Department of Interior Review Version

ACRONYMS and ABBREVIATIONS

APD Application for a Permit LACT Lease Automatic to Drill Custody Transfer ATV All Terrain Vehicle LMNG Little Missouri National Grasslands BA Biological Assessment MDP Master Development Plan BLM Bureau of Land m Meter Management BMP Best Management mi Mile Practice BOP Blowout Preventer NFSR National Forest System Road CFR Code of Federal pH the negative of the Regulations logarithm to base 10 of the activity of the hydrogen ion as a measure of acidity (< 7) or alkalinity (>7) COA Condition of Approval ROW Right of Way DEA Draft Economic Analysis SCADA Supervisory Control and Data Acquisition DPG Dakota Prairie SPCC Spill Prevention, Grasslands Containment, and Control Plan ESA Endangered Species Act SUPO Surface Use Plan of Operations FR Federal Register USFS United States Forest Service HDD Horizontal Directional USFWS U.S. Fish and Wildlife Drill Service km kilometer

INTRODUCTION

The Antelope Master Development Plan (MDP) is the activity under review in this biological opinion. The MDP is a proposal by the U.S. Forest Service (USFS) to approve construction of forty-nine horizontal oil and gas wells on nine shared well pads with associated roads (Project) and facilities in McKenzie County, North Dakota. The federal action under review is the proposed authorization of the Project pursuant to approval of a Surface Use Plan of Operations (SUPO) as part of the Application for a Permit to Drill (APD) by the USFS. The intention of the MDP is to evaluate, as a whole, the oil and gas development planned for a defined area for the next five to ten year period on USFS lands. The applicants in this federal action are Continental Resources, Inc. (Continental) and Slawson Exploration Company, Inc. (Slawson). Both applicants have existing sub-surface mineral leases.

The area of the proposal, the Little Missouri National Grassland (LMNG) encompasses over one million acres (ac) (over 400,000 hectares) in western North Dakota within an intermixed ownership pattern of private and state ownership (Figure 1). The LMNG is managed for multiple uses, including grazing, wildlife habitat, mineral development, recreation, and other physical and biological resources (USFS 2001).

During the fall of 2014, the U.S. Fish and Wildlife Service (USFWS) published a final rule (79 FR 63671 [October 24, 2014]), designating the Dakota skipper as a threatened species under the Endangered Species Act of 1973(ESA). The Dakota skipper is an obligate resident of undisturbed (remnant, untilled) high-quality prairie, ranging from wet-mesic tallgrass prairie to dry-mesic mixed-grass prairie habitat, which typically contains a high diversity of native plant species, including flowering herbaceous plants (forbs) (USFWS 2014).

Based on field surveys, high quality Dakota skipper habitat is present in the Project area. The proposed location of the well pads and associated infrastructure is expected to impact mixed- grass native prairie habitat that has the quality that could support the species throughout all life stages. Efforts to detect Dakota skippers in the Project areas have not been undertaken. Modeling data was used to show the connectivity of known occupied habitats with potential habitat in the analysis area. Using the modeling data both assumed occupied and dispersal habitat would be impacted by the Project.

Given the high quality Dakota skipper habitat affected by the Project and a reasonable certainty the species occurs in the area affected by the Project, the USFS determined that the proposed Project “may affect, is likely to adversely affect” the Dakota skipper. Thus, the USFWS’s responsibility pursuant to section 7(a)2 of the ESA is to first determine if the evidence supports a reasonable certainty that the species occurs in the area affected by the Project. An answer in the affirmative then necessitates the need to address whether the anticipated effects from the Project on the Dakota skipper significant. If the effects are determined to be significant, then the role of the USFWS is to determine if the responsible federal agency designed the Project to insure it will not appreciably decrease the likelihood of survival and recovery of the species.

Figure 1. Location overview of the proposed oil and gas wells well pads associated roads and facilities in McKenzie County, North Dakota. (Courtesy Wenck Associates, Mandan, ND

CONSULTATION HISTORY

• August 2, 2016 – On-site meeting with the USFS staff from the Supervisor’s Office and McKenzie River Ranger District. • September 16, 2016 – Meeting with the USFS staff from the Supervisor’s Office and McKenzie River Ranger District. • December 5, 2016 - Biological Assessment of Threatened and Endangered Species Antelope Master Development Plan is received by USFWS. • January 25, 2017 – Meeting between the USFWS and USFS to discuss the Project. The USFWS recommends to the USFS to include a mitigation plan to offset the anticipated long-term loss of habitat occupied by the Dakota skipper. • March 21, 2017 - Meeting between the USFWS and USFS to discuss compensatory mitigation. • May 9, 2017 – The USFWS requests an extension to 135-day regulatory timeframe to provide a final biological opinion on June 15, 2017. • June 5, 2017 – The USFS grants an extension to the regulatory timeframe. • July 9, 2017 – The USFWS provides a draft biological opinion to the USFS for review and comment. The incidental take statement was excluded from the review pending agreement from the action agency on the effects analysis. • August 4, 2017 – The USFS and USFWS conduct a teleconference call to discuss USFS feedback on the draft biological opinion, the status of the incidental take statement, and overall timeline to complete the biological opinion. The USFWS notifies the USFS that biological opinions are required to undergo a review by the Department of Interior prior to signature.

DESCRIPTION OF THE PROPOSED ACTION

The proposed action includes USFS approval for Slawson and Continental to construct surface facilities and associated access roads and utilities, drilling and operation of multiple oil and gas wells, and decommissioning and final reclamation of the sites. The typical life span of a productive oil and gas well is 30-40 years. The development will occur on the land surface and subsurface in McKenzie County, North Dakota (Figure 1).

Continental Resources, Inc.

Continental has proposed five new well pads to include 27 new wells and a new central tank battery; these Project elements are referred to as the Charolais facilities:

 The Charolais A well pad would be in the SWSW, Section 10, T.153N., R.94W., 5th PM, McKenzie County, ND (Figure 2). This pad would have 5 wells named Charolais Federal South 1-10H, Charolais Federal South 2-10H2, Charolais Federal South 3-10H, Charolais Federal South 4-10H1, and Charolais Federal South 5-10H.

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Figure 2. Map of the proposed Charolais and Brangus facilities (Courtesy Wenck Associates, Mandan, ND)

 The Charolais B pad would be in the NESW/SWNW, Section 14, T.153N., R.94W., 5th PM, McKenzie County, ND (Figure 2). This pad would have six wells named Charolais Federal South 6-10H, Charolais Federal South 7-10H1, Charolais Federal South 8-10H, Charolais Federal South 9-10H2, Charolais Federal South 10-10H, and Charolais Federal South 11-10H.  The Brangus A pad would be within the NENW, Section 14, T.153N., R.94W., 5th PM, McKenzie County, ND (Figure 2); most of this well pad would be on private surface. This pad would have fourteen wells named Brangus Federal 2-11H2, Brangus Federal 3-11H, Brangus Federal 4-11H, Brangus Federal 5-11H, Brangus Federal 6-11H1, Brangus Federal 7-11H, Brangus Federal 8-11H2, Brangus Federal 9-11H, Brangus Federal 10-11H1, Brangus Federal 11-11H, and four additional wells yet to be named.  The Charolais Central Tank Battery within the NWSE, Section 15, T.153N., R.94W., 5th PM, McKenzie County, ND (Figure 2). This pad would house production facilities to include, but not be limited to, flare(s), Lease Automatic Custody Transfer (LACT) meter(s), 3-phase separator(s), test treater(s), recycle(s), and saltwater and oil tanks.

Continental has proposed development of one well pad expansion (Harms A pad) to include eight (8) additional wells and one new well pad (Harms B pad) that would support two (2) new wells; these Project elements are referred to collectively as the Harms facilities:

 The existing Harms A pad is within the SESW, Section 32, T.153N., R.93W., 5th PM, McKenzie County, North Dakota (Figure 3). Eight new wells are proposed named Harms Federal 4-32H2, Harms Federal 5-32H, Harms Federal 6-32H1, Harms Federal 7-32H, Harms Federal 8-32H2, Harms Federal 9-32H, Harms Federal 10- 32H1, and Harms Federal 11-32H.  The new well pad, named the Harms B, pad would be within the SESE, Section 31, T.153N., R.93W., 5th PM, McKenzie County, ND (Figure 3). This pad would have two wells, one named Harms Federal 12-32H, and one well yet to be named.

Slawson Exploration Company, Inc.

Slawson has proposed two well pad expansions to include four (4) additional wells each, for a total of eight (8) additional wells. The proposal also includes one new well pad, which would support six (6) wells. These Project elements are referred to collectively as the Wolverine facilities:

 The existing Wolverine Pad 240 is within the SWSW, Section 31, T.153N., R.93W., 5th PM, McKenzie County, North Dakota (Figure 3). Four new wells are proposed named Wolverine Federal 8-31-30H, Wolverine Federal 10-31-30TF2H, Wolverine Federal 11- 31-30TF2H, and Wolverine Federal 18-31-30TF3H.

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Figure 3. Map of the proposed Harms and Wolverine facilities (Courtesy Wenck Associates, Mandan, ND)

 The existing Wolverine Pad 241 is within the SESE, Section 31, T.153N., R.93W., 5th PM, McKenzie County, North Dakota (Figure 3). Under the Proposed Action, four new wells are proposed named Wolverine Federal 9-31-30H, Wolverine Federal 13-31- 30TF2H, Wolverine Federal 14-31-30TF2H, and Wolverine Federal 15-31-30TF3H.  The new pad, named Wolverine Pad 278, would be in SWSE, Section 31, T.153N., R.93W., 5th PM, McKenzie County, ND (Figure 3). This pad would have six wells named Wolverine Federal 3-31-30H, Wolverine Federal 6-31-30TFH, Wolverine Federal 7-31-30TFH, Wolverine Federal 12-31-30TF2H, Wolverine Federal 16-31-30TF3H, and Wolverine Federal 17-31-30TF3H. Proposed utilities would leave the pad and parallel the proposed access road, tying into an existing utility corridor on private land.

Interdependent and Interrelated Activities

The BA identified an access road and utility corridor on private land, on the southern portion of Section 22, T153N, R94W. The purpose of this road is to access the Charolais A, B, and CTB well pads that are part of the federal actions. Therefore, the USFWS considers the construction and use of the access road on private land as inter-related and interdependent activities and as such, any associated effects to the Dakota skipper from the construction and use of the access road are evaluated in this biological opinion.

Summary of Project Construction Activities

Forty-nine oil and gas wells would be developed on three existing well pads and six new well pads. Seventy and a half total acres would be within grading limits for the proposed well pads, access roads and utility corridors. Of those acres, there are 9.61 disturbed, 1.69 woody, 0.12 agriculture, 17.79 non-native plants, 0.64 native shrubs, and 36.09 native grasslands. The acreage associated with the well pad and access road would remain as unvegetated, bare ground during the operations phase of the wells. However, the outer edges of the well pads and access roads would be reclaimed and revegetated during interim reclamation (described below under “Operations”).

Project Development Phases and Activities

The Project includes six overall phases; each phase includes several steps or activities (Table 1). All phases include activities on the land surface. Drilling and operation of the wells will include subsurface activities.

Table 1. Summary of the activities associated with the construction, operation, and decommisioning phases of the proposed Project. Affected Development Phase Activities Area Surveying and Staking Erosion Control Site Preparation Project Footprint and Proximity Grading and Contouring Clearing and Grubbing

Affected Development Phase Activities Area Filling, grading and compacting Surface Facility Gravel spreading and Construction compacting Project Footprint and Proximity, Above-Ground Facility Airborne Dust Extent Construction and Assembly Rig Construction and Installation Well Drilling Drilling and Cementing Hydraulic fracturing Project Footprint and Proximity Completion rig Excavation Utility Installation Installation Backfill Project Footprint and Proximity, Utility operations Airborne Dust Extent Interim Reclamation Well Pumping Project Footprint and Proximity, Operations Vehicle/Tanker Truck Use Airborne Dust Extent, and Transit Corridors Facility Operations Workover Rigs Facility Removal and Cementing Well Decommission and Reclaim and Re-contouring Project Footprint and Proximity, Final Reclamation Seeding Airborne Dust Extent Monitoring and Maintenance Equipment Refueling Control Erosion and Sediment Control Installation Other Activities Noxious Weed/Invasive Project Footprint and Proximity, Species Spray Drift extent Spill Response and Project Footprint and Proximity, Remediation Activities downstream areas

For a more detailed explanation of the development, phases and associated activities refer to BA, p. 3-2. Construction of each well pad and associated access roads would follow standards outlined in the Bureau of Land Management Gold Book (BLM and USFS 2007) and per USFS Conditions of Approval (COAs).

Conservation measures developed for the Project include:

Project Design

 To reduce the area of direct removal of potential habitat and to reduce habitat fragmentation, Project facilities would be consolidated and sited in areas of previous disturbance to the extent practicable.  National Forest System Roads (NFSR) are designed with a 15 mph speed limit, which may reduce potential mortality of flying adults from vehicle collisions and reduce dust.  Truck traffic and personnel vehicle use would be limited to specified haul routes during construction, drilling, and reclamation to limit resource damage to other roads.  Spoil piles and staging areas would be located outside of potential Dakota skipper habitat away from little bluestem hillsides.  Construction activities would not occur from June 10 to July 25 to avoid vehicle induced injury and death to the adult Dakota skippers during their flight stage.

Spill Prevention

 Refueling would be done only within the surfaced area of the well pad to prevent potential spills from affecting adjacent habitat.  To minimize the potential for spills to leave the well pad and impact adjacent habitat, every vessel containing production fluids (oil, water, gas) would be surrounded on all four sides by an impermeable dike/berm or steel containment system of sufficient capacity to contain the contents of the largest vessel within the dike plus one day’s production. In addition, a secondary perimeter dike/berm would be constructed around the pad during drilling operations to contain any overflows. Once the oil and gas wells are producing and interim reclamation has taken place, the secondary perimeter dike/berm would once again be constructed and remain in place for the life of the wells.  The sites would be monitored and checked at least once every 12-24 hours. A supervisory control and data acquisition (SCADA) system or automatic shutdown systems would be installed on the production facilities that would activate if established operating parameters (i.e., pressures or fluid levels) are exceeded.  A Blowout Preventer (BOP) with a minimum of two down-hole barriers would be in use anytime there are open-hole operations, drilling activities, completions, and work-overs to prevent spills and close the well in case of an emergency.  Spill Prevention, Containment, and Control Plans (SPCC) would be implemented.  Pipelines would be constructed, inspected, and maintained to minimize leaks and prevent settling, washouts, and erosion (COA #37.19).

Noxious and Invasive Plant Control

 Vehicles and equipment used for construction and drilling would be cleaned prior to entering and leaving the LMNG to remove all plant propagules (seeds and vegetative

parts that may sprout) to prevent the potential introduction and spread of noxious weeds and invasive species into adjacent habitat.  Noxious weeds and invasive species would be controlled within the road ROW, well pad, and facilities by approved chemical or mechanical means at least two weeks prior to construction, at least annually during operations, prior to reclamation activities, and during monitoring.  Herbicide application would be done according to label directions (i.e., concentrations, timing, weather conditions) to avoid drift to potential Dakota skipper habitat. Application would be site-specific using spot treatment and would only be done within the disturbed Project footprint.  Excavated topsoil infested with noxious weeds species would be stored separately from other topsoil and periodically treated with herbicides if sprouting of either is detected.  Construction sites would be closed to vehicles not involved with the construction until construction and revegetation is complete.  If straw is used for road stabilization and erosion control, it must be certified weed free.  It is the Operator’s responsibility to obtain borrows materials from pits or sites that have been inspected and certified as weed free sites by the McKenzie County Weed Board or other individual County Weed Board and approved by the USFS prior to use.  Roads would not be bladed where noxious weeds are found.

Dust Abatement

 Airborne dust would be reduced during construction and operation of the proposed Project by using water, calcium chloride and/or magnesium chloride.  A monitoring plan would be developed to document potential dust dispersion within the construction area of each well pad. Pesticide and Herbicide Management

 Pesticides to control insects and rodents would be prohibited within the Project area  Restrictions on broad application of herbicides that may be harmful to the Dakota skippers, their nectar plants, or grasses used by larvae and pupae and specifically require spot treatments and targeting of invasive plants/noxious weeds in Dakota skipper habitat to avoid adverse effects to important native plant species. Broadcast spraying would be prohibited.  Herbicide application shall occur prior to June 10 or after July 25 each year to avoid the Dakota skipper flight stage  Applicators must be certified and readily able to recognize and locate native grass and forbs required by Dakota skippers to ensure native plants are not treated with herbicides

ACTION AREA

The Action Area is defined as all areas to be affected directly or indirectly by the federal action and not merely the immediate area involved in the action (50 CFR § 402.02). In delineating the Action Area, we identified the extent of the area affected by the farthest stressor caused by the

Project on the environment. Stressors, as used in this context, are any physical, chemical, or biologically based entities resulting directly or indirectly from a Project that co-occur with the listed resources in the area affected by the action.

The USFWS considers the direct and indirect effects of any activities, including activities that are interrelated and/or interdependent to the proposed development as potential indirect effects (50 CFR §402.02). Some of these activities may occur concurrent with the Project or later in time (indirect effects). For example, activities for this action include transportation along local and regional roads, sourcing of gravel/scoria surfacing materials, sourcing of freshwater for drilling, and disposing of liquid and solid wastes. These potentially inter-related and/or inter- connected activities were evaluated to determine the extent to which they would or would not occur “but for” the proposed development.

In the following discussion, we establish the boundaries of the Action Area based upon the expected maximum spatial extent of effects from the proposed development activities on the physical environment. We first list the broad categories of activity types that are expected to affect the environment and then we specify the spatial extent of the area affected based upon the anticipated stressors induced by those activity types.

Spatial Distribution of Potential Stressors

In the section Description of the Proposed Action, we summarized the proposed development in terms of six main phases, each phase consisting of one to several different activities (Table 2). From our review of the proposal, we identified the following seven general categories of potential stressors associated with the planned activities.

1. Acoustic Above-ambient sound levels are expected from the use of construction equipment, vehicle traffic, and facility and maintenance operations throughout the life of the wells. These activities are expected to include concussive and continuous sound sources. Above-ambient sound levels would be highest during construction and drilling phases, but would occur intermittently at lower levels throughout operation. Acoustic stressors could occur in proximity to the Project’s roads and well pads, transit corridors, and material source and disposal sites, extending into areas occupied by the Dakota skipper.

2. Anthropogenic Presence The physical presence of humans, development activities, and moving vehicles and equipment on the land surface may be visually or physically disruptive to Dakota skipper during an adult individual’s daily pursuits for food, cover or shelter, resting or loafing, mating, and oviposition. The potential for these effects on Dakota skipper could occur in proximity to the Project’s roads and well pads, transit corridors, and material source and disposal sites, should these areas be adjacent to occupied Dakota skipper habitat.

Table 2. Summary of the activities associated with the construction, operation, and decommissioning phases of the proposed Project that may affect the Dakota skipper. Activities Potentially Development Affected Potential Activities Affecting Dakota Phase Area Stressors Skipper Acoustic Anthropogenic Presence Vegetation Trampling Physical Site Surveying and Project Footprint Vehicle/Equipment Impact Preparation Staking and Proximity Movement Habitat Soil/Vegetation Removal Degradation Habitat Removal Acoustic Invasive Distinct patches Vehicle/Equipment Anthropogenic Species within Project Movement Presence Treatment Footprint Toxic liquids/herbicides Chemical Contaminants Acoustic Anthropogenic Presence Physical Erosion Project Footprint Vegetation Trampling Impact Control and Proximity Habitat Degradation Habitat Removal Acoustic Anthropogenic Presence Physical Project Footprint Vehicle/Equipment Impact Clearing and and Proximity, Movement Habitat Grubbing Airborne Dust Airborne Dust Degradation Extent Soil/Vegetation Removal Habitat Removal Habitat Fragmentation Acoustic Anthropogenic Presence Project Footprint Vehicle/Equipment Surface Filling, Physical and Proximity, Movement Facility Grading and Impact Airborne Dust Airborne Dust Construction Compacting Habitat Extent Soil/Vegetation Removal Removal Habitat Fragmentation

Activities Potentially Development Affected Potential Activities Affecting Dakota Phase Area Stressors Skipper Acoustic Anthropogenic Project Footprint Vehicle/Equipment Gravel Presence and Proximity, Movement spreading and Physical Airborne Dust Airborne Dust compacting Impact Extent Soil/Vegetation Removal Habitat Degradation Acoustic Above- Anthropogenic Project Footprint Ground Vehicle/Equipment Presence and Proximity, Facility Movement Physical Airborne Dust Construction Airborne Dust Impact Extent and Assembly Habitat Degradation Acoustic Anthropogenic Rig Project Footprint Vehicle/Equipment Presence Construction and Proximity, Movement Physical and Airborne Dust Airborne Dust Impact Mobilization Extent Habitat Degradation Acoustic Vehicle/Equipment Anthropogenic Project Footprint Movement Presence Drilling and and Proximity, Airborne Dust Physical Cementing Airborne Dust Artificial Night Lighting Impact Extent Habitat Degradation Well Drilling Acoustic Anthropogenic Project Footprint Vehicle/Equipment Presence Hydraulic and Proximity, Movement Physical Fracturing Airborne Dust Airborne Dust Impact Extent Artificial Night Lighting Habitat Degradation Acoustic Anthropogenic Project Footprint Vehicle/Equipment Presence Completion and Proximity, Movement Physical Rig Airborne Dust Airborne Dust Impact Extent Artificial Night Lighting Habitat Degradation

Activities Potentially Development Affected Potential Activities Affecting Dakota Phase Area Stressors Skipper Acoustic Anthropogenic Project Footprint Vehicle/Equipment Presence and Proximity, Movement Excavation Physical Airborne Dust Airborne Dust Impact Extent Habitat Degradation Acoustic Anthropogenic Project Footprint Vehicle/Equipment Presence Utility and Proximity, Movement Installation Physical Installation Airborne Dust Airborne Dust Impact Extent Habitat Degradation Acoustic Anthropogenic Project Footprint Vehicle/Equipment Presence and Proximity, Movement Backfill Physical Airborne Dust Airborne Dust Impact Extent Habitat Degradation Acoustic Anthropogenic Vehicle/Equipment Presence Utility Project Footprint Movement Physical operations and Proximity, Impact Habitat Degradation Acoustic Anthropogenic Project Footprint Vehicle/Equipment Presence Interim and Proximity, Movement Physical Operations Reclamation Airborne Dust Airborne Dust Impact Extent Habitat Degradation Acoustic Anthropogenic Project Footprint Presence Vehicle/Equipment and Proximity, Physical Well Pumping Movement Airborne Dust Impact Oil or Brine Spill Extent Habitat Degradation Contaminants

Activities Potentially Development Affected Potential Activities Affecting Dakota Phase Area Stressors Skipper Acoustic Project Footprint Anthropogenic Vehicle/Equipment Vehicle/ and Proximity, Presence Movement Tanker Truck Airborne Dust Physical Airborne Dust Use Extent, Transit Impact

Corridors Habitat Degradation Acoustic Anthropogenic Project Footprint Vehicle/Equipment Presence Facility and Proximity, Movement Physical Operation Airborne Dust Airborne Dust Impact Extent Flaring Habitat Degradation Acoustic Anthropogenic Project Footprint Vehicle/Equipment Presence Workover and Proximity, Movement Physical Rigs Airborne Dust Airborne Dust Impact Extent Habitat Degradation Acoustic Anthropogenic Facility Project Footprint Vehicle/Equipment Presence Removal and and Proximity, Movement Physical Cementing Airborne Dust Airborne Dust Impact Well Extent Habitat Degradation Acoustic Anthropogenic Project Footprint Decommission Vehicle/Equipment Presence Reclaim and and Proximity, and Final Movement Physical Recountouring Airborne Dust Reclamation Airborne Dust Impact Extent Habitat Degradation Acoustic Anthropogenic Project Footprint Vehicle/Equipment Presence and Proximity, Seeding Movement Physical Airborne Dust Airborne Dust Impact Extent Habitat Degradation

Activities Potentially Development Affected Potential Activities Affecting Dakota Phase Area Stressors Skipper Acoustic Anthropogenic Project Footprint Monitoring Vehicle/Equipment Presence and Proximity, and Movement Physical Airborne Dust Maintenance Airborne Dust Impact Extent Habitat Degradation Acoustic Anthropogenic Noxious Presence Vehicle/Equipment Weed/ Physical Project Footprint, Movement Invasive Impact spray drift extent Airborne Dust Species Habitat Toxic liquid/herbicides Control Degradation Chemical Contaminants Acoustic Anthropogenic Erosion and Project Footprint Vehicle/Equipment Presence Sediment and Proximity, Movement Physical Control Airborne Dust Other Airborne Dust Impact Installation Extent Activities Habitat Degradation Habitat Equipment Project Footprint Fuel Spill Degradation Refueling Contaminants Acoustic Anthropogenic Presence Spill Response Project Footprint Vehicle/Equipment Physical and and Proximity, Movement Impact Remediation Downgradient/down Soil/Vegetation Removal Habitat Activities stream areas Degradation Habitat Loss Contaminants

3. Physical Impact The use of equipment and vehicles may physically impact (strike) Dakota skipper during the development activities. Eggs and larvae could be crushed by wheels and during soil disturbance and vegetation clearing and removal. Adults could be struck while in flight by moving vehicles and equipment. Physical impacts could occur within the Project footprint, within transit corridors, or within the footprint of material source and disposal sites, should these areas be adjacent to or overlap with occupied Dakota skipper habitat.

4. Habitat Loss: Removal and Fragmentation Effects to potential or occupied Dakota skipper habitat include vegetation destruction during pre-construction engineering work; direct removal of habitat during the vegetation clearing and soil excavation steps of well pad and access road construction on the land surface; and habitat fragmentation from the creation of open, disturbed surfaces between habitat patches. Habitat degradation stemming from Project disturbances could also occur from noxious weed encroachment into adjacent potential or occupied habitat. Impacts to habitat could occur within or adjacent to the Project footprint or the footprint of material source and disposal sites, should these areas be adjacent to or overlap with occupied Dakota skipper habitat.

5. Habitat Degradation: Microclimatic Modification Several Project activities could degrade Dakota skipper habitat by modifying microclimatic conditions. Airborne dust from moving vehicles and equipment could settle on adjacent habitat, potentially affecting eggs, larvae, and adults. This potential stressor could occur in proximity to the Project’s roads and well pads, traffic corridors, and material source and disposal sites, should these areas be adjacent to occupied Dakota skipper habitat. Artificial lighting at night from light towers during 24-hour well drilling and completion operations or from flare stacks during well production could potentially disrupt the normal diurnal behavior of adults. Flares also raise ambient temperatures and can emit hydrogen sulfide gas in their immediate radius, which could affect Dakota skipper eggs, larvae, or adults. Microclimatic lighting, temperature, and gas emission stressors could occur where occupied Dakota skipper habitat is in close proximity to the Project’s well pads.

6. Contaminants The primary contaminant sources in the Project are crude oil and produced saltwater (brine with heavy metals). Lethal consequences for Dakota skipper eggs, larvae, or adults may result through contact with these products due to a spill or leak that extends to potential or occupied habitat. Contaminant stressors could affect the species where occupied Dakota skipper habitat is in proximity to the Project’s roads, pipeline corridors, and well pads.

7. Predation The Project may intensify predation of the Dakota skipper due to increases in the density or types of predators (birds or insects) that may be attracted to disturbed sites, human presence, or some aspect of Project activities. Increased predation could affect eggs, larvae, or adults in occupied Dakota skipper habitat in proximity to the Project’s roads and well pads.

Support Activities within the Action Area

Support activities for this action include transportation along local and regional roads, sourcing of gravel/scoria materials, sourcing of freshwater for drilling, and disposing of liquid and solid wastes at disposal sites. The traffic and the exchange of materials specifically associated with

19 the development of the Project would not occur were it not for the proposed action. However, oil and gas development is common in the region of the Project, and associated traffic and exchange of gravel/scoria, freshwater, and waste are collective aspects of substantial ongoing development in the local area. The farthest spatial extent of any potential stressor was determined to be airborne dust caused by the grading and soil movement by the heavy equipment operation and motorized truck traffic during the construction and early operational phases.

Traffic

A high volume of equipment transportation and motorized traffic are anticipated with the construction of the proposed Project. Truck traffic is also expected to occur during the operating lifetime of the wells. Access roads will be constructed or improved for each site and located as depicted on Figure 1. Traffic on constructed roads for the Charolais and Brangus A well pads are expected to be solely due to Project activities because each site is at the end of a transit corridor. Traffic on roads for the Wolverine and Harms well pads will be a mix of new and existing traffic. Preceding the newly constructed roads are existing access roads, county roads, and highways used for local and regional transportation and access to other well sites. Although these roads will be specifically utilized for the proposed Project, they will also support traffic associated with other non-Project activities. In this case, we determined that the vehicular traffic on the transit corridors and their associated stressors become relevant to the analysis for this Project only when the level of traffic becomes measurably higher than ambient levels.

To determine if and to what extent the existing transit corridors should be included within the Action Area, we analyzed traffic levels (Tables 3 and 4) on roads expected due to the Project. Our analysis included several assumptions, as follows:

 We estimated existing traffic to active oil and gas well pads only. We did not attempt to evaluate traffic associated with recreational users; local residents; access by landowners to agricultural fields or pasture allotments; or other oil and gas related traffic to tank sites, abandoned or reclaimed sites, gravel pits, etc.  We focused our analysis on traffic associated with the long-term operation of the existing and proposed wells. For the existing traffic, we refer to this as the “ambient” traffic level. We did not quantify the Project-induced traffic surges expected to occur during the construction, drilling, and completion stages of the initial development of the sites.  Based on standard industry information, each site/well pad can receive three to five visits with a pickup truck each day during operation for monitoring, maintenance, and other operational activities. Additionally, if no pipelines are in use to collect produced oil, gas, and saltwater, 5-10 tanker trucks will access each well to haul off products. o We did not differentiate between pickup and tanker truck traffic. o We used an estimated maximum of 10 vehicle trips per well per day. This number will typically be less because pickup traffic is per well pad, not per well, and all well pads along one access road would be checked in one round trip. The range in tanker truck trips per well is based on quantities of produced fluids and may vary considerably by well: fluids from different wells can be mixed, so fluids from multiple wells can be added to one truck until full.

o We assumed no pipelines would be used as a worst-case scenario, though in reality the proposed sites and many of the existing sites use pipelines to collect product.

Table 3. Estimated traffic from the Charolais and Brangus facilities Charolais and Brangus sites # Wells # Vehicles/Day West Node 5 50 Central Node 6 60 East Node 14 140

Table 4. Estimated traffic from the Harms and Wolverines facilities Harms and Wolverine Sites # Wells # Vehicles/Day East Node 14 140 West Node 10 100 Stressors associated with increased traffic along these portions of the route, due specifically to the Project, will be evaluated for potential effects to the Dakota skipper.

Material Source and Disposal Sites

Gravel or scoria sources used for surfacing well pads and roads have not been identified because the specific source site is typically based on demand or availability at the time it is needed. However, several possible existing gravel or scoria sources exist in McKenzie County and surrounding counties. The Companies proposed to use private or commercial gravel or scoria sources. Because any effects of these sites are included as part of the existing baseline conditions, they will not be included in the Action Area.

Freshwater sources for drilling and waste disposal sites have not been identified because the specific source or site to be used is typically determined based on demand or availability at the time it is needed. However, several possible existing freshwater sources and disposal sites exist in McKenzie County and surrounding counties. The Companies propose to use private or commercial freshwater sources and waste disposal sites that have been permitted and approved by all necessary regulatory agencies. Because any effects of these sites are included as part of the existing baseline conditions, they will not be included in the Action Area.

Delineation of the Action Area

The Action Area is defined as the outer limits of the 29,872 ac Antelope MDP (Figure 4). There are a total of 63 existing, active well pads supporting 150 oil and gas wells in the Antelope MDP. On USFS lands, about 10,576 ac, there are 17 well pads supporting 28 wells. Wells on private land are typically on flat agricultural land along established roads. The USFS lands are typically rugged, dominated by native plant communities. As a result, long roads have been constructed to

21 traverse the rugged topography to access well pads on flat plateaus. The proposed Project would increase the total well pads from 17 to 23 on USFS lands.

Figure 4. Antelope MDP Analysis Area and Existing Oil and Gas Wells (Courtesy WENCK, Mandan, ND) 23

APPROACH TO THE ANALYSIS

The USFWS considered the impacts of the proposed Project in the context of the current habitat conditions and the anticipated changes in habitat conditions in years to come. For the various life stages of the Dakota skipper, habitat loss, degradation, and modification of native prairie are identified as major causes of the species decline (USFWS 2014)). In describing the effects from the Project on Dakota skippers, we have already identified all physical, chemical, or biological factors, directly or indirectly resulting from the construction and operation of the Project that may affect the Dakota skipper within the Action Area. Thus, in this case, the Action Area encompasses more area than the footprint area encompassed by the Project.

The section referred to as the Environmental Baseline characterizes the current status and overall condition of the species in the Action Area, the factors responsible for that condition, the conservation role of the Action Area (which is the role the Action Area plays in re-establishing a viable (or persistent) range-wide population of the species), and the current threats to survival and recovery. We then conduct an Exposure Analysis (Effects Section). In this step, we identify the population of Dakota skippers (and/or habitat) known or expected to co-occur with the Project. Each stressor of interest is described, to the extent possible, in terms of its timing, duration, frequency, intensity, and location.

The USFWS uses this step to assess if and to what extent Dakota skippers would be affected by the Project. For Dakota skippers to be directly affected by the Project would require the species to simultaneously co-occur (in space and time) with stressors from the Project. Indirect effects (those effects from the Project that are expected to occur later in time) are also considered.

The nature of indirect effects are inherently more difficult to assess as they are described in the context of future affects to the species, even though the species may not co-occur in space at the time when Project construction activities occur. An example of future effects that may be significant would be the loss of habitat that otherwise may have supported future pupae and larval stages for Dakota skippers that could have expanded into the area due recovery. In this sense, the Project could limit the distribution, dispersal and/or expansion of the species range.

If either the direct or indirect exposure to Project-induced stressors is anticipated, then the next step is to use the best available scientific evidence to assess the response of the species and to determine whether the individual or collective response of individuals is biologically significant or meaningful. We then would describe the likely response of affected Dakota skippers or the habitat in the Response Analysis (Effects Section). We also attempt to collate the effects on the affected Dakota skipper individuals/habitat and summarize them at the scale of the subpopulation(s)/habitat for the skipper. This summary of effects is then evaluated in terms of whether or not the Project will appreciably decrease the likelihood of survival and recovery of the Dakota skipper, commonly referred to as the jeopardy analysis. The jeopardy analysis is presented in the Integration and Synthesis section.

In summary and in accordance with policy and regulation, the jeopardy analysis in this Opinion relies on four components:

(1) The Status of the Species, which evaluates the range-wide condition of Dakota skipper, the factors responsible for that condition, and the species’ survival and recovery needs; (2) The Environmental Baseline, which evaluates the condition of the species in the Action Area, the factors responsible for that condition, and the relationship of the Action Area to the survival and recovery of the species; (3) The Effects of the Action, which determines the direct and indirect impacts of the proposed Federal action and the effects of any interrelated or interdependent activities on each species; and (4) Cumulative Effects, which evaluates the effects of future, non-Federal activities in the Action Area on the species.

Information Sources and Weight

The USFWS uses the best scientific and commercial evidence available to support the analyses and finding within biological opinions. Species monitoring reports from survey efforts by research entities associated with Federal, State, and Tribal agencies, as well as non-governmental organizations, are considered strong sources of evidence. Additional information includes reports and other documents such as Federal Register notices, recovery plans, and scientific reviews and summaries. To complete our search for evidence, we conduct a search of peer- reviewed scientific journals (global) and other literature, including doctoral dissertations and master’s theses to capture recent advancements in scientific knowledge.

All information sources are weighted according to the strength of evidence in the document. That is, we assign the highest weight to studies that are robust and contain a high degree of scientific rigor. Field experiments, particularly those where potentially confounding variables are controlled, are given the greatest weight when compared to field studies where those variables are controlled to a lesser extent. Field studies with larger sample sizes and smaller variances are generally considered stronger evidence than those with smaller sample sizes and larger variances. Well-designed field experiments are also generally considered to provide stronger evidence than the conclusions from computer simulations – particularly those simulations that are not based upon field studies or the species’ life history.

STATUS OF THE SPECIES: DAKOTA SKIPPER

Legal Status

The USFWS published a final rule making (79 FR 63672 [October 23, 2014]) where a threatened species status was determined for the Dakota skipper, currently found in Minnesota, North Dakota, South Dakota, Manitoba, and Saskatchewan and establishing a 4(d) rule. The listing of the Dakota skipper and the 4(d) rule became effective November 24, 2014.

The 4(d) rule exempts incidental take of Dakota skippers from the following activities on non- federal lands (except where explicitly stated otherwise, these activities must be associated with livestock ranching):

1) Fence construction and maintenance; 2) Livestock gathering and management (installation and maintenance of corrals; carefully siting loading chutes and other livestock working facilities with respect to the location and distribution of important Dakota skipper habitat); 3) Development and maintenance of livestock watering facilities; 4) Noxious weed control (spot-spraying herbicides for noxious weed control and mowing to control noxious weeds); 5) Haying native haylands after July 15; 6) Mowing section line rights-of-way and recreational trails (does not need to be associated with livestock ranching for the 4(d) rule to apply); and 7) Livestock (cattle, horse or bison) grazing.

In addition, on October 24, 2013, the USFWS published a proposed rule to designate critical habitat (CH) for the Dakota skipper. Approximately 27,782 ac were proposed for designation as critical habitat for the Dakota skipper in Minnesota, North Dakota (McHenry, McKenzie, Ransom, Richland, Rolette, and Wells counties), and South Dakota. On September 23, 2014, the USFWS announced that the comment period on the proposed rule was reopening and that the USFWS was eliminating one proposed CH area and modifying the boundaries of five CH areas in Minnesota. The comment period closed on October 23, 2014. A final rule designating CH for the Dakota skipper was published October 1, 2015.

On September 23, 2014, the USFWS revised the proposed critical habitat rule to remove one proposed unit for the Dakota skipper in Minnesota, and we revised the boundaries of five Dakota skipper units in Minnesota (79 FR 56704). These changes were proposed based on new or updated biological and ecological information for those areas. The USFWS also announced the availability of a draft economic analysis (DEA) of the proposed designation of critical habitat for the Dakota skipper and an amended required determinations section of the proposal. The USFWS re-opened a comment period to allow interested parties an opportunity to comment simultaneously on the proposed 4(d) rule, the proposed critical habitat rule, the associated DEA, and the amended required determinations section (79 FR 56704).

Description The Dakota skipper is a member of the “branded” skipper family Hesperiidae and was first described in 1911 from collections taken at Volga, South Dakota, and Grinnell, Iowa (Skinner 1911 in Royer and Marrone 1992). Dakota skipper is the accepted common name for H. dacotae.

The Dakota skipper is a small to medium-sized butterfly with a robust body, narrow angular forewings, and shorter more rounded hind wings (Minnesota Department of Natural Resources [MNDNR] 2015), with a wingspan of 0.9 to1.3 inches and hooked antennae (Royer and Marrone 1992). Due to a thick, well-muscled thorax, Dakota skippers have a faster and more powerful flight than most butterflies (Scott 1986).

Adult Dakota skippers have variable markings. The dorsal surface of adult male wings ranges in color from tawny orange to brown and has a prominent mark on the forewing; the ventral surface is dusty yellow-orange (Royer and Marrone 1992). The dorsal surface of adult females is darker brown with diffused tawny orange spots and a few diffused white spots restricted to the margin of the forewing; the ventral surfaces are dusty gray-brown with a faint white spotband across the middle of the wing (Royer and Marrone 1992). Adult Dakota skippers may be confused with the Ottoe skipper (H. ottoe), which is somewhat larger with slightly longer wings (Royer and Marrone 1992). Dakota skipper pupae are reddish-brown, and the larvae are light brown with a black collar and dark brown head (McCabe 1981).

Life Cycle

Dakota skippers are univoltine (having a single flight per year), with an adult flight period that may occur from the middle of June through the end of July (McCabe 1979, 1981; Dana 1991; Royer and Marrone 1992a; Skadsen 1997; Swengel and Swengel 1999). The Dakota skipper flight period in a locality lasts 2 to 4 weeks, and mating occurs throughout this period (Braker 1985; McCabe and Post 1977; McCabe 1979, 1981; Dana 1991, Swengel and Swengel 1999). Adult male Dakota skippers exhibit perching behavior (perch on tall plants to search for females), but occasionally appear to patrol in search of mating opportunities (Royer and Marrone 1992a).

Dakota skippers lay eggs on broadleaf plants and grasses, although only larvae feed on grasses. Potential lifetime fecundity is between 180 and 250 eggs per female; realized fecundity depends on longevity (Dana 1991). Eggs hatch after incubating for 7-20 days. After hatching, Dakota skipper larvae form shelters at or below the ground surface with silk and fastened together with plant tissue. They construct 2-3 successively larger shelters as they grow. The larvae emerge from their shelters at night to forage and appear to clip blades of grass and bring them back to their shelters to consume (Dana 1991; McCabe 1979, 1981; Royer and Marrone 1992a).

Dakota skippers overwinter as larvae and complete one generation per year. Eggs hatch after incubating for 7-20 days; therefore hatching is likely completed before the end of July (Runquist 2014 cited in 79 FR 63672). After hatching, Dakota skipper larvae crawl to the bases of grass plants where they form shelters at or below the ground surface with silk, fastened together with

27 plant tissue. They construct 2-3 successively larger shelters as they grow. The larvae emerge from their shelters at night to forage and appear to clip blades of grass and bring them back to their shelters to consume (Dana 1991; McCabe 1979, 1981; Royer and Marrone 1992a).

Dakota skippers have 6 or 7 larval stages (instars) and overwinter in ground level or subsurface shelters during their fourth or fifth instar (Dana 1991). In the spring, larvae resume feeding and undergo two additional molts before they pupate. During the last two instars, larvae shift from buried shelters to horizontal shelters at the soil surface (Dana 1991).

Dakota skippers are not known to disperse widely. Dakota skippers have a mean mobility of 3.5 (standard deviation = 0.7) on a scale of 0 (sedentary) to 10 (highly mobile) (Burke et al. 2011, Fitzsimmons 2012 cited in 79 FR 63672). Dakota skippers may be incapable of moving greater than 1 km (0.6 mi) between patches of prairie habitat separated by structurally similar habitats (e.g., crop fields, grass-dominated fields or pasture, but not necessarily native prairie) (Cochrane and Delphey 2002). In a mark-recapture study, average adult movement of Dakota skipper were less than 300 meters (m) (984 ft.) over 3-7 days. They crossed less than 200 m (656 ft.) of unsuitable habitat between two prairie patches and moved along ridges more frequently than across valleys (Dana 1991). Roads and crop fields were suspected impediments for movement among prairie patches along two sites.

Research suggests that dispersal of Dakota skipper is very limited due in part to its short adult life span and single annual flight (USFWS 2014). In a mark–recapture study, average adult movements of Dakota skipper were less than 984 feet over 3 to 7 days and marked adults crossed areas of unsuitable habitat when it didn’t exceed 656 ft between two prairie patches. The species’ movements also tended to follow ridges more often than across valleys (Dana 1991).

Skadsen (1999) reported possible movement of Dakota skippers in 1998 from a known population at least 800 m (2625 ft.) away to a site with an unusually heavy growth of purple coneflower. The two sites were connected by native vegetation of varying quality, interspersed by a few asphalt and gravel roads. The best information we have available suggests that dispersal of Dakota skipper is very limited due in part to its short adult life span and single annual flight. Thus, the species’ extirpation from a site is likely permanent unless it is within about 1 km (0.6 mi) of a site that generates a sufficient number of emigrants, or if they are artificially reintroduced to a site. However, the capability to propagate the Dakota skipper is currently lacking (79 FR 63672).

Habitat Requirements

The habitat requirements for the species are summarized as follows:

1) wet-mesic tallgrass or mixed-grass remnant untilled prairie that occurs on near-shore glacial lake soil deposits or high-quality dry-mesic remnant untilled prairie on rolling terrain consisting of gravelly glacial moraine soil deposits, containing: a. A predominance of native grasses and native flowering forbs,

b. glacial soils that provide the soil surface or near surface (between soil surface and 2 cm depth) micro-climate conditions conducive to Dakota skipper larval survival and native prairie vegetation such as, mean soil surface summer temperatures from 17.8 to 20.5 °C (64.0 to 68.9 °F), mean near soil surface dew point ranging from 13.9 to 16.8 °C (57.0 to 62.2 °F), mean near soil surface relative humidity between 72.5 and 85.1 percent, and soil bulk densities between 0.86g/cm3 and 1.28 g/cm3 (0.5oz/in3 to 0.74 oz/in3); c. if present, trees or large shrub cover of less than 5 percent of area in dry prairies and less than 25 percent in wet mesic prairies; and d. if present, nonnative invasive plant species occurring in less than 5 percent of area.

2) native grasses and native flowering forbs for larval and adult food and shelter, specifically; a. at least one of the following native grasses to provide larval food and shelter sources during Dakota skipper larval stages: Prairie dropseed (Sporobolus heterolepis) or little bluestem (Schizachyrium scoparium); and b. one or more of the following forbs in bloom to provide nectar and water sources during the Dakota skipper flight period: Purple coneflower (Echinacea angustifolia), bluebell bellflower (Campanula rotundifolia), white prairie clover (Dalea candida), upright prairie coneflower (Ratibida columnifera), fleabane (Erigeron spp.), blanketflower (Gaillardia spp.), black-eyed Susan (Rudbeckia hirta), yellow sundrops (Calylophus serrulatus), groundplum milkvetch (Astragalus crassicarpus), common gaillardia (Gaillardia aristata), or tooth-leaved primrose (Calylophus serrulata).

3) dispersal grassland habitat that is within 1 km (0.6 mi) of native high quality remnant prairie that connects high-quality wet-mesic to dry tallgrass prairies or moist meadow habitats. Dispersal grassland habitat consists of undeveloped open areas dominated by perennial grassland with limited or no barriers to dispersal including tree or shrub cover less than 25 percent of the area and no row crops such as corn, beans, potatoes, or sunflowers.

Distribution of the Species

Once found in native prairies in five States and two Canadian provinces, the Dakota skipper and its habitat have undergone dramatic declines; the species is now limited to native prairie remnants in three States and two Canadian provinces (79 FR 63672). The Dakota skipper is presumed extirpated from Illinois and Iowa and no longer found in eastern Minnesota. Populations1 persist in a few locations in western Minnesota, northeastern South Dakota, North Dakota, southern Manitoba, and southeastern Saskatchewan. Royer and Marrone (1992 in 79 FR 63672) speculated that Dakota skippers may also occur in far eastern Montana and southeastern

1 There is no intent here to distinguish between Dakota skipper populations which are spatially separated with inter- connectivity (referred to as a metapopulation) from populations of Dakota skippers which may not interact due to isolation. 29

Saskatchewan, in habitats similar to those occupied by the species in northwestern North Dakota. The Dakota skipper was subsequently found in Saskatchewan in 2001 after 40 years of searching (Hooper 2002, pers. comm. in 79 FR 63672), but no actual records have been found in Montana and Royer (2002, pers. comm. in 79 FR 63672) no longer thinks that the species ever occurred in Montana (Table 5).

From its earliest identification, the Dakota skipper was considered rare (Royer and Marrone 1992 in 79 FR 63672), although considerable destruction of its habitat likely occurred even before the species was first described in 1911. Habitat destruction and degradation has greatly fragmented Dakota skipper’s range from its core through its northern and western fringes (McCabe 1981; Royer and Marrone 1992; Schlicht and Saunders 1994; Royer 1997; Schlicht 1997; Schlicht 1997; Skadsen 1997; Skadsen 1999; Swengel and Swengel 1999). The historical distribution of Dakota skippers may never be precisely known because “much of tallgrass prairie was extirpated prior to extensive ecological study” (Steinauer and Collins 1994), such as butterfly surveys. Destruction of tallgrass and mixed-grass prairie began in 1830 (Samson and Knopf 1994), but significant documentation of the ecosystem’s butterfly fauna did not begin until about 1960. Therefore, most of the species’ decline probably went unrecorded. Based on records of vouchered specimens, however, we know that Dakota skipper range has contracted northward out of Illinois and Iowa (79 FR 63672).

The species was last recorded in Illinois in 1888 (McCabe 1981) and in Iowa in 1992 (Orwig and Schlicht 1999). Britten and Glasford’s (2002) genetic analyses support the presumption that this species formerly had a relatively continuous distribution; the small genetic divergence (genetic distance) among seven sites in Minnesota and South Dakota indicate that populations there were once connected. Dakota skipper dispersal is very limited due in part to its short adult life span and single annual flight. Therefore, the species’ extirpation from a site is likely permanent unless it is within about 1 km (0.62 mi) of a site that generates a sufficient number of emigrants, or is artificially reintroduced to a site (79 FR 63672).

Table 5. Number of historically documented Dakota skipper sites within each State and the number of sites where the species is thought to be present, unknown, possibly extirpated, or extirpated. Proportion of Possibly State Present Unknown Extirpated Total Historical Extirpated Sites Illinois 0.3 - - - 1 1 Iowa 1.0 - - - 3 3 Minnesota 23.6 11 28 18 12 69 North 28.1 45 13 11 13 82 Dakota South Dakota 29.5 14 45 10 17 86 Manitoba 12.7 28 1 2 6 37 Saskatchewan 4.8 14 0 0 0 14 Summary of Extant, Unknown and Extirpated Sites Total Number and Status of Historically Documented 112 87 41 52 292 Sites Proportional Status of the 38 30 14 18 - Historically Occupied Sites *Table updated August 2, 2017

North Dakota

North Dakota historically contained approximately 28 percent of all known historical locations of Dakota skippers rangewide (Table 5), where 71 historical sites were distributed among 18 counties (USFWS 2014, unpubl. geodatabase in 79 FR 63672). The Dakota skipper is currently present at 45 sites in eight North Dakota counties, although a systematic state wide survey has never been conducted. Of the 45 sites where we consider the Dakota skipper to be present, 43 sites have had positive observations of the species since 2012. The one remaining site had positive observations in 2002. The status of the species is unknown at 13 sites; 9 of these sites have not had positive records since the mid- to late 1990s, and the other four sites had positive records between 2001 and 2003. The Dakota skipper is presumed extirpated from 13 sites and 4 counties, primarily due to heavy grazing, land management practices, or other disturbances (e.g., bulldozing at Killdeer Mountain to reduce aspen growth, Royer 1997). The species is possibly extirpated from 11 additional sites and 3 additional counties (79 FR 63672). North-central North Dakota is expected to play an important role in the species’ long-term conservation (79 FR 63672).

In 2014, researchers surveyed twelve sites across North Dakota known to have Dakota skipper populations. Assessments were made of detection rates and habitat quality. Of those sites, ten hosted detectable Dakota Skipper populations. The average encounter rates were notably lower than historical rates at 2.67 per hour, as compared to 9.36 per hour in 2012 and 17.39 per hour in 1996-1997 (Royer et al. 2014). One distinction was that encounter rates were comparable or

31 greater than previous survey years at all but two sites outside of McHenry County. Habitat quality varied between sites.

The USFWS has not yet confirmed whether any of the Dakota skipper populations in North Dakota are secure. The observed decrease in the 2014 encounter rates compared to previous detection efforts, though substantial, are likely attributed to the widespread McHenry County (Towner-Karlsruhe Habitat Complex) flooding in North Dakota immediately preceding the 2014 Dakota skipper flight. However, a number of other factors suggest possibility of a general deterioration in amount and quality of Dakota skipper habitat since the 1990’s (Royer and Royer 2014). Factors noted include frequent or continuous grazing pressure history, lack of proper forbs dominance, leafy spurge incursion, regular spraying, Bakken Oilfield development, and improper haying timeframe (Royer and Royer 2012)

Although only a fraction of all grassland in North Dakota has been surveyed for Dakota skippers, a significant proportion of the un-surveyed area is not expected to be suitable2 for Dakota skipper. The species was never detected at approximately 108 additional locations in North Dakota that were surveyed for the species in the period 1991–2013 (USFWS 2014, unpubl. geodatabase in 79 FR 63672). Many of these sites have been surveyed multiple times in the past (USFWS 2014, unpubl. geodatabase in 79 FR 63672). Townships containing a known Dakota skipper population are considered core use areas for the species.

Surveys for the Dakota skipper are typically conducted only in areas where floristic characteristics are indicative of their presence. New potential sites surveyed are generally focused on prairie habitat that appears suitable for the species and has a good potential of hosting the species, in other words, sites are not randomly selected across the landscape (79 FR 63672). Therefore, researchers have a higher likelihood of detecting the species at these sites than at sites randomly selected across the landscape (79 FR 63672).

Moreover, we assume the data available from the numerous sites that have been surveyed are representative of the areas that have not been surveyed such that the population trends and the nature and extent of stressors are similar across the landscape. Thus, populations in un-surveyed areas are assumed to be represented in their site occupancy status and trends as inferred from the survey effort thus far undertaken (79 FR 63672).

2 Suitable habitat for Dakota skipper is herein defined as habitat that meets the life cycle needs of the species for breeding, feeding, and overwintering. 32

ENVIRONMENTAL BASELINE

Regulations implementing the Endangered Species Act (50 CFR 402.02) (ESA) define the environmental baseline as the past and present impacts of all federal, State, or private actions and other human activities in the Action Area. Also included in the environmental baseline are the anticipated impacts of all proposed federal Projects in the Action Area that have undergone section 7 consultation, and the impacts of State and private actions which are contemporaneous with the consultation in progress.

For the purposes of this analysis, we broadened our discussion of the environmental baseline to include the LMNG in northeast McKenzie County because the Action Area is encompassed primarily by LMNG public grasslands, with a modest amount of intermixed parcels of State and private lands. The larger physiographic context (48,493-ac analysis area) we discuss below was established in order to compare and contrast vegetative communities within and adjacent to the 743-ac Action Area.

We begin our discussion of the environmental baseline with an overview of the condition of the LMNG in general and the status of native prairie within that area, as the requisite habitat for Dakota skipper. We follow with a summary of the stressors that contribute to the status of Dakota skipper in the LMNG and Action Area, and conclude with discussions of the conservation role of, and species’ status within those portions of the Action Area affected by the Project.

Baseline Condition in and near the Action Area

Physical and Biological Features

The Project would be about ¼ to three miles (mi) at its closest point from Lake Sakakawea (referred to as the Lake, or Lake Sakakawea). Along this portion of the Lake shore, topography is rugged and steep, dissected by coulees and wooded draws. As distance from the Lake increases to the south and west, topography levels out and becomes gently rolling hills and flat benches of grassland or agricultural land. The major uses of the land near the Lake are for rangeland and oil and gas development; agricultural land increased in frequency moving south from the Lake.

The construction surface disturbance for the proposed well pads, access roads, and utility corridors are defined as the grading limits. Grading limits determined the impacts to each vegetation community. The grading limits for the proposed Project would be approximately 70.5 ac.

For this biological opinion, we consider this area to encompass the affected population scale of the species as the analysis area wherein, the Action Area is considered a sub area of the affected population of Dakota skippers. The analysis area comprised the entire Antelope MDP of

33 approximately 28,872 ac encompasses an area approximately south/southeast of the Missouri River/Lake Sakakawea system (Figures 4).

McKenzie County is within the Northwestern Great Plains Ecoregion on the Missouri River Breaks, which line the Missouri River/Lake Sakakawea and major tributaries throughout North and South Dakota (Bryce et al. 1998). The physiography consists of upland plateaus and ridgelines dissected by deep drainages and bluffs that drop to the shoreline of Lake Sakakawea. Elevation ranges from normal pool elevation of 1,838 ft mean sea level (MSL) on Lake Sakakawea to 2,383 ft MSL north of the town of Charlson, North Dakota 5.4 mi west of the Project.

The steep slopes have restricted land use to mostly cattle grazing (Bryce et al. 1998), though crop production occurs or has been attempted on any larger, flat areas and is the predominant use past the breaks to the south and west. Oil and gas production, with associated road and pipeline infrastructure, is the other major land use in the region. The majority of the River Breaks surrounding the Action Area are part of the public lands of the LMNG, covering a total of 48,493 ac in the unit in northeast McKenzie County. The area is rural with low human population density. Outdoor recreationists and hunters use the area seasonally.

Though fragmented by human uses, natural habitats persist in the area. The predominant type of vegetation is native mixed grass prairie on the ridgelines and rolling hills, whereas the draws and some northern slopes have scattered to dense woods. Northeast McKenzie County’s biological resources include all living organisms that inhabit the grasslands, woodlands, wetlands, and agricultural lands of the area. These resources include both resident and migratory species of invertebrates, amphibians, reptiles, birds, mammals, and vegetation.

Plant Communities

Within the Action Area, the proposed well pads and access roads would be constructed in a variety of vegetative communities. Table 6 identifies land disturbance by vegetative communities at each proposed well pad. Access roads would be aligned to follow the relatively flat, upland ridgelines, which consist of open, crested wheatgrass (Agropyron cristatum) and western wheatgrass (Pascopyrum smithii) prairie. Steep slopes are most common along the access road to Charolais A and are dominated by creeping juniper (Juniperus horizontalis). Low areas on the landscape are comprised of wooded communities dominated by green ash (Fraxinus pennsylvanica), remnant American elm (Ulmus americana) and rocky mountain juniper (Juniperus scopulorum). The vegetative community impacted by the construction and use of the access road on private land was not surveyed. Thus, no botanical survey results are available within this portion of the Action Area. A detailed breakdown of vegetation communities is available in the BA section 4-2.

Table 6. Proposed disturbance to each plant community type (Courtesy of Wenck Associates, Mandan, ND) Location Vegetation Community Type Acres Agricultural 0.12 Creeping juniper 0.64 Crested wheatgrass 17.79 Charolais A, Little bluestem 0.62 Charolais B, Little bluestem/Creeping juniper 1.34 Charolais CTB, Little bluestem/Needlegrass 0.28 Brangus A Needlegrass 0.04 Needlegrass/Western wheatgrass 8.13 Western wheatgrass 12.64 Woody 0.93 Disturbed 0.36 Little bluestem/Needlegrass 1.83 Harms A Needlegrass/Western Wheatgrass/Little 2.52 bluestem Woody 0.20 Disturbed 0.06 Harms B Western wheatgrass 3.86 Disturbed 8.45 Wolverine 240 Needlegrass 0.08 Disturbed 0.74 Wolverine 278 Western wheatgrass/Needlegrass 4.75 Woody 0.56 TOTAL 70.5

Land Uses in Northeast McKenzie County

Euro-American settlement began in North Dakota in the late 19th century and steadily continued into the early 20th century (Remele 1989). The primary anthropogenic influences across the landscape stemming from this settlement, including the area of McKenzie County, has been the cultivation of the plains grasslands into cropland and the introduction of cattle and other livestock. Farming has resulted in permanent conversion of native prairie, native soils, and other natural habitats, though many types of wildlife can utilize agricultural landscapes for shelter and food sources. Livestock grazing has retained natural habitats and can be managed to mimic native grazers such as bison; however, as is more typical to the area, poorly managed rangeland is evident by altered species composition, introduction or spread of noxious weeds or non-native species, and excessive removal of vegetative cover due to over-grazing.

The other major land use in northeastern McKenzie County is oil and gas development, which in western North Dakota has occurred with varying intensity for the past 100 years. North Dakota

35 recently experienced its third oil boom, which far surpassed the previous booms in magnitude (Bluemle 2001). The North Dakota Department of Mineral Resources estimates that there are at least 2 billion barrels of recoverable oil in the oil-bearing formations underlying North Dakota and that there will be 30-40 remaining years of production, or more if technology improves (Nordeng and Helms 2010, Bohrer et al. 2008). It is thus reasonable to assume that development will continue in the area for the next 30-40 years. It is also reasonable to assume that natural gas and oil gathering and/or transportation systems and disposal sites will be proposed and likely built in the future to facilitate the movement of products to market.

Oil and gas development has contributed to conversion of native grassland and other habitats in order to build well pad surface facilities and associated infrastructure such as roads and pipelines. To maximize access to the resources and because of the way mineral leases are given, surface development is often concentrated “spacing units” along section lines where possible.

Dakota Skipper Habitat Conditions Near the Action Area

The BA analyzes effects on USFS lands within the next 5-10 years. About 10,576 ac, or 35 percent, of the MDP area is managed by the USFS (total MDP analysis area is about 29,872 ac). To understand current development on private lands, publicly available data was used to estimate major disturbances.

For the purpose of this biological opinion, major surface disturbances were defined as roads, oil and gas well pads, and agricultural lands. These disturbances represent the major land uses of the Action Area and are readily quantified using publicly available data. Data for oil and gas wells were obtained from the North Dakota Industrial Commission (NDIC). Since multiple wells may be present on one shared pad, current aerial images were used to determine how many well pads were present in the Action Area (NAIP, 2015). Agricultural disturbance was determined by using aerial images and digitizing the perimeter of agricultural lands. Road centerlines were also digitized, with the assumption that the footprint of gravel roads was about 50 feet wide. Combined, these data show the overall disturbance to native communities and wildlife habitats in the Action Area.

Within the MDP Action Area, there are a total of 63 active well pads supporting 150 oil and gas wells (Table 7). On USFS lands, there are 17 well pads supporting 28 wells. Wells on private land are typically on flat agricultural land along established roads. The USFS lands are typically rugged, dominated by native plant communities. As a result, long roads have been constructed to traverse the rugged topography to access well pads on flat plateaus. The Project would increase the total well pads from 17 to 23 on USFS lands.

The project will also include constructing a portion of the access road and a majority of the Brangus A well pad on private lands. Approximately 0.8 mi of access road will cross private lands following an existing trail through an agricultural field and Dakota skipper dispersal habitat. Additionally, about 7.1 ac of the 8.5 ac Brangus A well pad will also be constructed on private land that was identified as Dakota skipper dispersal habitat.

Past and current impacts on wildlife and wildlife habitat within the Project area have primarily been a result of oil and gas development, roads, and past cultivation of native grassland (Table 7). Oil and gas well pads (average size of 5.5. ac) total about 407 ac, the majority occurring on private lands. Oil surface development potentially converts and/or degrades native habitat, and while being constructed or in use, it can temporarily displace wildlife because of noise and human activity. Roads have contributed about 200 ac of direct disturbance and have also contributed to habitat fragmentation. The largest disturbance to native communities is agricultural lands, which total 9,880 ac of disturbance. Taken together, oil and gas infrastructure, roads, and agricultural land have disturbed about 35percent of the 29,872 ac Action Area.

Table 7. Major Disturbance Estimates within the MDP Action Area Major Development Disturbed Area (Acres) Total Type USFS Private Oil and Gas 94 314 407 Infrastructure Roads 53 200. 253 Agricultural Lands 1,612 8,269 9,881 Total 1,759 8,783 10,541

Stressors affecting the grassland ecosystems and associated biota of 29,872-ac MDP in the northeast McKenzie County area we reviewed is dominated by habitat loss and fragmentation, habitat degradation by grazing, invasion of non-native plant species, and fire suppression/woody plant expansion. Dakota skippers are sensitive to these stressors (79 FR 63672).

Status of the Species in the Action Area

The Dakota skipper has not been documented in or immediately adjacent to the Action Area; however, no Project specific surveys have been conducted for this species. The Action Area is within the range of the species in North Dakota.

The best available information for the presence of the Dakota skipper comes from the Species Occupancy section of the Federal Register (79 FR 63672) documenting species presence, and the most recent species surveys by Royer et al. (2015) and an unpublished data from the USFWS (USFWS 2015b). Currently, the species is considered present in 16 sites in five North Dakota counties. Of these, 15 sites had positive observations of the species in 2012 (79 FR 63672). The nearest of these sites to the Action Area are two sites in northern McKenzie County – one site is approximately 3 mi west of the Project area (designated critical habitat Unit 11) and the other is approximately 5 mi south the Project area.

The species has low detection rates at additional surveys locations across North Dakota in the period 1991-2013, and therefore there is a high likelihood that significant numbers of undiscovered Dakota skipper populations occur in North Dakota (79 FR 63672). In addition, the Action Area contains intact native grassland prairie that may provide suitable habitat for the

37 species. Approximately 5274.1 ac of potential habitat are present within the Action Area (Table 8).

Botanical Survey of the Action Area

A botanical inventory of vegetation was conducted on 294.62 ac (0.98 percent) within the 29,872 ac Action Area. Approximately 17 percent (5,274.1 ac) of the Action Area is considered as potential habitat according the habitat model (Table 8, BA section 2.3.1). Grassland plant communities that were native prairie but not necessarily potential habitat (i.e., flat, western wheatgrass prairie) were delineated on hard copy field maps; if they appeared to have adequate forb diversity or abundance and could potentially serve as dispersal habitat. Other grassland communities of unlikely habitat (such as heavily invaded swales) were documented.

Table 8. Dakota skipper Habitat Model Results for the Action Area Habitat Classification Total Area (Acres) Percent Potential Habitat 5,274.1 17.30% Poor 62.7 0.21% Unclassified (Not Habitat) 25,150.8 82.50% Total Area 30,487.6 100.00% (Courtesy of Wenck Associates, Mandan, ND)

Number and Distribution of Local Populations

Four Dakota skipper populations occur in core use Dakota skipper habitat within 10 mi of the Project area (Figure 5). Two populations occur within designated critical habitat initially detected in 2002 and as recently as 2014 (Royer 2014). Royer (2014) refers to the populations as the Pasture 12 East Site and the Pasture 12 West Site. Both populations reside in areas designation as critical habitat for the Dakota skipper (80 FR 59247[October 1, 2015]). The Pasture 12 West Site corresponds to proposed Unit 12 (234 ac) and the Pasture 12 East Site corresponds to proposed Unit 11 (633 ac) in the final rule (80 FR 59247[October 1, 2015]). Several adults were encountered at both sites, ranging from two individuals per hour at the Unit 11/Pasture 12 West Site and four to six individuals per hour at the Unit 12/Pasture 12 East Site (Royer 2014). All observed individuals were male. The third and fourth Dakota skipper populations were detected in 2016 and are located approximately 5 mi south and 8 mi north of the Project area in McKenzie County.

Dakota skipper habitat within the two critical habitat units was relatively unchanged compared with previous surveys in 2002 (Royer 2014). Both sites are under very light occasional grazing and continue to exhibit all of the requisite dry-mesic nectar species to support Dakota skipper. While habitat size within the sites is relatively small, measuring approximately 5-10 ac each, the populations appear to be relatively stable (Royer 2014).

Figure 5. Core Use Dakota Skipper Sites within 10 mi of the Proposed Project

Dakota Skipper Presence in the Action Area

Habitat is abundant within the Action Area, with over 5,274 ac of potentially suitable habitat present according to the Dakota skipper modeling (BA, p. 5-13). Dakota skipper are present within Designated Critical Habitat Unit 11, which is within the boundaries of the Action Area. Project specific occurrence surveys have not been completed; therefore occupancy is assumed in the Action Area where vegetation meets all three primary constituents elements of Dakota skipper habitat (Table 9).

The results of the spatial analysis (Table 8) demonstrate there is sufficient habitat in the unsurveyed portions of the Action Area to support Dakota skippers. No major barriers to movement were apparent within the dispersal distance capability of the species (0.61 mi). Thus, we conclude there is a functional movement corridor for the species to disperse within the Action Area. Although threats stemming from land use practices and land use changes resulting in habitat conversion and/or modification are present within and near the Action Area, those threats have not occurred to such a scale and extent that precludes the species presence.

Table 9. Impacts to Dakota skipper habitat as a result of the proposed Project (Courtesy of Wenck Associates, Mandan, ND) Continental Slawson Proposed Project Habitat Classification Total Charolais Harms Wolverine Assumed Occupied1 3.25 0.00 0.00 3.25 Dispersal2 29.11 3.86 4.75 37.72 Non-suitable habitat3 10.47 4.97 9.83 25.27 TOTAL 66.24 1Assumed occupied habitat is defined as native grassland that meets all three primary constituent elements of Dakota skipper habitat.2Dispersal habitat is defined as native grassland that lacks at least one primary constituent element of Dakota skipper habitat.3Non-suitable habitat includes vegetation communities that lack all three primary constituent elements of Dakota skipper habitat.

EFFECTS OF THE ACTION

This section addresses the direct and indirect effects of the Project. The regulations implementing the ESA define “effects of the action” as “the direct and indirect effects of an action on the species or critical habitat, together with the effects of other activities that are interrelated or interdependent with that action, that will be added to the environmental baseline” (50 CFR § 402.02).

Direct effects are the immediate effects of a Project on the species or its habitat. Direct effects are those effects that result from the Project and include the effects of interrelated and interdependent activities that would not occur but for the proposed action. Indirect effects are those effects expected to occur later in time and are caused by or will flow from the federal action, but are still reasonably certain to occur.

In this step, we identify the potential stressors to the listed resource (Dakota skipper) produced by the proposed development of 49 horizontal oil and gas wells and associated facilities on three shared well pads in order to identify potential or known co-occurrence. All stressors identified as potentially affecting the listed resources (Dakota skipper) are described in the following section, in terms of the timing, duration, frequency, magnitude, and location. We also attempt to describe and characterize the expected number, gender, age or life stage, and populations or subpopulations of the listed species we anticipate exposure to the stressors.

Exposure-Response Framework

Project-caused stressors, if of sufficient magnitude, duration, or frequency, can significantly disrupt the normal behavior or habitat use of a species or can significantly impair essential (breeding, feeding, and sheltering) behaviors by actually killing or injuring individuals. Here we attempt to assess whether or not the Dakota skippers expected to occur in the Action Area are likely to be exposed to Project-induced stressors and if so, to describe the eventual anticipated consequence of this exposure – first to individuals and subsequently to the population those individuals represent. Any population-level impacts (i.e., demographic consequences) will then be addressed in the context of the reproduction, survival, or distribution of the species.

If exposure to a given stressor is extremely unlikely, we would conclude the effect is discountable. Otherwise we assume individual Dakota skippers will be exposed to the potential stressor(s) and we evaluate the consequence of the exposure.

The consequence of a stressor is evaluated in terms of whether or not the effect is significant to one or more listed individuals. We define significant effects as any measurable or detectable effect on the listed resource (Dakota skipper) and they often relate to the size of the impact. If we determine, based upon our best judgment, that we cannot meaningfully measure, detect, or evaluate the effect of a stressor, we conclude the effect is insignificant. If we conclude any stressors are likely to have effects that are either discountable or insignificant, we then we will have reached an endpoint in our analysis. However, if we are unable to reach either of these

41 conclusions for any listed resource, we then assume effects to be significant and will discuss the anticipated implications this could have on the survival and recovery of the Dakota skipper.

Evaluation of Potential Stressors

Assessing the risk and vulnerability of Dakota skippers in the Action Area to stressors from the proposed action varies during the species’ life cycle. The within and between year variability of weather conditions also influences the species’ exposure risk as weather affects habitat conditions. Accordingly, habitat conditions then affect the foraging, reproduction, and dispersal of the species.

Potential Stressors

From the information presented in previous sections, Dakota skippers within the Action Area may encounter several stressors from the Project. However, the likelihood of exposure varies considerably for each activity and depends upon the co-occurrence of both the stressor and an individual across space and time.

Project stressors include a number of auditory, visual, and physical components caused by moving construction equipment and vehicle traffic throughout the life of the wells (acoustic, strike risk, anthropogenic presence). Also considered are activities that modify or remove native prairie that can lead to habitat loss, fragmentation, and/or degradation; production-associated spills and release of petroleum products, fuels, and produced saltwater (contaminants); and increased exposure to predators (refer to Table 1 for a summary of specific activities that cause these stressors).

Acoustic

The Project is expected to expose Dakota skippers to above-ambient continuous and impulsive sound pressures of variable intensity and timing, which may affect the Dakota skipper. Above- ambient sound levels are expected during all phases of development from the use of equipment and vehicles, including a range of small to heavy construction equipment, light-duty vehicles, ATVs, drill rigs, and mechanical operations of on-site equipment and facilities throughout the life of the wells (Table 1). Above-ambient, high intensity sound levels are anticipated during construction and drilling phases and would include both continuous and impulsive sound sources. Industrial sound would also occur throughout the operation phase as well, but at lower intensity.

Dana (2015, pers. comm.) noted that some butterfly species, such as Satyrs, have been observed to respond to noise and many insect species seem to respond to vibrations. However, no literature was located concerning Dakota skipper response to acoustic stressors.

Dakota skippers likely do not have any auditory capability and several experts assert that sound is highly unlikely to impact the species or cause a response (Dana 2015, pers. comm.; Royer 2015, pers. comm.; Westwood 2015, pers. comm.). While the species is likely capable of

42 sensing vibrations from other flying insects for the purposes of mate seeking (Dana 2015, pers. comm.), we found no evidence suggesting that acoustics from the construction and operation of the Project would elicit a disruptive (positive or negative) behavioral response or injurious physiological impairment to adults or larvae of the species.

Thus, the likelihood of detecting a measurable biological response by individual skippers from high intensity industrial sound from the Project is expected to be extremely low. Therefore, direct and indirect effects to Dakota skippers from the exposure to above ambient industrial sound sources are considered discountable.

Anthropogenic Presence

The Project would involve the physical presence of humans, development activities, and moving vehicles and equipment on the land surface, which may be visually or physically disruptive to Dakota skipper. Human presence and activity would occur during each activity at the site during all phases of development (Table 1).

Human presence is expected to have no effect to the egg or larval stages, but adult Dakota skippers could be consistently disturbed during the adult flight period from June 15 to July 31. The disturbance could cause individuals to move from resting/nectaring locations or alter the flight paths of adults. Continual disturbance can lead to a “stress” response such as lower use of suitable habitat or increased energetic demands which in vertebrate taxa has been shown to decrease the overall fitness of individuals (Buchanan 2000). Stress continuing over longer periods (i.e. days to weeks) may result in deleterious chronic effects like increased susceptibility to fatigue and disease (Buchanan 2000). Exposure to disturbance would be limited to the flight period.

During the pre-construction phase, there would be low intensity human presence and activity at each site as up to five surveyors and biologists complete staking and surveying on foot and by ATV over the course of a few days. Though low in intensity, this activity has the potential to disrupt adult skippers as they move about naturally within and between their habitat patches on the sites. However, due to the relatively low magnitude/intensity, duration, and frequency of the disruption, human presence is not anticipated to cause any biologically measurable or meaningful effects.

The development phases of the highest magnitude and intensity of human presence would be during drilling and completion phases of each well, during which crews of 15-40 people with associated vehicles and equipment would be working on a 24-hr basis for a period of 30-45 days. However, these activities would occur within the constructed and disturbed area of the well pads and access roads. Once each site is constructed, Dakota skipper individuals potentially remaining in the Action Area in adjacent habitat are unlikely to be affected in their daily movements by nearby human activity, regardless of the intensity. It is believed adult Dakota skippers would not seek out areas of non-suitable habitat (i.e., disturbed areas), would be highly unlikely to be present in areas of non-suitable habitat, and in fact would avoid areas of

43 disturbance (Dana, Royer, and Westwood, 2015, pers. comm.), thus they would not be resting/nectaring in areas that had been disturbed.

However, adult skippers can traverse areas of disturbance (i.e., disturbed access road corridor) (Skadsen 2001, pers. comm., cited in 79 FR 63672) and could potentially be driven by wind (or other natural processes) across areas of non-suitable habitat. In these instances during Project activities, adults could be exposed to human activity, causing a response of changing their flight path. Changes in flight paths are expected but the measurability of such an event are not feasible nor are they considered biologically meaningful at the individual scale. The likelihood of detecting a measurable effect to individual skippers and the population of skippers caused from these potential occurrences is expected to be extremely low. Therefore, direct and indirect effects to Dakota skippers from exposure to anthropogenic presence are considered discountable.

Physical Injury

The Project will involve activities that could result in physical injury to Dakota skippers. Physical injuries could include damage to wing or body, and presumably will lead to death. The likelihood of injuries occurs during all the development phases from the use of construction equipment and vehicles, light-duty vehicles, ATVs, and tanker trucks in and through areas occupied by Dakota skippers. Thus, physical injuries are expected to coincide with all life stages of the Dakota skipper (Table 1).

The mechanism causing the injury to the Dakota skipper is moving vehicles through habitat where eggs, larvae and pupae are developing or during the adult flight stage during the operational and decommissioning phases (Tables 10 and 11). Eggs and larvae in occupied habitat will be removed and crushed by equipment when vegetation removal and site contouring will occur. An increase in traffic needed for construction, operation, and maintenance will continue in the Action Area for the life of the Project. Thus, adults could be struck while in flight. Potential injury to Dakota skippers during the construction phase of the Project will be avoided by restricting construction and vehicles during the adult flight stage (June 10 through July 25, BA p. 5-14). Additionally NFSR are designed with a 15 mph speed limit. Speed limits on private roads within the Action Area are not included in with the 15 mph speed limit.

Table 10. Summary of Impacts to Dakota Skipper Habitat as a result of the Proposed Project in Acres Continental Slawson Proposed Habitat Classification Project Total Charolais Harms Wolverine Assumed Occupied1 3.25 0.00 0.00 3.25 Dispersal2 29.11 3.86 4.75 37.72 Non-suitable habitat3 10.47 4.97 9.83 25.27 TOTAL 66.24

Table 11. Proposed disturbance to each plant community type Location Vegetation Community Type Acres Agricultural 0.12 Creeping juniper 0.64 Crested wheatgrass 17.79 Charolais A, Little bluestem 0.62 Charolais B, Little bluestem/Creeping juniper 1.34 Charolais CTB, Little bluestem/Needlegrass 0.28 Brangus A Needlegrass 0.04 Needlegrass/Western wheatgrass 8.13 Western wheatgrass 12.64 Woody 0.93 Disturbed 0.36 Little bluestem/Needlegrass 1.83 Harms A Needlegrass/Western Wheatgrass/Little 2.52 bluestem Woody 0.20 Disturbed 0.06 Harms B Western wheatgrass 3.86 Disturbed 8.45 Wolverine 240 Needlegrass 0.08 Disturbed 0.74 Wolverine 278 Western wheatgrass/Needlegrass 4.75 Woody 0.56 TOTAL 70.50

The development phases of the Project that are expected to have the highest magnitude and intensity of physical injury would be during surface facility construction of each well and associated access roads, during which heavy equipment such as dozers and scrapers will be used. Clearing and grubbing will occur once per well pad and its associated access.

Cut and fill activities would occur once per well pad and associated access road can be done throughout the year, with the exception of the Dakota skipper flight period, based on weather and surface conditions. Physical injuries could occur throughout the Project footprint. Depending when the habitat removal occurs, the skipper could be exposed to eggs and larvae being crushed and removed.

Equipment refueling is not anticipated to expose the species to physical injury because refueling would be limited to the surfaced area of the well pad only. The Project includes a measure to refuel in specific areas where spill prevention measures are in place and implemented.

Once each well pad is constructed, potential Dakota skipper individuals remaining in the Action Area in adjacent habitat are unlikely to be affected in their daily movements by nearby human activity (equipment use), no matter the intensity. Adult Dakota skippers are not expected to seek out areas of unsuitable habitat (i.e., disturbed areas) during the flight stage because the species generally avoids areas of disturbance (Dana, Royer, and Westwood, 2015, pers. comm.).

However, adult skippers are expected to traverse areas of disturbance (i.e., disturbed access road corridor) (Skadsen 2001, pers. comm., cited in 79 FR 63672) and could potentially be pushed by high winds (or other natural processes) across areas of non-suitable habitat. In these instances during Project operation, adults could be exposed to potential physical injury or death due to being impacted by vehicles or other mechanized equipment.

Areas of assumed occupied habitat surrounding the proposed Harms and Wolverine Facilities and the proposed access road for the Charolais Facilities and adjacent prairie habitat surrounding the proposed Project are areas where adult Dakota skippers could potentially be struck by moving vehicles if they should cross the existing roadway or well pads surface. We expect traversing flights over the existing access roads to occasionally occur based on the juxtaposition of suitable habitat for the species identified during field vegetation surveys. Dakota skipper crossing would likely lead to exposure to vehicles and equipment, and thus injury/mortality. Adherence to the 15 mph speed limit for vehicles using NFSR during the operation of the oil wells is expected to significantly reduce the risk of collision with Dakota skippers that may traverse over roadways (as well as the effects of road dust during the flight period discussed later). However, the consequences of Dakota skippers occasionally encountering vehicles while traversing roads and well pads during operations may lead to the death or injury of individuals despite the low speed limit.

The remainder of the activities from rig mat installation, completion, well clean-out, operations, and decommissioning will be confined to constructed features such as well pads, roads, and support facilities. Thus, no additional direct exposure to injurious stressors are expected for Dakota skippers.

In summary, we anticipate that skippers will be exposed to physical injury throughout the Project footprint. We expect all Dakota skippers at any life stage that occupy up to 3.25 ac of assumed occupied suitable habitat (see Table 10) will be destroyed and permanently removed from the population. Other areas of potentially occupied habitat could occur throughout the Action Area (BA, Figures 6 and 7) and Dakota skippers in these areas are susceptible to being physically injured or killed if construction equipment, vehicles, or other activities venture beyond the Project footprint into native grassland habitat occupied by the species. Physical injury or death are expected specifically in the following sites:  on multiple areas along the access road for the proposed Charoalis facilities (BA, Figure 6);  the northeastern and northwestern corner of the Wolverine 278 site, and;  the western, northern, and eastern edges of the Wolverine 241 site (BA, Figure 7).

We infer these locations are areas of higher risk for adult Dakota skippers during construction activities where there could be physical injury along the perimeter edges where grading extents will overlap assumed occupied habitat (BA, Figures 6 and 7). There is no evidence to lead us to believe that the species will exhibit avoidance of these areas during construction. In addition, approximately 3.2 ac of assumed occupied Dakota skipper habitat will be removed through surface facility construction phase of the Project. Thus, the expected injurious effects of the construction period are considered significant to the species.

Habitat Loss and Fragmentation

Energy development (oil, gas, and wind energy) and associated roads and facilities often results in the loss or fragmentation of grassland prairie habitat (Reuber 2011, pers. comm. in 79 FR 63672) and this Project is expected to result in the permanent (direct) loss of Dakota skipper habitat. The total expected loss of native grasslands for Project is approximately 41.91 ac.

However, not all of this native grassland within the Project footprint is considered suitable for the species (see Table 13) and therefore not all would be inhabited by the species. Direct habitat loss is the single, most significant, threat to Dakota skippers (79 FR 63672). This threat is highly detrimental to their survival because Dakota skippers are obligate residents of undisturbed (remnant, untilled) high quality prairie grasslands. In other words, the USFWS has no evidence the species has an ability to survive in any other type of grassland habitat.

Habitat fragmentation is linked to habitat loss and can have significant negative effects to Dakota skipper. When the fragmentation occurs at a scale where it becomes a barrier to dispersal, (meta) population sustainability is lost. If population isolation occurs, the population becomes highly vulnerable (due to low resilience) to stochastic events and extirpation.

Barriers can trigger a lethal sequence that begins when a sub-population becomes fragmented from other population clusters that result in isolatation. With no potential for immigration, populations become more susceptible to stochastic events over time that can lead to a net reduction in Dakota skipper abundance, population stability from low recruitment. When repeated over time and space, the overall area of occupancy within the species’ range declines. The Dakota skipper populations may become isolated at a site unless it is within approximately 0.62 mi of another occupied site that generates a sufficient number of emigrants 79 FR 63672:63677 [October 23, 2014].

The loss of an estimated 41.91 ac of suitable Dakota skipper represents approximately 0.8 percent (41.91 ac / 5,274 ac; Table 8) of the suitable habitat within the Action Area. The size of some well pads will exceed 4 ac of clearing, which on a local scale is expected to inhibit the species’movement during the flight stage in the immediate vicinity of the well pads (Figures 2 and 3). However, given the dispersed locations of the six new pads and expansion of the three existing well pads, we do not expect the metapopulation to become fragmented to such an extent that the habitat loss would function as a barrier to dispersal.

Habitat Degradation

The inherent benefits of the native mixed grassland habitat adjacent to the Project footprint is expected to be incrementally reduced by the Project. For prairie obligate species like the Dakota skipper, energy development can reduce the capability of the adjacent mixed grassland habitat to support the critical life history processes (breeding, feeding, and sheltering) of the species due to direct and indirect effects. The overall effect of degredation is expected from the combined effects of trampling vegetation (from equipment and foot traffic), invasive plant encroachment, and microclimate modification associated with the Project.

Vegetation Trampling: This effect is expected to occur predominantly during the pre- construction phase of the Project development (Table 1). A significant amount of foot traffic and off-road motorized vehicle use is required to address the planning and siting needs of Project. While not continuous, the pulses of activities are expected to modify the plant communities in those locations where activities have been concentrated enough to stunt growth, uproot plants, and create localized soil disturbance. Where these activities occur outside of the Project footprint, the plant community would be expected to recovery if left undisturbed.

Noxious/Invasive Plant Encroachment: Noxious weeds and invasive species can out compete native forbs that are food sources for the Dakota skipper (Royer and Marrone 1992). Following construction, decreases in the native plant species associated with the Dakota skipper are expected to reduce the amount of available suitable habitat through loss of forage sources, increased growth of cool season grasses, and decreased forb density (Cochrane and Delphey 2002). In a recent study on the response of invasive plant species to the construction and operation of well pads and roads in the Williston Basin (the northern Great Plains of North Dakota and Montana), non-native species richness and forb cover were significantly greater adjacent to well pads and decreased with distance to values similar to control sites (Preston 2015, p. 7). The results indicate that total non-native species richness (non-native forb and graminoid cover) was significantly higher out to a distance 80 m from the younger well pads (5 years post construction). A similar trend occurred for non-native forb cover in older sites (10 years post construction) out to a distance of 40 m (Preston 2015, p.13). A similar study was conducted by Texas A&M Institute of Renewable Natural Resources (IRNR). Although the results have not been published in a peer review journal, non-native grass species were greater within 63 m of well pads than control sites (Cobb 2016).

We expect that Project construction activities will likely provide a vector for invasive plant species introduction into native grassland communities. The result is expected to cause measurable changes within 5 years to the vegetative structure, species composition, and overall ground cover out to a distance of 80 m from Project facilities. We expect the native plant community (40m to 80m from the well pad and road) to somewhat recover after a 10 yr period (Preston 2015, p. 13). However, Dakota skipper reproductive habitat is likely to remain degraded in the 0 to 40 m zone from well pads and roads due to the continual exposure of Project-induced operational and maintenance stressors Ground verified vegetation surveys were not conducted to a distance of 40m surrounding Project disturbance, therefore, the USFWS has estimated through GIS spatial analysis methods that up to approximately 2.75 ac of dispersal

Dakota skipper habitat is within 40 m of the Project footprint. Due to limitations of spatial analysis we are unable to confidently identify assumed occupied habitat without field verification.

We recognize that invasive species likely currently occur in the Action Area. However, we expect h the number and density of invasive species to significantly increase following the construction and continuing through many years of the operational period. Dust, as a contributing factor, can reduce herbicide effectiveness which will contribute to the spread of invasive plants Greening 2011(p. 33). It is therefore reasonable to infer these changes are likely to affect the relatively narrow range of tolerance for microclimatic conditions near the soil surface (McCabe 1981) where Dakota skippers reside during almost their entire life span.

We found no way to assess the magnitude of change in either the microclimate and overall vegetative composition that would likely occur in the 40 m buffer encompassing the well pad construction, making it even more difficult to predict how the species may respond to such vegetative changes later in time. Nonetheless, it is reasonable to infer that the overall habitat conditions required by the species are likely to be more unfavorable over time due to the anticipated vegetative change from invasive plants.

This leads the USFWS to conclude that the overall carrying capacity of suitable habitat adjacent to the Project will incrementally decrease, thus lowering the reproductive capability or individual fitness of Dakota skippers inhabiting these areas. These habitat changes are expected to be permanent in the absence of weed control and habitat enhancement measures. Weed control is a component of the Project and thus is expected to ameliorate the threat of noxious weeds on USFS lands. Noxious weed control is not included as an explicit component of the inter-related and inter-dependent activities associated with the access road construction and use on private lands due to a lack of enforcement capability by the USFS on private lands. Thus we expect invasive plants and/or noxious weeds to encroach from project related ground disturbance on the adjacent native grassland communities as well as invasive plant encroachment from the adjacent grasslands to reclaimed areas, resulting in the deterioration of habitat suitability for the Dakota skipper.

Microclimate Modification: Here we will address the occurrence of dust, artificial lights, and flaring, all of which are expected to occur in habitat occupied by the species. Airborne dust and the use of artificial lighting are expected to occur during construction and from road use during the operational phase. Flaring is expected during the 20-30 year operational period.

Airborne dust that settles upon vegetation reduces photosynthesis, interferes with stomatal function (the exchange rate or efficacy of carbon dioxide and oxygen), increases incidence of plant pests and disease (Greenling 2011, p.33), increases PH (>10.0) and leaf surface temperature, and reduces leaf surface area thus lowering primary production (Sharifi et al. 1997). Further-more, dust residue on plants reduces herbicide effectiveness (McCrae 1984, p. 13). In addition to having a deleterious effect on plant growth and vegetative structure, dust in high concentrations may adversely affect Dakota skipper larval development (R. Dana pers. comm. 2015, R. Royer pers. comm. 2015).

The USFWS concluded there is a reasonable likelihood that dust can accumulate in sufficient quantities such that dust would be expected to interfere with plant growth and fitness; increase PH associated with the dust; increase leaf surface temperatures; alter the edaphic conditions and microclimate (temperature and humidity); and deposit a layers of dust upon developing eggs, larve, and pupae. These reproductive phases of the species have narrow tolerances for temperature and humidity at or near the soil surface (between soil surface and 2 cm depth: mean soil surface summer temperatures from 17.8 to 20.5 °C (64.0 to 68.9 °F), mean near soil surface dew point ranging from 13.9 to 16.8 °C (57.0 to 62.2 °F), and mean near soil surface relative humidity between 72.5 and 85.1 percent). Of particular concern are the potentially lethal consequences to eggs, pupae, larvae, and plants from the increased PH associated with dust settling in areas important for Dakota skipper life cycle support.

The distance which windblown dust can travel depends upon the particulate size and the magnitude of the wind force. Although we were unable to find a means to estimate the movement of dust, Gedafa (2013) documented the movement of 2.0 to 2.5 grams of road dust up to 480 ft from the road centerline during the summer and fall months. Most troubling, Gedafa (2013) recorded high pH values (10.2 – 10.4) but it is unclear whether this PH level is lethal to Dakota skippers. We assume dust is deposited at a rate that has an inverse relationship to the distance from the dust source where the higher quantities of dust are located nearer the source. Thus, Dakota skippers that inhabit areas nearer to dust sources are likely at greater risk. Based upon the prevailing wind direction in the Action Area, we expect dust would be predominantly distributed in easterly and southeasterly directions.

Multiple studies have attempted to quantify the distance of significant dusting impacts from gravel roads. One study in Kenya (Jones 1984, p. 4) concluded nearly all of the dust fell within 7 m of the road edge. These results contradict the findings of Handy et al. 1975 and Hoover 1981, which found significant levels of dust from 50 to 300 m from the road center. A similar study conducted along the Dalton Highway in Alaska found changes to groundcover until beyond 70 m from the road (Walker 1987). Based on this research, the 15 mph speed limit that is implemented for NFSR, and a commitment to apply dust abatement chemicals within the Project area, we estimate the impacts due solely to dust effects to occur up to 40 m from the road edge which is expected to impact approximately 15.14 ac of Dakota skipper assumed occupied habitat in and immediately adjacent to the Project area (based on assumed occupied habitat identified during field vegetation surveys within 40m of direct disturbance). Additional dusting impacts within the Action Area will occur due to increased construction and operational related traffic along existing gravel County Road 6 and 44th Street NW. Due to the lack of vegetation surveys along these roads to identify occupied or year round habitat and the inability to set speed limits on existing county roads the severity and extent of the dusting impact is unknown.

The expected presence of artificial night lighting and flaring for the Project were also considered for effects to the species. We hypothesized that artificial lighting and/or flaring could attract Dakota skippers or disrupt/alter their reproductive behavior during the flight period. After consulting dakota skipper researchers (R. Dana and R. Royer pers. comm. 2015), there was

50 agreement that neither would have a measurable effect to the species. The USFWS therefore elected to dismiss the risk of flaring and night lighting from further consideration. Contaminants

The Project activities are associated with a number of chemical contaminants involved in different several phases including: well pumping associated with operations, equipment refueling associated with other activities, and the control of noxious weeds (Table 1). Contaminants pose the greatest threat of exposure to Dakota skipper during the construction phase. The potential for a fluids release associated with excavators or other construction equipment is greatest during the construction phase as equipment is most mobile within the Project area and oil spills or frack- outs can occur. Equipment refueling will be required on site on a daily basis during several stages of well development, including surface facility construction, well drilling and completion, and decommissioning and reclamation. Refueling of vehicles will take place on surfaced area of well pads, reducing the potential to impact the species post-construction.

Additionally, an oil or brine spill during operations would pose a contaminant threat to Dakota skipper. A spill would have to be of a magnitude to overflow the well pad berm and impact native habitat but a frack-out could lead to the uncontrolled spraying oil during the completion phase (up to several hundred feet downwind of the event). Contamination through an oil or brine release may impact the species in two ways: direct injury and/or mortality of individuals and habitat degradation. An oil or brine release would have the potential to cause injury to adults, larvae, or eggs; to prevent the successful mating of adults if nectaring habitat was destroyed during the flight period; and cause death to adults, larvae, or eggs.

A spill of large enough magnitude to overflow the well pad berm would have the potential to impact surrounding native habitat. Both habitat destruction and degradation would be a possible impact of a release event; through the reduction of available habitat on the landscape, fragmentation of existing contiguous habitat, and the destruction of small remnant fragments altogether. While possible, a spill event of sufficient magnitude to result in direct exposure are historically rare events (based upon reporting frequency). Thus, a significant adverse effect from chemical contamination is not expected.

Exposure to toxic chemicals that would be expected to lead to injury or death is possible. Weed and invasive species control activities will be done regularly throughout the production life of the wells on disturbed areas and where invasive plants have become established in the adjacent native grasslands. Areas identified with invasive/noxious weeds will be spot treated; broadcast spraying would be prohibited. Herbicide application will be suspended between June 10 and July 25 each year to avoid the Dakota skipper flight period. Because Dakota skippers are not generally associated with vegetation infused with a dominance of invasive/noxious plants, exposure to herbicides is not expected.

Predation

McCabe (1981), noted three kinds of predators to Dakota skippers, including Ambush bugs (Hemiptera: Phymata sp.), flower spiders (Aranaea: Misumena spp.), and orb weavers (various

Araneldae). Flower spiders and ambush bugs are effective predators of nectar-feeding insects (McCabe 1981) and may cause mortality to some individuals, but it is difficult to quantify the population-level impacts of predators to the Dakota skipper. Dana documented predation on adult skippers by robber flies (Asilidae), which are common in upland prairie habitats, and noted the incidence of wing damage indicative of an unsuccessful attack by a bird or similar predator (Dana 1991; Dana 2013, pers. comm. cited in 79 FR 63672).

Several incidences of predation by crab spiders and robber flies on the Dakota skipper has been documented in Canada, although it is not thought to be a common occurrence (Westwood 2013, pers. comm. cited in 79 FR 63672). Robber flies prey upon a variety of insects and possess the capability to inflict significant losses on prey populations, particularly in semi-arid regions like North Dakota where the species is abundant (Joern and Rudd 1982).

McCabe (1981) failed to observe bird or dragonfly predation; however, these events are difficult to observe (Dana 2013, pers. comm. in 79 FR 63672). Orb weaver spiders appear to be successful predators of “old, worn individuals” (McCabe 1981), but bird and other animal predation on young and old adults likely occurs when the butterflies are roosting or torpid and unable to escape (Dana 1991).

Predation is an important part of population dynamics of normal populations of insects. Where and when predation becomes a concern for Dakota skipper would be if predation was amplified in some manner by the Project causing an increase in the number and diversity of Dakota skipper predators. Many insects are effective colonizers due to a high dispersal capability coupled with an opportunistic life history strategy. However, predation of Dakota skippers in particular has not been studied in detail and is difficult to observe and we were unable to verify an amplified effect of predation was likely. While theoretically possible, we encountered no scientific evidence supporting or refuting predation as a potential stressor induced by the Project. We therefore conclude the effects of the Project on the predation rates of Dakota skippers are either insignificant or discountable.

Summary of Adverse Effects to the Dakota Skipper

Given the obligatory, life cycle dependency of the species on high quality native mixed grassland communities, Dakota skippers are expected to experience lethal and sub-lethal effects from implementation of the Project as currently proposed (Table 12). Physical impacts will be avoided during construction phase by avoiding construction during the adult Dakota skipper flight stage (June 10 to July 25) and 15 mph vehicle speed limits on the NSFR’s. However, we anticipate the essential behaviors of breeding, feeding, and sheltering of the species will be impaired due to the Project and it is reasonable to anticipate the abundance of the species will be reduced in the Action Area (due to the effects of direct mortality to adults, larvae, and/or eggs).

Table 12 Summary of Project stressors anticipated to adversely affect Dakota skippers within the action area. Potential Stressors Adverse effects Acoustic No Anthropogenic Presence No Physical Injury/Impact Yes Habitat Loss Yes Habitat Fragmentation No Habitat Degradation Vegetation Trampling No Noxious/Invasive Plant Encroachment Yes Microclimate Modification -Dust Accumulation Yes -Artificial Night Lighting No -Temperature Increase from Flares No Chemical Contaminants No Predation No

A contributing indirect (sub-lethal) effect of these activities is the expected incremental reduction in the carrying capacity of the species’ habitat in the Action Area through the destruction, and degradation of grasslands that currently support the life cycle needs of the species. Potentially lethal and/or sub-lethal effects are expected from the degrading effects of high (> 10.0) PH associated with road dust.

We also expect decreased native plant survival and fitness from road dust impacts on adjacent habitat (assumed 40 m from the Project footprint). Furthermore, sub-lethal effects are expected the anticipated spread of invasive plant species associated with the construction and use of the access road on private land (assumed 40 m from the Project footprint). The indirect, lethal and sub-lethal effects thus create the likelihood of injury by significantly disrupting normal breeding, feeding, sheltering, and metomorphosis (life cycle) behavior patterns. The lethal effects of habitat destruction and high PH levels from dust, as well as the sub-lethal effects from habitat degradation could lead to long term, local area population-level effects and the significance of these impacts, as well as other potential stressors, on the Dakota skipper population will be discussed in the following sections.

CUMULATIVE EFFECTS

Cumulative effects include the effects of future State, tribal, local or private actions that are reasonably certain to occur in the Action Area considered in this biological opinion. Future Federal actions that are unrelated to the Project are not considered in this section because they require separate consultation pursuant to section 7 of the ESA. We are aware of no actions meeting the definition of cumulative effects within the Action Area. Therefore, no additional significant adverse effects to listed species are expected.

INTEGRATION AND SYNTHESIS

Regulations direct the USFWS to evaluate whether a Project is likely to jeopardize the continued existence of threatened or endangered species. The continued existence of a listed species depends upon the fate of the populations that comprise them and the continued existence of a population is determined by the fate of individuals that comprise the population. That is, the abundance, reproduction, and distribution of a given species depends upon the collective performance of populations within the geographic extent of the species in the wild. Population performance is typically measured by rates of increase or decrease and is derived as a function of an individual’s ability to live, die, grow, mature, migrate, and reproduce.

In this opinion, we have described the status of the Dakota skipper at the rangewide scale, affected population scale, and the Action Area scale. We have also described the environmental baseline conditions at the scale of the Action Area, and summarized the effects of the action, including any indirect or cumulative effects that have caused either lethal or sublethal consequences. In addition, we evaluated the Project’s effects on an individual’s ability to live, grow, mature, migrate, and reproduce in some manner (the expected change in “fitness”3). We now integrate and synthesize this evidence to determine how the Project may alter the likelihood of persistence for the populations those individuals represent. Our objective in this section, and the primary purpose of this biological opinion, is to determine whether the population-level effects caused by the construction and operation of six oil well pads and associated infrastructure will appreciably reduce the likelihood of survival and recovery of these species in the wild. We make these determinations by considering anticipated changes in the species’ reproduction, abundance, or distribution at the scale of the listed range of the Dakota.

The Basics of Population Change

The factors that govern observed changes in the abundance of fish, wildlife, or other taxonomic populations are classified into three general categories: stabilizing, non-stabilizing, and cyclic (Rickleffs 1979). Stabilizing influences generate population patterns that maintain populations near an equilibrium point and vary depending upon whether a given population is experiencing negative or positive population growth. Stabilizing factors are better thought of as density- dependent factors and they influence the number of births and deaths in a population (ratio of births to deaths) primarily through behavioral mechanisms relating to competition for resources (food, habitat, territories, etc.) and predation pressures. Non-stabilizing, density independent factors affect population size without regard to the population equilibrium point. These factors include the localized influences of annual climate variability, long-term changes in climate patterns, habitat loss, stochastic events, and anthropogenic disturbance or exploitation. Other populations may be predominately influenced by short term cyclic factors such as variations in food supply or extreme weather events where the local populations/meta-populations may exhibit a negative response and later recover, resulting in short term oscillations over time.

3 Fitness is a measure of the response of a population of organisms to natural selection, based upon the number of offspring contributed to the next generation in relation to the number of offspring required to maintain the subject population at its’ current size. Maintaining the fitness (growth, survival, and annual recruitment, and lifetime reproductive success of individuals) is a necessary attribute of viable populations. 54

Populations with negative growth (i.e., deaths exceed births) are more susceptible to extinction when density independent mechanisms are the dominant influence (Rickleffs 1979). This increased risk of extinction arises from the failure of species to adapt quickly enough to “solve” the excessive death rate (Rickleffs 1979). Although extinction is a chance event, it is not a random event when density independent, non-stabilizing factors drive populations to extinction.

Extinction as a chance event is influenced by two corollaries: the size of a population and the reference time period. Extinction is more likely with smaller populations in any given time period and more likely over time with any given population size (Soule et al. 1987). In other words, extinction as a chance event is expected for all species if given enough time. Consequently, one cannot predict the likelihood of extinction without establishing a reference time period. Once established, the likelihood (probability) of extinction can be described by evaluating the relevant density dependent and independent factors that govern population change, giving special attention to those factors that drive populations to extinction.

The Conservation Needs of the Dakota skipper

One of the best indicators of a robust conservation strategy would be one that anticipates and protects the species from negative changes in abundance due to the non-stabilizing, density independent stressors such as habitat loss/degradation, stochastic events, etc. Typically the conservation objectives to address the specific needs of the species are identified in a recovery plan, but a recovery plan has not yet been developed for the Dakota skipper. However, there are ecological components that are common to all conservation strategies that are generally referred to as redundancy, representation, and resilience (Redford et al. 2011). Although Redford et al. (2011) characterized these concepts for vertebrate species, they are applicable to invertebrates, particularly imperiled invertebrates such as the Dakota skipper.

Redundancy is defined as multiple, geographically dispersed populations and habitats across a species’ range such that the loss of one population or one unit of habitat will not result in the loss of the species. Redundancy allows for a margin of safety for a species and/or its habitat to withstand threats, including unforeseen catastrophes. Representation is defined as the retention of genetic, morphological, physiological, behavioral, habitat, or ecological diversity of the species so its adaptive capabilities are conserved. Resilience is defined as the ability of the species and/or its habitat to recover from disturbances. In general, species are likely to be more resilient if large populations exist in large blocks of high quality habitat across the full breadth of environmental variability to which the species is adapted (Redford et al. 2011).

The manner in which redundancy, representation, and resilience can be achieved for the Dakota skipper is to maintain and actively manage native grasslands and connectivity among native grasslands (relative to the dispersal capabilities of the species) to provide for the species needs to complete their life cycle with enough success to sustain sub-populations/demes within the range of the species.

Status and Trend of the Species

Given the inconspicuous nature of the species and the specialized experience required to accurately identify and detect the species in the wild, it is impractical for the USFWS to attempt to quantify the number of Dakota skippers that may be injured, killed, or have a response that significantly disrupts normal behavior. However, some context of the redundancy, trend, and observed Dakota skipper encounter rates is necessary and appropriate in order to evaluate the impact the Project may have on the survival and recovery of the species.

Although not all potentially suitable grassland habitat has been surveyed, the species has been documented at 292 sites globally. Of the 292 historically documented sites, 38 percent (111 sites) are currently known to be occupied and 30 percent (87 sites) have an unknown status. The species has been extirpated from 33 percent (93 sites) of the historically known sites (Table 5). Approximately 38 percent (42 of 112) of the sites where the species still is present are located in Canada, mostly within 3 isolated complexes (observed in 2002 or in 2007). The U.S. supports 62 percent (69 of 112 sites) of the entire global abundance and the grasslands of North Dakota have the largest share of the U.S. population, supporting 45 of the 69 sites (65 percent of the occupied U.S. sites). The overall trend in the U.S. portion of the species’ range is currently expected to be declining (79 FR 63741 [October 24, 2014]).

In a summary of 2012 Dakota skipper surveys at several North Dakota sites, Dr. Royer (Royer and Royer 2012b; Royer and Royer 2012a both in 79 FR 63672) reported the 2012 North Dakota State average = 9.4 encounters per hour and the 1996–1997 average = 17.4 encounters per hour. Encounter rates varied from 16.94/hour (1996 and 1997) to 22.67/hour (1998) to 10.62/hour. In specific reference to this analysis, Dr. Royer conducted a survey in 2014 of an area approximately 3 mi west of this Project and observed 4-6 individuals per hour (Royer 2014). In the prognosis, Royer (2014, p.46) provides the following synopsis:

“There are no apparent concerns if present management continues. The Dakota Skipper should persist at this location, especially given that viable habitat is clearly more extensive than had previously been thought. However, Bakken Oilfield development (including a proposed water pipeline corridor through this exact area), and location on the far western edge of the Dakota Skipper’s plausible ecological range makes the site vulnerable to any substantive changes in management. Continued monitoring should be considered essential.”

Surveys for the species were not conducted within the Action Area, but given the low level of stressors and the continuity and juxtaposition of year-around and dispersal habitat between the site referenced by Royer (2014) and Action Area, we conclude there is a reasonable likelihood that the species occurs in the Action Area. Thus, we assumed occupancy for portions of the Charolais and Wolverine Facilities in the Project footprint.

The current trend of the affected population (within and adjacent to the Action Area) is considered to be stable and the suitable habitat (for dispersal and reproduction) near the Action Area appears to be both well distributed and abundant (based upon both an onsite review in August 2016 and qualitative desktop review of suitable habitat by the USFWS). The abundance

56 of suitable, connected, and accessible habitat adjacent to the Action Area gives us additional confidence that the affected population is likely stable to increasing.

However, this action will introduce new stressors to an otherwise stable population. These stressors are expected to contribute to the on-going destruction of the native grasslands that began in 1830, accelerated in the 1960’s, and continues incrementally today. This action is also expected to cause a direct reduction in the abundance and distribution in the affected meta- population as well as a loss of available habitat for the species, which is expected to contribute to the species’ rangewide decline in abundance and distribution (79 FR 63677 [October 24, 2014]).

Most Likely Response of Individuals and the Affected Population

In the Effects Section, we conclude that adult Dakota skippers associate with 3.25 ac will be destroyed during the construction activities. In addition, 37.72 ac of dispersal grassland habitat will be permanently lost resulting in a net loss of suitable Dakota skipper habitat caused by the construction of the Project.

We also conclude that lethal and sub-lethal consequences are likely to occur to individuals inhabiting the Action Area surrounding the Project footprint, due to:

1. an increased risk of physical impacts (due to vehicle strikes) during the operation and maintenance phase of the Project from skippers crossing the existing road between patches of suitable habitat 2. the loss of assumed occupied habitat caused by the Project will permanently destroy 3.25 ac and impact an additional 15.14 ac of field verified assumed occupied habitat within 40 m of the Project 3. the loss of dispersal habitat caused by the Project will directly result in a reduction of 37.72 ac of dispersal habitat and an additional 80.92 ac of dispersal habitat by dusting and invasive plant encroachment. Additionally, 2.75 ac of dispersal habitat was identified by a spatial analysis of habitat within 40 m of the Project 4. despite the use of spot treatment of noxious weeds, the spread of invasive plants and noxious weeds (out to a distance of 40 m from the well pads, roads, and other disturbances) is expected following the construction, ground disturbance, and motorized use of the access road.

The effects from dust and invasive plants are expected to incrementally (on an annual basis) degrade the Dakota skipper habitat over time to such a degree that the normal life cycle behavior patterns (breeding, feeding, sheltering, and metamorphosis) of Dakota skippers are likely to be significantly disrupted. We conclude Project-induced dust will likely result in: 1) higher PH (>10.0) and temperatures (exacerbated by higher average annual windspeeds) coupled with lower humidity at or just above the soil; 2) reduced plant growth and fitness of grasses that larvae and pupae are fully dependent upon for food and shelter in development; and 3) dust covering overwintering pupae that creates a higher likelihood of a lower overwinter survival. These indirect effects of the Project are likely to have an incremental reduction in the numbers,

57 distribution, and reproductive capability of the affected population associated with 3.25 ac of assumed occupied Dakota skipper habitat.

The combination of direct and indirect effects caused by the Project are expected to have an incremental reduction in the numbers, distribution, and reproductive capability of the affected meta-population. We therefore conclude an incremental reduction in the overall viability of the affected meta-population will be caused by the Project.

However, the vast majority of the individual Dakota skippers occurring in the occupied habitat, within the Action Area and in the larger extent of the affected meta-population, will have no exposure to any Project-induces stressors. This indicates that the overall resilience of the larger, more expansive meta-population they represent (exceeding 1,000 ac) will not be affected by this Project. Despite the presence of existing oil and gas development that is affecting the meta- population (See Figure 4), we expect the meta-population to continue to persist and maintain a stable trend based on the following reasoning.

Although measurable reductions in the species abundance (by using habitat as a surrogate) and availability of suitable habitat are expected, we infer that a biologically meaningful decrease in the species’ representation and redundancy is not likely (based upon the high proportion of the meta-population unaffected by the Project, as measured by the remaining occupied habitat unaffected). We do not expect the Project, via the new infrastructure and anthropogenic disturbance, will cause barriers to dispersal, though dispersal is expected to be hindered during the flight stage for some individual Dakota skippers that reside in the immediate vicinity of the well pads and road network. Nonetheless, the overall connectivity within the metapopulation is expected to be retained. This indicates that the overall resilience individuals and the metapopulation they represent are unlikely to be significantly impaired by Project stressors, which leads the USFWS to infer that biologically meaningful changes in the species’ representation and redundancy are not likely. We therefore conclude any changes in the numbers, reproduction, and distribution of Dakota skipper (as measured by using suitable habitat as a surrogate) will not be biologically significant at the scale of the affected population (in and near the Action Area). Accordingly, we do not expect an appreciable reduction in the likelihood of survival and recovery of the species (at the listed range).

CONCLUSION

After reviewing the current status of Dakota skipper; the environmental baseline for the Action Area; the effects of the Project; and the cumulative effects, it is the USFWS's biological opinion that the construction and operation of the 49 oil and gas wells (and associated infrastructure and access roads) on 6 new pads and 3 existing well pads for the Antelope MDP, as proposed, is not likely to jeopardize the continued existence of the Dakota skipper.

Critical habitat for this species is located within the Action Area; however, this action does not affect that area and no destruction or adverse modification of that critical habitat is anticipated Designated critical habitat is approximately 3 mi directly west of Charoloais sites at the nearest point.

INCIDENTAL TAKE STATEMENT

Section 9 of the Act and Federal regulation pursuant to section 4(d) of the Act prohibit the take of endangered and threatened species, respectively, without special exemption. Take is defined as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Harm is defined by the USFWS as an act which actually kills or injures wildlife. Such an act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavior patterns, including breeding, feeding, or sheltering (50 CFR 17.3). Harass is defined by the USFWS as an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering (50 CFR 17.3). Incidental take is defined as take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. Under the terms of section 7(b)(4) and section 7(o)(2), taking that is incidental to and not intended as part of the agency action is not considered to be prohibited taking under the Act provided that such taking is in compliance with the terms and conditions of this Incidental Take Statement.

The measures described below are non-discretionary, and must be undertaken by the USFS so that they become binding conditions of any grant or permit issued to Continental and Slawson, as appropriate, for the exemption in section 7(o)(2) to apply. The USFS has a continuing duty to regulate the activity covered by this incidental take statement. If the USFS 1) fails to assume and implement the terms and conditions or 2) fails to require Continental and Slawson to adhere to the terms and conditions of the incidental take statement through enforceable terms that are added to the permit or grant document, the protective coverage of section 7(o)(2) may lapse. In order to monitor the impact of incidental take, the (USFS or the Companies) must report the progress of the action and its impact on the species to the USFWS as specified in the incidental take statement [50 CFR 402.14(i)(3)].

Amount or Extent of Take

The USFWS anticipates the incidental take of Dakota skippers will be difficult to detect or quantify for the following reasons:

 The presence of individual Dakota skippers is extremely difficult to confirm due to the species’ obscure life cycle, thus incidental take of individuals is too difficult to monitor effectively and  The incidental take of eggs, larvae, pupae, or adults (flight stage) will be difficult track and quantify given the diminutive size and obscurity of individuals, thus the total amount of injury or mortality will be highly uncertain.

However, in instances such as this, incidental take can be approximated by quantifying the spatial extent (acres) of the habitat degradation, destruction and/or modification caused by the construction and operation of the Project. In the Integration and Synthesis section of this

59 biological opinion, we concluded that 3.25 ac of occupied and 37.72 ac of dispersal Dakota skipper habitat would be destroyed by the Project. There is no anticipated incidental take associated with the destruction of dispersal habitat.

We further concluded that the Dakota skippers associated with an additional 15.14 ac habitat (assumed occupied) would likely be injured or destroyed by dusting and the incremental invasive plant encroachment within 40 m of the Project footprint over time due to the operation and maintenance of the Project. The additional habitat degradation from dusting and invasive plant encroachment would create the likelihood that the species would be injured by annoying it to such an extent as to significantly disrupt normal behavior patterns (breeding, feeding, and sheltering). Using the extent and location of Dakota skipper suitable habitat as a surrogate indicator of the amount or extent of incidental take that will occur, the USFWS expects all life stages of Dakota skippers associated with 18.39 ac (3.25 ac of habitat removal due to the Project footprint and 15.14 ac of assumed occupied habitat removal over time due to the operation of the project) will be incidentally taken. Specifically, Dakota skippers associated with 3.25 ac will be destroyed by construction activities resulting in actual killing individuals which are expected to be present and individuals associated with 15.14 ac are expected to be incidentally taken in the form of harassment due to the physical modification of habitat caused by:

The ground disturbance, deposition of airborne dust and subsequent changes in soil pH; increased wind speed; and/or the spread of invasive plants that are expected to modify the vegetative structure of reproductive habitat adjacent to the proposed construction of Charolais facilities in Section 15 and 22, T 153 N, R94 W. Collectively, these Project-induced stressors will diminish the carrying capacity of the habitat upon which the species uses for nectaring (during the adult flight stage) and reproductive habitat (for eggs, larvae, and pupae development). Based upon the description of the proposed action, the USFWS has determined the incidental take is expected to occur on USFS lands in the following locations caused by the following actions and parties:

 Continental Resources, Inc.(its successors, subsequent owners, or assignees, or any party acting on behalf of or directed by Continental Resources Inc., including sub- contractors, subsidiaries, etc.) is expected to cause: o the destruction of up to 3.12 ac of presumed occupied Dakota skipper habitat for construction of the Charolais access road in Sections 15 and 22, T153N, R94W and 0.13 ac of presumed occupied Dakota skipper habitat for construction of the Brangus A access road in Section 15, T153N, R94W, totaling 3.25 ac; and o the degradation of 12.50 ac of presumed occupied Dakota skipper habitat for the construction of the Brangus A and Charolais access roads in Sections15 and 22, T153N, R94W, and 0.28 ac for construction of the Harms A pad in Section 31, T153N, R93W during the operation of the oil wells and associated pads and infrastructure.

 Slawson Exploration Company, Inc.(its successors, subsequent owners, or assignees, or any party acting on behalf of or directed by Slawson Exploration Company, Inc., including sub-contractors, subsidiaries, etc.) is expected to cause: o the degradation of 2.36 ac of assumed occupied Dakota skipper habitat for the construction of the Wolverine 278 and Wolverine 241 pads in Section 31, T153N, R93W.

The incidental take of individual Dakota skippers is expected to occur throughout the life of the Project. These expected lethal effects will begin sometime after the USFS authorizes the action at the onset of siting and construction. The construction machinery and vehicles will be clearing and grubbing of vegetation and topsoil, cutting and filling, and grading and surfacing in preparation for well pad and road construction. Dusting from vehicular traffic associated with the maintenance and production activities, as well as the encroachment of invasive vegetation into Dakota skipper occupied habitat, will continue throughout the operational period of the Project. Deleterious vegetation and soil changes from the construction and operation of the Project are expected to persist even after decommissioning and final reclamation.

EFFECT OF THE TAKE

In the accompanying biological opinion, the USFWS has determined that this level of anticipated take is not likely to result in jeopardy to the species.

REASONABLE AND PRUDENT MEASURES

Pursuant to 50 CFR 402.14(i)(1)(iii) and 402.14(i)(3), the USFWS believes the following reasonable and prudent measure is necessary and appropriate to minimize the take Dakota skippers.

 The USFWS requires monitoring during project implementation to ensure that take is not exceeded. In order to monitor the impacts of incidental take, the USFS must report the progress of the action and its impact on the species to the USFWS in order to not exceed the anticipated incidental take as specified in this incidental take statement.

TERMS AND CONDITIONS

In order to be exempt from the prohibitions of section 9 of the Act, the USFS must comply with the following terms and conditions, which implement the reasonable and prudent measures, described above and outline required reporting/monitoring requirements. These terms and conditions are non-discretionary and apply to the portion of the Project within the jurisdiction of the USFS (Dakota Prairie Grasslands).

Term and Condition 1: Pursuant to approval of a SUPO by the USFS as part of the Application for Permit to Drill (APD) and final approval of the APD by the BLM, the USFS as the lead federal agency shall insure dust abatement measures are implemented and the watering

solutions contain calcium chloride (or an alternative with equal or greater effectiveness on dust but with no greater environmental risk) as an additive. Dust abatement treatments shall occur at an appropriate frequency to ensure that dust moving offsite will be minimized to maximum extent practicable on all road segments where occupied, assumed occupied or potential Dakota skipper habitat is located (within 131 ft (40 m) of all dust sources associated with the Project).

Term and Condition 2: Commensurate with the construction activities that are expected to cause the incidental take of Dakota skippers (i.e., habitat removal and the deposition of dust in adjacent Dakota skipper habitat), the USFS as the lead Federal agency shall provide a report summarizing the following information: a) the extent and location of Dakota skipper habitat removal (Project footprint); b) the frequency and locations of dust abatement activities; c) the verification that calcium chloride (or a functional equivalent) was used as an additive to the watering solution during the construction period; and d) the extent of fugitive dust migration into Dakota skipper habitat adjacent to the Project footprint.

The report shall be provided on a monthly basis throughout the construction period with the first report due to the USFWS (North Dakota Field Office) within 45 days of the initiation of construction activities. Monthly reports are to be terminated once all the well pads and associated wells are production-ready. An annual summer inspection (one-time in July) and report by USFS personnel is required during the operational period to ensure the roads and pads are being maintained with dust abatement measures to minimize the effects of fugitive dust during the oil production/operational period.

The USFWS anticipates that no more than 3.25 ac of assumed occupied Dakota skipper will be removed due to construction of this Project. Additionally no more than 15.14 ac of assumed occupied habitat will be indirectly degraded due to the combined effects fugitive dust and the spread of invasive plants. The reasonable and prudent measures, along with their implementing terms and conditions, are designed to minimize the impact of incidental take that might otherwise result from the Project. If, during the course of the construction and/or operational activities, this level of incidental take is exceeded, such incidental take represents new information requiring reinitiation of consultation and review of the reasonable and prudent measures provided. The federal agencies must immediately provide an explanation of the causes of the taking and review with the USFWS the need for possible modification of the reasonable and prudent measures.

The Service is to be notified within three working days upon locating a dead, injured or sick endangered or threatened species specimen (see 50 CFR 402. l 4(i)(l )(v)). Initial notification must be made to the nearest U.S. Fish and Wildlife Service Office of Law Enforcement. Notification must include the date, time, precise location of the injured animal or carcass, and any other pertinent information. Care should be taken in handling sick or injured specimens to preserve biological materials in the best possible state for later analysis of cause of death, if that occurs. In conjunction with the care of sick or injured endangered or threatened species or

62 preservation of biological materials from a dead animal, the finder has the responsibility to ensure that evidence associated with the specimen is not unnecessarily disturbed. Contact the U.S. Fish and Wildlife Service Office of Law Enforcement at (701) 255-0593, or the Ecological Services Field Office in North Dakota at (701) 250-4481.

CONSERVATION RECOMMENDATIONS

Section 7(a)(1) of the ESA directs the USFS and BLM Management to utilize their authorities to further the purposes of the ESA by carrying out conservation programs for the benefit of endangered and threatened species. Conservation recommendations are discretionary agency activities to minimize or avoid adverse effects of a Project on listed species or critical habitat, to help implement recovery plans, or to develop information.

The USFWS suggests the following conservation recommendations be included as a Condition of Approval if the permit to drill is granted to the Companies:

 Fully apply the Dakota skipper Conservation Guidelines on the entire project area (not only where/when feasible).

 Establish mitigation sites in the vicinity of the Project to enhance native mixed grass/prairie habitats of sites containing marginal or degraded grassland habitat for the Dakota skipper due to historical anthropogenic disturbances. The USFWS recommends prioritizing mitigation sites that were once occupied by the species but now are extirpated due to habitat degradation. Mitigation should be in the form of habitat enhancement and protection in perpetuity. This would potentially increase Dakota skipper habitat and subsequently boost populations, contributing to species recovery. Monitoring is recommended to ensure any activities designed to improve Dakota skipper habitats are having the desired effect. Mitigation should occur following ratios in Table 13.

Table 13 Recommended Dakota Skipper Habitat Mitigation Ratios Native Prairie Type Affected Duration Ratio Native Mixed Grass Prairie (Dakota Permanent 3.5:1 Skipper Type B Habitat) Temporary 2.5:1 Permanent 2:1 Other Native Mixed Grass Prairie Temporary 1:1

 Conduct Dakota skipper surveys to determine the continued presence of the skipper post- construction, determine the effectiveness of terms and conditions, evaluation of conservation measures, etc.

 Enter into voluntary agreements with the Companies to facilitate and participate in the research and funding of artificial propagation that could result in future introductions of the species to either the project area or mitigation site(s). While captive rearing, habitat restoration, and reintroductions of Dakota skippers have not yet been proven successful,

these efforts are currently being researched and have the potential to enhance recovery of the species.

In order for the USFWS to be kept informed of actions minimizing or avoiding adverse effects or benefiting listed species or their habitats, the USFWS requests notification by the Companies, and/or its successors, in association with the USFS and BLM of the implementation of any conservation recommendations.

REINITIATION NOTICE

This concludes formal consultation on the USFS proposed approval of the permit to drill for the Companies. As provided in 50 CFR 402.16, reinitiation of formal consultation is required where discretionary Federal agency involvement or control over the action has been retained (or is authorized by law) and if: 1) the amount or extent of incidental take is exceeded; 2) new information reveals effects of the agency action that may affect listed species or critical habitat in a manner or to an extent not considered in this opinion; 3) the agency action is subsequently modified in a manner that causes an effect to the listed species or critical habitat not considered in this opinion; or 4) a new species is listed or critical habitat designated that may be affected by the action. In instances where the amount or extent of incidental take is exceeded, any operations causing such take must cease pending reinitiation.

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