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 ofEPA'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 ofthis 

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 external 
boundaries 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 

EPA, 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 

Common Name Federal . Species Could I·

. (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. 

2 
Counties Where I Common Name Federal Species Could 

(Scientific Name) StatusI Occur2 IHabitat/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) T Mountrail, Ward 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 Jsand 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 ofthe FIP would have no effect on the gray wolf 

given the low likelihood for gray wolves to occur within the FBIR. 

3 

Black-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 ofthe 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 

4 

sturgeons 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 ofthe 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 ofthe 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 

5 

likely 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 

6 *

Printed on Recycled Paper 
Dunn

McLean

Mountrail

Mercer

Ward

McKenzie

Fort Berthold Indian Reservation;

Counties and Critical Habitat for

Piping Plover within Reservation

£

Disclaimer: EPA makes no claim regarding the accuracy or

precision of these data. Questions concerning the data should

be referred to the source agency. This map does not

necessarily represent EPA's position on any Indian Country

boundaries or the jurisdictional status of any specific location.

Date: June 4, 2012

Map Projection: UTM, Meters, Zone 13N,NAD83.

Data Sources:

Reservations - U.S. Census Bureau (2009);

Counties - U.S. Census Bureau (2009);

Critical Habitat - U.S. Fish & Wildlife Service (2010);

Base - Microsoft Bing web service (2012).

Fort Berthold Indian Reservation

County Boundary

US FWS Critical Habitat - Piping Plover

L a k e S a k a k a w e a

Area Enlarged

0 1.75 3.5 7 10.5 Miles

0 4 8 16 Kilometers