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USFWS comments on Cheyenne Bottoms drilling permit
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United States Department of the Interior
Kansas Ecological Services Field Office
2609 Anderson A venue
Manhattan, Kansas 66502

Luke Cory, Project Manager
U.S. Army Corps of Engineers
Kanopolis Regulatory Field Office
107 Riverside Drive
Marquette, KS 67464

RE: CENWK-CO-RW (2013-00744)
Dear Mr. Cory:

July 15,2013
FWS Tracking # 2013-CPA-0369
This letter is in response to your request for comments on the proposal by H&C Oil Operating,
Inc. to construct an oil well drilling site. The applicant would use a blade to excavate an area
approximately 250 feet by 130 feet to remove all vegetation and level the site for oil well
drilling. A temporary reserve pit would be excavated approximately 80 feet by 20 feet by 2 to 3
feet deep to contain drilling fluids and water. The fluids and water would be removed and
disposed of offsite upon completion of the drilling. Upon completion of the work, the site would
be restored and revegetated with the exception of a 30 foot by 30 foot fenced off area where the
oil well would be sited. An access road approximately 870 feet long by 15 to 20 feet wide would
be established to the site. According to the applicant, no rock or fill would be associated with
construction or establishment of this road and vehicles would simply drive through the wetlands
within the designated road route to reach the site. The project would temporarily impact
approximately 0;75 acre of wetlands and permanently impact approximately 0.02 acre of
wetlands. The project is located in Cheyenne Bottoms in Section 14, Township 18 south, Range
13 west, Barton County, Kansas.
According to the applicant, most of the 250 foot by 130 foot area disturbed during construction
would be restored to preconstruction contours and revegetated using native vegetation. The
applicant has proposed using in lieu fee mitigation for the 30 foot by 30 foot area where the
permanent oil well would be located.
We have reviewed the permit application pursuant to our authorities under the Fish and Wildlife
Coordination Act (16 U.S.C. 661 et seq.); section 404(b) of the Clean Water Act (33 U.S.C
1344); the Migratory Bird Treaty Act of 1918 (MBTA), as amended (16 U.S.C. 703 et seq); the
Endangered Species Act (ESA) of 1973, as amended (16 U.S.C. 1531 et seq.); and executive
orders 11990 (wetland protection) and 11988 (floodplain management).

Endangered Species Comments
The project may affect the least tern (Sterna antillarum), federally listed as endangered; piping
plover (Charadruis melodus), federally listed as threatened; and whooping crane (Grus
americana), federally listed as endangered. The Corps of Engineers has requested a formal
consultation for the whooping crane and informal consultations for the least tern and piping
plover. Therefore, information and recommendations concerning these species will be discussed
in the consultations.
Bald Eagles and Golden Eagles
Both bald eagles (Haliaeetus leucocephalus) and golden eagles (Aquila chrysaetos) may be
found in the Cheyenne Bottoms area. The bald eagle has confirmed nesting sites at Cheyenne
Bottoms as documented in the Kansas Breeding Bird Atlas. Both species of eagles are protected
by the Bald and Golden Eagle Protection Act (BGEP A) and the Migratory Bird Treaty Act
(MBTA) which protect eagles from a variety of harmful actions and impacts. Potential roost and
nest sites should be avoided and protected. If any project activity appears likely to harass or
disturb any bald eagle or golden eagle observed at or near any construction site the Service
should be notified prior to commencement of the activity, so that an assessment may be made of
the potential for adverse impacts.

Migratory Birds
The Migratory Bird Treaty Act prohibits the taking, killing, possession, and transportation,
(among other actions) of migratory birds, their eggs, parts, and nests. While the Act has no
provision for allowing unauthorized take, the USFWS realizes that some birds may be killed
during project construction even if all known reasonable and effective measures to protect birds
are used. The USFWS Office of Law Enforcement carries out its mission to protect migratory
birds through investigations and enforcement, as well as by fostering relationships with
individuals, companies, and industries that have taken effective steps to avoid take of migratory
birds, and by encouraging others to implement measures to avoid take of migratory birds. It is
not possible to absolve individuals, companies, or agencies from liability even if they implement
bird mortality avoidance or other similar protective measures. However, the Office of Law
Enforcement focuses its resources on investigating and prosecuting individuals and companies
that take migratory birds without identifying and implementing all reasonable, prudent, and
effective measures to avoid that take. Companies are encouraged to work closely with Service
biologists to identify available protective measures when developing project plans and/or avian
protection plans, and to implement those measures prior to/during construction or similar
Examples of conservation measures would include:
1) Conduct a field survey during the nesting season for migratory birds associated with the
affected habitats and structures to determine the presence of active nests prior to any
disturbance. Migratory bird nesting sites include prairies, wetlands, stream and woodland
habitats, and those that occur on bridges and other structures if swallow or phoebe nests
are present. While the provisions ofMBTA are applicable year-round, most migratory
bird nesting activity in Kansas primarily occurs during the period of January (owls, and
hawks) through August (goldfinches). Our office should be contacted immediately for
further guidance if a field survey identifies the existence of one or more active bird nests
that you believe cannot be avoided temporally or spatially by the planned activities.
2) Design, construct and mark power poles and lines to prevent bird electrocution and
• Powerlines have been documented as constituting a significant collision hazard to a
number of bird species, including waterfowl and some endangered species. Therefore the
Service encourages the use of buried cable. The applicant should provide for enhanced
visibility of the static lines on any overhead line segment within one mile of a stream or
wetland. Marking of selected lines during construction should prove both easier and less
expensive than application of remedial measures at a later date ifit becomes necessary.
• Electrical distribution lines have been shown to pose the threat of electrocution to large
birds of prey which use the poles, cross arms, and wires as perching sites, and have been
found to create collision hazards for migratory species of birds, including the federally
endangered Whooping crane. I recommend that the applicant incorporate guidelines, such
as those found in the “Suggested Practices for Avian Protection on Power Lines: The
State ofthe Art in 2006”; and the 2012 Avian Power Line Interaction Committee’s
publication, “Reducing Avian Collisions with Power Lines: The State of the Art in 2012”
which can be found at, into the design of all above ground line
segments, and into the retrofitting of any conversion lines. These guidelines should be
applied on all above-ground line segments to help ensure that the proposed facilities will
have little significant effect on resident and migrant raptors, such as hawks, eagles, owls,
and other migratory bird species. Utilization ofthese guidelines is a matter of the
applicant’s discretion, but be the applicant should be advised that failure to use them
could result in the applicant being held liable for any avian electrocutions/collisions
which occur on these lines.
3) Mark fences to prevent bird collisions and constructed to allow wildlife movement.
Large low-flying birds, such as ducks, geese, cranes, swans, grouse, hawks, and owls are
especially vulnerable to collisions with fences. Typical fence marker placement protocol
to prevent bird collisions with barbed-wire fence is to place snap markers on the top wire
between barbs at approximately 3-foot intervals. Three inches is the standard marker
width to fit between barbs. The use of reflective tape on both sides of the marker will
increase visibility. Other wildlife friendly fence construction, marking methods, and
materials can be found in the document “How to Build a Fence With Wildlife in Mind”
( ).
4 ) Avoid nightime lighting.
5) Cap all open topped pipes, tubes, etc. Recent studies have shown that open topped pipes,
tubes and the like can be a significant source of mortality to certain species of cavity
nesting birds. The birds will enter the pipe to investigate it and become trapped by the
slick sides and be unable to get out of the pipe.
6) Use closed containment systems. Pits, open-topped tanks, load line containers, drip
buckets, dehydration tanks or tubs, and well chemical spill containment devices at oil and
gas production facilities can attract and entrap migratory birds causing injury and death.
Methods that are ineffective at deterring birds and wildlife from oil pits include flagging,
reflectors, strobe lights, and zon guns. If open pits are used, oil spills into the open pits
should be cleaned up immediately. All open pits should be netted as netting appears to
be the most effective method of keeping birds from entering waste pits. The following
information details how to properly net an open pit:
• A maximum mesh size of 1 liz inches will allow for snow-loading and will exclude
most birds. Netting should be suspended a minimum of 4 to 5 feet from the surface
of the pond to prevent the net from sagging into the pond during heavy snow loads.
Three-inch steel tubing can be used for support posts and should be set a maximum of
7 feet apart. These should be buried a minimum of 7 feet in depth and set in concrete.
Three-inch steel tubing should be used as a top rail to connect the posts. Cable
should be strung across this frame at 7-foot intervals along the y-axis and the x-axis
to form a grid of 7-foot squares by the cable. The netting is then draped over this
cable grid. Netting should be wide enough to drape down the sides of the frame to
prevent ground entry by wildlife. A bottom perimeter cable strung along the bottom
of the posts at ground level should be used to attach the bottom of the net. Cables are
strung over the net at 7-foot intervals to prevent the wild from whipping the net back
and forth. Proper maintenance should be performed to repair holds in the netting and
to re-stretch sagging nets after heavy snow loads. Migratory bird deaths in oil pits
should be reported to our office. Additional information on wildlife mortality
associated with oil pits and preventative measures can be found at:; 1 a.html;
http://www .fws. gov /mountain-prairie/ contaminants/contaminants 1 c.html and
http://www .fws. gov /mountain-prairie/ contaminants/contaminants 1 d.html.

Cheyenne Bottoms (Bottoms) is unique in many ways. The Cheyenne Bottoms area is part of a
41,000-acre natural sink, the largest interior marsh in the United States. The State owned
Cheyenne Bottoms Wildlife Area (WA) consists of a 19,857-acre parcel and The Nature
ConservancyeTNC) owns an adjacent 7,300 acres. Cheyenne Bottoms is one of only 29 places
in the U.S. on the List of Ramsar Wetlands ofInternational Importance. The chief of objective
of the Ramsar List of Wetlands of International Importance is to “develop and maintain an
international network of wetlands which are important for the conservation of global biological
diversity and for sustaining human life through the maintenance of their ecosystem components,
processes and benefits/services” (
1-31-218 4000 O~. The area is considered the most important shorebird
migration stopover points in the western hemisphere
( The Bottoms area is classified as a “Sensitive
Groundwater Area” by the Kansas Corporation Commission (KCC) which constitutes a
geographical area designated by the commission as having hydrogeologic, climatic, soil, and
other characteristics that make the area’s fresh and usable groundwater vulnerable to pollution
from oil and gas activities. Cheyenne Bottoms is also included in an Intensive Groundwater Use
Control Area (IGUCA) for the Walnut Creek Valley in which KDWPT was given a Senior
appropriation for much of the water flow from the Wet Walnut Creek for diversion to the
wetland. The Bottoms is also classified as an “Outstanding National Resource Water” by the
State of Kansas. It is one of the original “Eight Natural Wonders of Kansas”. Approximately
60,000 people visit Cheyenne Bottoms each year many to birdwatch and/or hunt.
Over the past 200 years Kansas has lost almost 50 percent of its wetlands. Wetland losses
throughout the nation, and internationally, have caused population of some shorebird species,
starved for water, food and nesting sites - to shrink by 60 to 80 percent.
At least 330 species of birds have been recorded at Cheyenne Bottoms. Nearly one-half of all
North American shorebirds migrating east of the Rocky Mountains, including 90% of North
American’s population of Wilson’s phalarope, long-billed dowitcher, white-rumped sandpiper,
baird’s sandpiper, and stilt sandpiper, and up to one-quarter million waterfowl stop at Cheyenne
Bottoms to rest and feed during seasonal migrations. Federally listed least terns, piping plovers,
and whooping cranes use the Cheyenne Bottoms. The area also attracts bald eagles, recently
delisted. In addition to birds, it is home to 23 species of mammals, 19 species of reptiles and
nine species of amphibians.

Energy sector activities in all phases of the energy supply chain can potentially have negative
impacts on the ecological character of wetlands. Ramsar defines ecological character as “the
combination of the ecosystem components, processes and services that characterize the wetland
at a given point in time” (;D. Impacts are
primarily expressed through (but not limited to) the following aspects:
1) Changes in water quantity available for wetlands due to consumptive use of surface water
or groundwater or to alterations of natural flow regimes or drainage;
2) Changes in water, soil, and air quality due to chemical, thermal, radioactive and organic
pollutants resulting from energy sector activities;
3) Direct impacts on wetland habitats arising from the conversion of wetland for
construction and operation of energy generation facilities and infrastructure and
disruption in sediment flow and ecosystem connectivity of energy-related activities or
4) Direct impacts on wetland fauna, especially birds and bats, due to collision and
5) Indirect impacts of habitat fragmentation and connectivity between hydrographic basins,
their wetlands and primary associated ecological zones with a high biodiversity
6) Indirect impacts of atmospheric emissions, including water quality impacts from
emissions (e.g. particulate materials, sulfur or nitrogen compounds) and those due to
climate change effects resulting from greenhouse gas emissions in the energy sector; and
7) Effects on local climate which can reduce the potential for carbon sequestration and
Other considerations include:
1) The concern that extraction of the oil or groundwater for oil production could cause
subsidence, altering the hydrological connection between the groundwater and surface
2) Wildlife disturbance due to the noise, sight, and smell of an oil well as well as a
diminished visitor experience due to those factors.
3) Night time lighting is a disturbance for many species of wildlife.
4) Contamination from the pits which may leak and/or overflow.
5) Wildlife attraction to the pits and associated wildlife mortality from contact with the pits.

The two current applications for activities associated with oil drilling wi.1l not be the only
applications for this area. A search of the KCC “Intent to Drill” database, found that there are
152 notices for Barton County in the past 365 days
( retrieved July 14,2013). Of those, we estimate
that 63 are in the eleven townships containing the Bottoms, Blood Creek, and Deception Creek.
This does not include existing wells. The cumulative effects of oil development consisting of
multiple wells in multiple sites must be evaluated. The effects of these wells on groundwater,
groundwater and surface water contamination, habitat fragmentation, noise pollutions and the
impact on various species ofbird’s essential life processes (feeding, nesting, and rearing of
young) should be included in the evaluation.
Cheyenne Bottoms currently suffers from water quality problems and is on the Kansas 303d list
for siltation, dissolved oxygen, and eutrophication. Oil production in the watershed will likely
contribute to the continuation of these issues in the future and may prevent the effectiveness of
some solutions.
Spills and leaks may contaminate large areas outside the individual oil drilling/production site
due to the soil permeability of the area and the potential for overland flow. The Cheyenne
Bottoms watershed’s average soil permeability is 1.8 incheslhour. About 79% of the watershed
produces runoff even under relative low (l.5”lhour) potential runoff conditions. Runoff is
chiefly generated as infiltration excess with rainfall intensities greater than soil permeability. As
the watershed’s soil profiles become more saturated, excess overland flow is produced.
In 2007 there were heavy rains in the Cheyenne Bottoms area. The combined May and June rain
exceeded 20 inches, which set a historical record. Virtually the whole state wildlife area was
flooded, and about 20% of Nature Conservancy land was inundated. Considerable damage
occurred to roads and drainage structures. Roads were impassable in much of the area.
Flooding started to recede during the winter and spring of 2008
( TNC’s land drains into the Cheyenne
Bottoms Wildlife Area (WA). Any activity affecting TNC’s land will also affect the W A.
Construction of oil pads and associated structures may not be consistent with the objectives of
TNC and Cheyenne Bottoms WA managers. TNC states that it is working to remove artificial
barriers to water drainage, such as roads, levees, ditches, fence lines, trees, etc. with the goal to
restore overland sheet flow through a network of marshes and wet meadows
http://www ourinitiatives/regions/northamerica/unitedstates/kansas/placesweprotect/ c
heyenne-bottoms-preserve.xml, retrieved July 12, 2013).
Use of the roads, even if fill is not used to construct them, will cause changes to hydrological
patterns and overland sheet flow. The roads will compact the soil creating an unnatural flow
pattern. Vehicle use will destroy plants and create an opportunity for invasive plants to become
established. Roads fragment habitat. Disturbance and noise from vehicles will disrupt wildlife
use, including migratory birds by altering feeding, loafing, nesting, and rearing of young.
Information about the activity that is crucial to our evaluation is missing from the public notice.
We request additional information about the height of the oil well pad, the source of fill material
for the pad, the construction of any ditches to divert water flow around oil wells, how the oil will
be stored until collected from the site, and the length of time pits will be in existence.
Activities classified as “temporary impacts” by the applicant may be fairly long lasting as
scraping the earth and constructing pit ponds will alter the vegetation and hydrology in the
immediate area. It will take some time (temporal lag) for the vegetation to reach full
functionality. The public notice did not state how long the pits would be in existence.
Compensatory mitigation should be required for the impacts of constructing a pit pond and
scraping the soil.

It appears that there may potentially be numerous oil drilling and production activities in the
Cheyenne Bottoms watershed which may affect Waters of the United States. We recommend
that an EIS be prepared that will address all direct, indirect, and cumulative effects of the
proposed action, as well as, all interdependent and interrelated actions. Evidence is
increasing that the most devastating environmental effects may result not from the direct effects
of a particular action, but from the combination of individually minor effects of multiple actions
over time (Council of Environmental Quality 1997). Cumulative impacts can be defined as the
impact on the environment which results from the incremental impact of the action when added
to other past, present, and reasonably foreseeable future actions regardless of what agency
(Federal or non-Federal) undertakes such other actions.
We object to the issuance of this permit and recommend that the permit be held in abeyance
pending the completion of an EIS.
If however, this permit goes forward, the following recommendations should be incorporated as
Special Conditions to the permit:
Pits should be properly netted.
Electrical lines should be buried, or if above ground should be constructed and marked as
outlined above.
All fences should be marked to prevent bird collisions as outlined above.
All open posts and tubes should be capped to prevent bird and wildlife entry.
Disposal sites for both the solid and liquid waste generated by the drilling activity, including any
land spread of solid waste, should be disclosed as part of the permit process and evaluation of the
A Spill Prevention, Control, and Countermeasure (SPCC) plan must be prepared and included in
the mitigation plan. The Corps of Engineers and USFWS should be notified of any spills, leaks
or other discharges of oils and chemicals.

Any vegetation used at the site should be the local genotype. Local genotypes are plant sources
that are within 100 miles in latitude and 200 miles in longitude of the planting site. Plants evolve
to local conditions (climate, soil, moisture conditions, etc.) and can develop different genetic
structure (genotypes) within the same species. Gene pools of remnant plant communities can be
altered genetically by the invasion of non-native genotype plant species.

Baseline conditions (soil, plants, hydrology, and contours) at the site should be documented prior
to disturbance and used as a reference for restoration.

Erosion controls should be an integral component of the project to ensure that sediment
originating from the project does not enter the stream or migrate downstream. Erosion controls
should include on-land best management practices, such as mulching bare areas, properly
maintaining silt fences, hay bales, or coir mats, and reseeding disturbed areas as-soon-aspossible.

Good information on BMPs for erosion control can be found at Field Master FullSize Final-Jan03.pdf,
and In addition, instream
sediment controls should also be considered in sensitive areas or where upland erosion
controls may not be adequate. These practices should be properly maintained for the life of the
project. Before removing any in-stream structures, the accumulated silt should be carefully
removed, so as not to disturb the natural substrate or vegetation of the stream and to prevent the
downstream migration of sediments that have accumulated behind the structure.
No disposal areas should be allowed in the Bottoms area.

Invasive Species
Invasive species have been identified as a major factor in the decline of native flora and fauna
and impact aquatic resources. Executive order 13112 Section 2 (3) directs Federal agencies to
not authorize, fund, or carry out actions that it believes are likely to cause or promote the
introduction or spread of invasive species in the United States or elsewhere and to ensure that all
feasible and prudent measures to minimize risk of harm will be taken in conjunction with the
actions. Tools to perform Hazard Analysis and Critical Control Points (HACCP) planning for
invasive species control are available at!.· HACCP planning focuses
attention on critical control points where non-target species can be removed. Documenting risks
and methods used to remove non target species gives managers a strategic method to make
consistent decisions based on identified risks. Planning builds a logical framework of
information to weigh risks for species spread against management benefits. Invasive species of
particular concern in Kansas include the zebra mussel (Dreissena polymorpha), Eurasian
watermilfoil (Myriophyllum spicatum), purple loosestrife (Lythrum salicaria), Johnson grass
(Sorghum halepense), sericea lespedeza (Lespedeza cuneata), salt cedar (Tamarix spp.), and reed
canary grass (Phalaris arundinacea). Additional information on aquatic invasive species in
Kansas can be found on KDWP’s website

Human actions are the primary means of invasive species introductions. Prevention of introductions is the first and
most cost-effective option for dealing with invasive species. We strongly encourage the
inclusion of best management practices for the prevention of invasive species transfer in all
mitigation plans. At the minimum the following should be included as a permit condition:
All equipment brought on site will be thoroughly washed to remove dirt, seeds, and plant
parts. Any equipment that has been in any body of water within the past 30 days will be
thoroughly cleaned with hot water greater 1400 F (typically the temperature found at
commercial truck washes) and dried for a minimum of five days before being used at this
project site. In addition, before transporting equipment from the project site all visible
mud, plants and fish/animals will be removed, all water will be eliminated, and the
equipment will be thoroughly cleaned. Anything that came in contact with water will be
cleaned and dried following the above procedure.

All unavoidable impacts, both “temporary” and permanent, should require mitigation. The road
will be a long-term and continuing impact. Although the pit may be removed upon completion
of the drilling, it will be more than a short-term impact before the vegetation and hydrology at
the pit site returns to the pre-project functionality and condition.
Due to the importance of the Cheyenne Bottoms area, mitigation should only be allowed to occur
in the Cheyenne Bottoms area.
Due to the importance of Cheyenne Bottoms and the quality of the existing wetlands, the
mitigation ratio should be no less than 10: 1 for enhancement or restoration of similar wetlands.
If preservation is used the ratio should be no less than 20: 1.

It appears that there may potentially be numerous oil drilling and production activities in the
Cheyenne Bottoms watershed which may affect Waters of the United States. We recommend
that an EIS be prepared that will address all direct, indirect and cumulative effects of the
proposed action, as well as, all interdependent and interrelated actions. Evidence is
increasing that the most devastating environmental effects may result not from the direct effects
of a particular action, but from the combination of individually minor effects of multiple actions
over time (Council of Environmental Quality 1997). Cumulative impacts can be defined as the
impact on the environment which results from the incremental impact of the action when added
to other past, present, and reasonably foreseeable future actions regardless of what agency
(Federal or non-Federal) undertakes such other actions.
We believe that the cumulative impacts of multiple oil well drilling and production sites along
with related activities will result in substantial and unacceptable impacts to an aquatic resource
of national importance. We also believe that this exceptional resource, the Cheyenne Bottoms
complex, is critical to the welfare and survival of migratory birds including the whooping crane,
least tern, and piping plover.
Therefore, we object to the issuance of this permit and recommend that the permit be held in
abeyance pending the completion of an EIS. As per the procedural requirement of the 1992
404(q) MOA, Part IV.3 (a), we are advising you that the proposed work may affect aquatic
resources of national importance.

Thank you for the opportunity to comment on this project. If you have any questions, please
contact me or Susan Blackford of my staff at (785) 539-3474.


Heather Whitlaw
Field Supervisor
cc: EPA, Kansas City, KS (Wetland Protection Section)
KDWPT, Pratt, KS (Ecological Services)
KDHE, Topeka, KS (Bureau of Water)