into 

a time to allow reasonable permitting periods to be able to accomplish this. When those permitting periods are extended, it will push 

those projects into the times of the year that—and the winter may 

encroach on critical habitat range for large game, and in the 

springtime will get into those breeding and nesting periods where 

you have more detrimental impacts that you would have had the 

project been allowed to occur on time. 
34 

Senator INHOFE. In currently obtaining a 404—a section 404 permit under the Clean Water Act, often triggers a section 7 consultation under the ESA. 

Now if the Federal jurisdiction under the Clean Water Act were 

expanded, and you know what we’re talking about here, to include 

isolated non-navigable waters, could that result in additional ESA 

consultations for your projects? 

Mr. HAUGHT. Very timely question, Senator, and the answer to 

that is, yes, it would result in additional consultations required. 

Many times the Clean Water Act is the only trigger of Federal involvement for small distribution projects, 

In these instances we’re talking about usually extensions of distribution systems, a very small diameter pipe that happened very 

rapidly, and this Federal trigger then pulls in—from the Water 

Act—pulls in the endangered species’ obligations. 

Senator INHOFE. That’s right. 

How about you, Mr. Buchanan, in the Ag world? 

Mr. BUCHANAN. I would add that it’s an extremely timely topic. 

In fact, sir, I came up yesterday to Tulsa to meet with the Corp 

on this exact issue. We have a problem in the Lugert-Altus irrigation district with trying to conserve and be more efficient with our 

use of waters. 

And one of our proposed activities has triggered the potential of 

what we were just talking about. And it’s an ephemeral stream at 

best. We feel that it is not navigable at all. It does not fall under 

the jurisdictions. And it creates a major problem whenever we’re 

trying to achieve those efficiencies and conservation that the rest 

of the world wants us to do. 

Senator INHOFE. Give us an example of, under this ruling that 

we’re talking about here, what could be considered navigable? 

Mr. BUCHANAN. Well, you’re asking for my definition, I assume, 

and that’s if I could put a boat on it and float it, that’s navigable 

to me. 

Senator INHOFE. OK. 

Mr. BUCHANAN. And when we’re in Western Oklahoma, you’ve 

got to have a very shallow-drafting boat to make that happen. 

Senator INHOFE. Yes, I understand that. 

Mr. Sullivan, or Ms. Bower-Moore, do you have any comments to 

make about that? 

Mr. SULLIVAN. Yes. When you start including culverts, ditches, 

arroyos in navigable waters and bring in all the regulations that 

go with that, trigger the ESA, you’re taking a break and putting 

it right on the oil and gas industry and saying slow down. 

Senator INHOFE. Do you agree? 

Ms. BOWER-MOORE. I think it’s been well said, Mr. Chairman. 

Senator INHOFE. Ms. Bower-Moore, according to the American 

Gas Association, ‘‘America is not running out of natural gas and is 

not running out of places to look for natural gas. America is running out of places where we are allowed to look for gas.’’ And that’s 

a quote. 

Could you provide some examples from your experiences as to 

the truth of this statement? 

Ms. BOWER-MOORE. Mr. Chairman, one of my favorite sayings, as 

I speak in Wyoming, is minerals are where they are, and the rea-
35 

son we produce them at the levels and rates we produce them, is 

because the consumers’ demand continues to increase. 

And so not only is the Endangered Species Act delaying or impeding our ability to access those resources, also the need for process as a whole is having that impact. 

One of the other things that we’re seeing, Mr. Chairman, is that 

staffing for Federal land management agencies is becoming increasingly problematic. It is the same people within those agencies 

that are looking at all of the different projects on a larger level 

down to the APD level. And with the lack of manpower, the consistent turnover in the field office, and multiple analyses, they are 

all having a significant impact in our ability to meet the energy 

needs of this Nation in a timely manner. 

Senator INHOFE. Sometime it might be worth quantifying that as 

to how that’s going to affect the ultimate cost. 

Mr. Sullivan, it’s my understanding that the Fish and Wildlife 

Service sometimes creates the Best Management Practices for certain exploration activities during the course of a section 7 consultation. 

Does this pose problems for the independent operators? 

Mr. SULLIVAN. It certainly does. As I stated in my testimony, 

there’s really no evidence the oil and gas activities have impacted 

the burying beetle at all. However, the Best Management Practices 

were developed for our business, and—including the baiting I referred to. And I just feel that we are environmental stewards who 

can figure out—when a serious problem is presented to us, we can 

figure out a way to protect the environment and still get up the reserves that this country needs. 

Senator INHOFE. Mr. Haught, you’ve been concerned with this 

private property rights. This happens to be one of my favorite subjects. In fact, way back—oh, gosh, 40 years ago or so it was, when 

I was—the first thing I did—first trip I took to Washington after 

being elected to the State 

Legislature was to—in fact, I was—being in this courtroom reminds me, I was with Ralph Thompson, at that time he was a first 

term, and David Boren, the three of us went to Washington to protest Lady Bird’s Highway Beautification Act of 1965. And that was 

all about property rights. And we were protesting it in front of the 

committee called the Environment and Public Works Committee, 

the same committee I ended up chairing. It’s kind of poetic justice. 

You’re the second person today to voice concerns about private 

landowners and property rights. And they’re very important to me. 

How can we minimize the effect of the environmental regulations 

on private landowners and at the same time speed energy resource 

development? 

Mr. HAUGHT. It appears that most of the issues we have with 

landowners’ concern with the ESA itself, comes in those areas of 

high energy development. 

The landowners tend not to object as much to the pipelines and 

activity that is going on as they do to the multiple attempts with 

the Government agencies to require these companies to conduct 

surveys on their private property. 

We think that this is an opportunity, one of the opportunities to 

follow the recommendations we made and look at the projects that 
36 

are being presented on it on an individual basis and try to make 

those requirements proportionate to the potential impact. 

The pipeline issues, pipeline right-of-ways tend to be very narrow, and therefore, the surveys and the requirements there should 

be narrowed also. 

Senator INHOFE. Mr. Sullivan, what role do you see that the 

independent oil and gas operators play in securing American’s energy future? 

Mr. SULLIVAN. I see it as an essential role, Senator. If we are 

going to, in the long term, get onto renewables or some alternative 

fuels, that’s fine and I’m in favor of it, and am actually spending 

some of my time working on those things. 

But in the meantime, the short intermediate term, we are 

hooked on oil and natural gas. And it’s the independent producer, 

and only the independent producer, who can help mitigate that 

problem. So we need to allow the independent producer the freedom of regulation and stifling rules and laws so we can do our 

thing and help this country while we’re transitioning to long 

term— 

Senator INHOFE. A lot of people don’t realize the role of that in 

marginal wells for example, and the very small—I heard a statistic 

not too long ago that apparently was true, that if we had everything flowing today that’s been plugged up from the margin of 

wells, it would exceed what we’re having to import from Saudi Arabia. Does that sound reasonable? 

Mr. SULLIVAN. I can’t verify that number, but I can say that 

right here in the State of Oklahoma, for example, there are more 

reserves of oil and gas in the ground than we have produced since 

inception 100 years ago. 

Senator INHOFE. That’s a good one to use. 

Mr. SULLIVAN. What’s required to get them out is the economic 

incentive to do so. And everybody cusses the high prices, but it is 

causing us independents to go take those risks. And we’re getting 

oil out of shale and out of places you wouldn’t imagine because of 

these high prices. So we know where the reserves are. It’s a matter 

of economics and the lack of discouragement from the Government 

to get— 

Senator INHOFE. You mentioned shale. That’s a huge potential 

that we have out there. 

Mr. SULLIVAN. It is; it’s huge. And, Senator, my little company, 

we, today, are spending virtually all of our resources going after reserves in your old stomping ground in Osage County, an old producing area that everybody knew was there but was heretofore uneconomic to get out. And now we’ve developed through technology, 

and through, yes, higher prices, we are incentivized to go get them. 

Senator INHOFE. Well, that’s ironic, because many, many years 

ago, and the story I told you about, a tool dresser on a cable tool 

rig, we were actually going after the stuff that had been left by the 

big guys. Now you’re doing this again in the same area. 

Mr. SULLIVAN. Exactly. 

Senator INHOFE. Mr. Buchanan, I wrote an article for the Energy 

Law Journal in 2005. And by the way, I’ll insert that, without objection, into the record also. I refer to the fact that some environ-
37 

mental regulations derive natural gas demand while others simultaneously restrict natural gas supply. 

What effect does this have on farmers? You know, a lot of people 

don’t know that relationship with the Ag community. 

Mr. BUCHANAN. Well, certainly. It’s a very short answer, which 

is that regulations slow down production. And when demand is 

high, prices increase. That’s how our markets work. High oil and 

gas prices negatively impact production agriculture since natural 

gas is the most common component in manufacturing nitrogen fertilizer. 

Senator INHOFE. Did you agree with my statistic in my opening 

statement, that it’s 90 percent? 

Mr. BUCHANAN. Yes, sir. And it’s becoming a burden that we cannot continue to carry, the cost of that nitrogen fertilizer. 

Senator INHOFE. Mr. Haught, one of the pipeline projects that 

ONEOK is currently working on—will go from 

Wyoming to Oklahoma, one of the pipelines. That pipeline will 

cross the boundaries of three Environmental Protection Agency regions; two Fish and Wildlife Service regions. And it’s my understanding that the interpretations of ESA and other environmental 

laws can vary widely between the EPA and the Fish and Wildlife; 

and then from region to region, from State to State. 

What has been your experience working within this framework 

of regions in these States, and how has inconsistency between 

these States and agency regulations affected you? 

Mr. HAUGHT. Senator, those variations in implementing the 

same requirements, the same acts are such that from a practical 

standpoint we have to treat each of those different, States different—different regions and even different districts within the 

same agency. Each of their processes are different enough that we 

tend to treat those as a different permitting process. 

Sometimes the variations may be as minor as a different form to 

accomplish the same thing, to as much as programmatic differences, wherein one agency, if there’s a requirement, will put the 

onus on the project applicant to do the consultations and you can 

have a little more control of your timing destiny that way, whereas 

other agencies implement the same regulation may require that all 

contacts, all consultations, be agency to agency only. 

In this case the applicant doesn’t have an opportunity to provide 

resources to that process and you’re dependent upon staffing at the 

agencies who are—tend to be burdened with heavy workloads as it 

is. And many times it negatively impacts those projects. 

Senator INHOFE. Well, let me thank all of you. I’ve completed my 

checklist, but what I’d like to do at this time is kind of start over 

here maybe again with you, Mr. Buchanan, on anything you don’t 

feel you were able to cover in your opening statement or any 

thoughts that have not been discussed that relate to this—today’s 

discussion. Would you like to make any further comments, take 5 

minutes or so? 

Mr. BUCHANAN. Certainly it won’t be that long, sir. What I would 

like to add though to try to tie up—from an Ag viewpoint—it’s been 

referred to, I believe Mr. Sullivan talked about the dependence, our 

foreign dependence on energy for this Nation, how you developed 

that taste and that thirst, and that’s where we are satisfying that. 
38 

From Ag viewpoint, what we see happening because of regulatory 

activities that are coming down to us, is that this Nation is on the 

road to becoming foreign dependent for their production of food and 

fiber. 

And when we consider safety issues, not only of National safety, 

but just on your dinner plate, safety of what you’re eating, that is 

something we do not, cannot, and should not pursue. We have to 

maintain a healthy Ag economy in this Nation. 

Senator INHOFE. I think it’s very important to have this as a part 

of this record. 

Mr. BUCHANAN. I would agree. Thank you, sir. 

Senator INHOFE. Mr. Sullivan, it’s you that brought up the global 

warming, not me. But I would like to make an observation that in 

this recess, we’ve been in recess for 3 weeks now, and there have 

been more changes in scientific evidence having to do with anthropogenic gases affecting climate change than there has been in probably in the 6 months before that. And so it’s kind of interesting 

that that’s going on right now. 

It’s also interesting that while we were all concerned about the 

Wharton Econometrics Survey, it talked about the expense of what 

it would cost to have some of these cap-and-trade policies, in effect 

what it would cost a family of four. 

The MIT came out with another study saying that they are far 

too conservative, and that the current bills that are being considered would cost each family of four some $4,500 a year in what I 

would refer to as direct taxes. 

You know, that would be actually 12 times larger than the largest tax increase in recent history, and that was the 1993 tax increase for America. 

I don’t have a question that goes with that, other than do you 

agree, and is there anything else you’d like to elaborate on? 

Mr. SULLIVAN. I agree. And just in my closing remarks, Senator, 

I think—I remember in 1974, President Ford with some ballyhoo, 

came out with what he called ‘‘Project Independence.’’ And he was 

very concerned, as were others, about our country’s dependence on 

foreign oil. We were importing 26 percent of our oil. We wore little 

lapel pins that said ‘‘Project Independence.’’ We’re now importing 

60 percent of our oil, and no one seems to care. 

So, Senator, to get up to 50,000 feet in one of your airplanes and 

look down on it, I think the big picture is simply as follows: We 

must, as a country, have the National resolve to focus on this very 

serious issue and solve it. We are in danger of—we are putting our 

destiny in the hands of other people, and they don’t like us. We’ve 

got to change that. 

So the independents in this country, and especially in this State, 

are one of the key elements, as I said, in at least the short and intermediate term helping us solve that problem. 

We’ve got to get over onto renewals. And I’m a big fan of that. 

But this whole business about regulation and endangered species, it must take a different priority to that very important issue 

of getting this country off the dependence of foreign oil. 

Senator INHOFE. Thank you very much. Excellent statement. 

Ms. Bower-Moore. 
39 

Ms. BOWER-MOORE. Mr. Chairman, the only one thing that I did 

want to quickly address that I didn’t address in my oral testimony 

was regarding private landowners. And in the State of Wyoming 

we have a significant amount of split estate, Federal and mineral 

and private surface. 

In order to access that surface, it’s a requirement that we do surveys for any proposed, threatened or endangered species. And it is 

a real thorn of contention with our landowners. 

If there is no way to change the law to prevent those surveys 

from being conducted regarding oil and gas projects, then we need 

to find a way that information would be—would not be available 

to be FOIA’d in the public arena because landowners have a fear 

that information will be used by special interest groups against 

them on their private property. 

Having said that, Mr. Chairman, thank you for letting us attend. 

And Devon is committed to protecting the environment and developing the resources this country desperately needs. 

Senator INHOFE. I know that’s true. 

Mr. Haught. 

Mr. HAUGHT. Thank you, Senator. I would just like to reiterate 

the concept that we wanted to express here, in that we’re not—and 

I don’t think anyone on this panel is probably totally against regulation—but I think we are for fair and balanced regulation that’s 

proportionate to the potential impact so that we can have a risk 

benefit outcome that’s—will help promote, not only our economy, 

but the energy industry also. 

We believe that mechanisms do exist or the authorizations do 

exist for agencies to be more creative and flexible in their permitting issues. 

We think that some direction to those agencies to consider those 

alternatives as they are presented would be something that we’d 

like to see. 

Senator INHOFE. That’s good. 

Dr. Tuggle, I appreciate very much your remaining for the rest 

of it. If there’s any last comment you’d like to make or any response to anything that’s been said, you feel free to come forward. 

And I’m sure Mr. Sullivan will give you his chair for a minute or 

so. 

Dr. TUGGLE. Senator, I certainly appreciate the comments that 

have been made, and I’ve taken a couple of notes here. And I think 

that one of the things that I would like to emphasize is the fact 

that, as you are aware, you’ve been briefed by our director on the 

proposed regulatory changes from a policy standpoint on how we 

administer the Endangered Species Act internally. And we are 

working on some of these common sense approaches. 

One of the things that I think is really incredible is the fact that, 

as we have talked about the development of Best Management 

Practices, we have reached out to industry. 

The Service does not perceive the industry as the bad players. 

We think that conservation is a part of the American fabric, and 

we certainly appreciate the fact that industry has stepped up and 

played a significant role in terms of protecting and conserving species. 
40 

I think the thing that we’re talking about here is, is a minimization of some of the inconsistencies as it relates to how we administer the Act. 

We think that some of the recommendations that we’re going to 

be making with our reg changes may address some of these issues. 

And it boils down to what someone said early about common sense. 

But the fundamental premise is, is that the Service continues to 

reach out to industry or anybody that’s affected by how we administer the Endangered Species Act with very proactive programs 

such as programmatic biological opinions, such as Best Management Practices and such as habitat conservation plans so that we 

can minimize these impacts from a regulatory standpoint and 

maximize the impacts from a conservation standpoint. 

Senator INHOFE. I appreciate that. And I hope that you will take 

some of this evidence back with you and share it with the Director 

and perhaps we can address some of these problems. 

I look forward to visiting with all of you in the future about how 

we’re doing that. And I appreciate so much all five of you being 

here to testify today. And we are adjourned. 

[Whereupon, the committee was adjourned.] 

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Æ