UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGIONS 1595 Wynkoop Street DENVER, CO 80202-1129 Phone 800-227-8917 http://www.epa.gov/region08

Ref: 8P-AR 

# 'JUL 12 20:2

Jeffrey Towner U.S. Fish and Wildlife Service North Dakota Field Office 3425 Miriam Avenue Bismarck, North Dakota 58501-7926

Re: Section 7 ESA Informal Consultation Federal Implementation Plan under Clean Air Act for Oil and Gas Production Facilities on the Fort Berthold Indian Reservation, North Dakota

Dear Mr. Towner:

The U.S. Environmental Protect Agency (EPA), Region 8 is sending this letter to initiate informal consultation with the U.S. Fish and Wildlife Service (FWS) pursuant to section 7(a)(2) of the Endangered Species Act (ESA), 16 U.S.C. § 1536(a)(2), and implementing regulations, 50 C.F.R. Part 402. The information below includes a description of EPA's proposed action; our reservation-wide approach for ESA assessment of potential impacts to endangered and threatened species and/or designated critical habitat; and our request for FWS concurrence on our "may affect, not likely to adversely affect" conclusions.

The EPA proposes to promulgate a Reservation-specific federal implementation plan (FIP) under the Clean Air Act (CAA) to establish enforceable control requirements for reducing volatile organic compound (VOC) emissions from oil and gas production activities within the exterior boundaries of the Fort Berthold Indian Reservation (FBIR) in North Dakota. For ESA purposes, the action area is the entire FBIR. The proposed rule is not a permitting program and therefore does not impose (or exempt the facilities from) any CAA permitting requirements, including the Prevention of Significant Deterioration (PSD) permitting requirements at 40 CFR §52.21 and Federal Minor New Source Review for Indian country (FMNSR) permitting requirements at 40 CFR §49 .151. The purpose of this rule is to provide Federal enforceability for the use ofVOC emission controls that are already being used as an industry standard.

EPA is issuing this action as an interim final rule. As an interim final rule, this action is time-limited. It will be effective from the date of signature until the date that EPA promulgates a final rule based on a proposed rule that will be issued concurrently with the interim final rule.

The EPA recognizes that listed species and designated critical habitat are present within the externalboundaries of FBrR. Therefore, the EPA fully expects that, regardless of the approach to ESA compliance taken in this FIP, if, in the future, a Federal CAA permit application is received by the EP A, procedures to comply with section 7 of the ESA would be initiated at that time. At such time a determination, with appropriate consultation, would be made on the basis of a full record describing the project, site, method of construction, air emission control equipment and other relevant information.

Threatened and Endangered Species

The EPA accessed FWS websites for information on threatened and endangered species and designated critical habitat for those species. FWS maintains a website titled Environmental Conservation Online System (ECOS, http://ecos.fws.gov/ecos/indexPublic.do) that provides access to databases for:

1. Threatened and endangered species that may be present within the proposed project area and 2. Designated critical habitat for threatened and endangered species.

The EPA accessed the FWS Information, Planning, and Conservation System (IPaC) database (http://ecos.fws.gov/ipac) to identify species listed as threatened and endangered that have been documented as being present in Dunn, McLean, McKenzie, Mercer, Mountrail and Ward Counties within the external boundaries of FBIR. The EPA received an official species list from the FWS North Dakota Ecological Services Field Office on June 7,2012 for each affected county, list attached.

Additional information for FWS designated critical habitat for the piping plover on the Missouri River system including Lake Sakakawea was available on-line (http://criticalhabitat.fws.gov/crithab/). A map ofthe designated critical habitat area for the piping plover is attached.

The following threatened and endangered species may be found in the FBIR:**~** Counties Where

I I·

Common Name Federal

. Species Could

. (Scientific Name )

_____**---'-_S_ta_t_us~l~** LO_c_cu_r_2

______**.L_H_a_b_it~at!Critical** Habitat

Mammals Open grasslands, steppe, and shrub steppe habitat, same habitat used by Black-footed Ferret Dunn, Mercer, prairie dogs, about 40-60 hectares of (Mustela nigripes) XN McKenzie prairie dog**co!on~** 2er ferret. i

i Gray Wolf Dunn, Mercer, Habitat generalists living thorough (Canis lupus) E McLean, • out the northern hemisphere

I Federal listings: E listed as endangered; PT proposed for listing as threatened; T listed as threatened; XN experimental population, nonessential.

2 Counties within the external boundaries of Fort Berthold Indian Reservation and within species range where oil and gas production facilities could occur. 

### 2Counties Where 

# I Common Name Federal Species Could Status I (Scientific Name) Occur2 

# I Habitat/Critical Habitat McKenzie, Mountrail, Ward 

# J I i 

# J !

Birds Dunn, Mercer, Bare or sparsely vegetated sand or McLean, dried mudflats along coasts or rivers, Least Tern McKenzie, sandy or shell islands and gravel and (Sterna antillarum) E Mountrail sand pits I Washed-out hillside beaches on Dunn, Mercer, smaller semipermanent alkali McLean, wetlands. Piping Plover McKenzie, Critical habitat on Missouri River (Charadrius melodus) Mountrail, Ward T along Lake Sakakawea Dunn, Mercer, McLean, Whooping Crane

. McKenzie, Poorly drained, shallow-water

I (Grus Americana) E \ Mountrail, Ward wetlands I
Fish Dunn, Mercer, McLean, Pallid Sturgeon McKenzie,

. Main channel areas with islands or : (Scaphirhynchus alb us) 

# I E Mountrail 

# J sand bars in the uj)per Missouri River 

### I

Gray Wolf Listing Status: Endangered Effects Determination: No Effect

Gray wolves were declared endangered in 1978 (43 Federal Register 9612; March 9, 1978). They occupy a wide range of habitats including temperate forests, mountains, tundra, taiga and grasslands. Ungulates (wild and domestic) are the typical prey of wolves, but wolves also readily scavenge. Beaver are among the smallest important prey but wolves can utilize smaller mammals, birds, and fish. Gray wolves have been documented in North Dakota at the rate of about one to two verified reports per year. Individuals are mostly dispersing males from Canada, Montana, or Minnesota. Breeding wolves

are not known to occur in or near the FBIR and there is no recent evidence of wolf pairs or packs in the region. Because of the highly mobile nature of this species, it is possible that wolves would periodically travel through the FBIR. Implementation of the FIP would have no effect on the gray wolf given the low likelihood for gray wolves to occur within the FBIR.

3Black-footed Ferret Listing Status: Endangered Effects Determination: No Effect

Black-footed ferrets are members of the weasel family found in or near prairie dog towns in the Great Plains. Once common, they were declared endangered in 1970 (35 Federal Register 8495; June 2, 1970). The decline of the black-footed ferret corresponds with the eradication of the prairie dog. The revised "Black-Footed, Ferret Survey Guidelines for Compliance with the Endangered Species Act" (April 1989) is currently used by FWS, Ecological Service offices to evaluate surveys conducted for the presence or absence of black-footed ferrets on areas with proposed Federal actions. These guidelines establish minimum areas of prairie dog habitat (80 acres of black-tailed prairie dog towns and 200 acres of white-tailed prairie dog towns) that the Service believes are needed to support a black-footed ferret. Preactivity ferret surveys will not be required to satisfy the regulations (50 CFR 402) governing interagency cooperation under the Endangered Species Act (Act) ifthe projects are proposed in areas with less than 80 acres of black-tailed prairie dogs and less than 200 acres of whitetailed prairie dogs. Agricultural land use and oil and gas development in Fort Berthold Indian Reservation has diminished prairie dog colonies to below the minimum size required to support blackfooted ferret colonies. Therefore, implementation of the FIP would have no effect on the black-footed ferret because the area no longer supports their colonies.

Least Tern Listing Status: Endangered Effects Determination: May Affect, is Not Likely to Adversely Affect

The interior least tern is migratory and its breeding range extends from Texas to Montana and from
eastern Colorado and New Mexico to northern Indiana. They were declared endangered in 1985 (50 Federal Register 21792; May 28, 1985). Of the approximately 2,500 pairs of interior least terns, about 100 pairs are known to occur in North Dakota. Interior least terns nest in riparian areas with sparsely vegetated sand and gravel bars within a wide, unobstructed river channel or salt flats along lake shorelines, at higher elevations away from the water's edge. The primary food is small fishes, but it also eats shrimp and occasionally other invertebrates. The least tern is known to use the Missouri River corridor for nesting and as a migratory corridor.

Implementation of the FIP may affect, but is not likely to adversely affect the least tern because the FIP does not impose or exempt the facilities from any CAA permitting requirements. The FIP provides Federal enforceability for the use ofVOC emission controls that are already being used as an industry standard.

Pallid Sturgeon Listing Status: Endangered Effects Determination: May Affect, is Not Likely to Adversely Affect

The pallid sturgeon is a large fish known to occur only in the Missouri River, the Mississippi River downstream from the Missouri River, and the lower Yellowstone River. They were declared endangered in 1990 (55 Federal Register 36641; September 6, 1990). In April of2001, 11 pallid

4sturgeons were caught in the upper Missouri River and lower Yellowstone River but not in Lake Sakakawea. No reproduction has been documented in North Dakota in more than a decade. Implementation of the FIP may affect but is not likely to adversely affect the pallid sturgeon because the pallid sturgeon has not been caught in the lake in more than a decade.

Piping Plover Listing Status: Endangered Effects Determination: May Affect, is Not Likely to Adversely Affect

The piping plover was declared threatened in 1985 (50 Federal Register 50733; December 11, 1985). It is a small shorebird that inhabits barren sand and gravel shores of rivers and lakes. In North Dakota, birds spend 42% of their time at the waterline and 45% foraging in upland gravel areas. The main foods taken are freshwater invertebrates washed up on shore, terrestrial, and benthic invertebrates. Habitat loss and poor breeding success are major causes of the population decline. More than threefourths of piping plovers in North Dakota nest on prairie alkali lakes, while the remainder use the Missouri River. The FWS designated critical habitat for the piping plover on the Missouri River system includes Lake Sakakawea. A map of the proposed facility with the designated critical habitat

area is included with this memorandum.

Implementation of the FIP may affect, but is not likely to adversely affect the piping plover because the FIP does not impose or exempt the facilities from any CAA permitting requirements. The FIP provides Federal enforceability for the use ofVOC emission controls that are already being used as an industry standard.

Whooping Crane Listing Status: Endangered Effects Determination: May Affect, is Not Likely to Adversely Affect

Whooping cranes were declared endangered in 1970 (35 Federal Register 8495; June 2, 1970). Whooping cranes do not breed in North Dakota. However, they are known to migrate through North Dakota during the spring and fall migration periods. Current and historic records show North Dakota to be an important corridor for migration of the whooping crane. They occupy tall and mixed-grass prairie marshes of north central United States and southern Canada. They are omnivorous, probing and gleaning foods from soil, water, and vegetation. Documented foods include; frogs, fish, plant tubers, crayfish, insects, acorns, snails, mice, snakes, and grains such as barley, wheat and com.
Implementation of the FIP may affect, but is not likely to adversely affect the whooping crane because the FIP does not impose or exempt the facilities from any CAA permitting requirements. The FIP provides Federal enforceability for the use ofVOC emission controls that are already being used as an industry standard.

The EPA has concluded that the proposed Clean Air Act FIP "may affect, but is not likely 10 adversely 

### afftcl" certain listed species or critical habitat. To comply with our obligations under section 7(a)(2) of the ESA, 16 U.S.C. § 1536(a)(2), and its implementing regulations at 50 CFR, part 402, we are requesting your written concurrence with our determination that implementation of the FIP is not



### 5likely to adversely affect any listed threatened or endangered species or the designated critical habitat of such species. To facilitate the finalization of our action, we request FWS concurrence within 30 days from receipt of this letter. If you have any concerns regarding our ESA determination and approach please contact me at (303) 312-6416 or your staff can contact Victoria Parker-Christensen, Air Program, at (303) 312-6441 or parker-christensen.victoria@epa.gov. Thank you for your assistance.

# W')~

Carl Daly

# ~6 Director, Air Program

Enclosure: Fort Berthold Indian Reservation with piping plover critical habitat



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