# 80 FR 77200: Management of Non-Federal Oil and Gas Rights

> Federal · Regulations · In force

URL: https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2015-30977

## Section

- **Citation:** 80 FR 77200
- **Heading:** Management of Non-Federal Oil and Gas Rights
- **Jurisdiction:** Federal
- **Kind:** Regulations
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** Federal Register / Vol. 80 / 80 FR 77200

## Text

DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Parts 28 and 29 [Docket No. FWS-HQ-NWRS-2012-0086; FXRS12610900000-156-FF09R24000] RIN 1018-AX36 Management of Non-Federal Oil and Gas Rights AGENCY:
Fish and Wildlife Service, Interior.

ACTION:
Proposed rule.

SUMMARY:
We, the U.S. Fish and Wildlife Service (Service), are proposing to revise regulations governing the exercise of non-Federal oil and gas rights in order to improve our ability to protect refuge resources, visitors, and the general public's health and safety from potential impacts associated with non-Federal oil and gas operations located within U.S. Fish and Wildlife Service refuge units. Non-Federal oil and gas development refers to oil and gas activities associated with any private, State, or tribally owned mineral interest where the surface estate is administered by the Service as part of the Refuge System. The existing non-Federal oil and gas regulations have remained unchanged for more than 50 years and provide vague guidance to staff and operators. This proposed rule would make the regulations consistent with existing laws, policies and industry practices. It is designed to provide regulatory clarity and guidance to oil and gas operators and refuge staff, provide a simple process for compliance, incorporate technological improvements in exploration and drilling technology, and ensure that non-Federal oil and gas operations are conducted in a manner that avoids or minimizes impacts to refuge resources.

DATES:
Comments on this proposed rule must be received on or before February 9, 2016. Comments on the information collection aspects of this rule must be received on or before January 11, 2016 .

ADDRESSES:
Document Availability: An economic analysis and a draft environmental impact statement (DEIS) have been prepared in conjunction with preparation of this proposed rule, and both documents are available at http://www.fws.gov/refuges/oil-and-gas/rulemaking.html and also at www.regulations.gov at Docket No
ollection aspects of this rule must be received on or before January 11, 2016 .

ADDRESSES:
Document Availability: An economic analysis and a draft environmental impact statement (DEIS) have been prepared in conjunction with preparation of this proposed rule, and both documents are available at http://www.fws.gov/refuges/oil-and-gas/rulemaking.html and also at www.regulations.gov at Docket No. FWS-HQ-NWRS-2012-0086.
Comments on the Proposed Rule and DEIS: You may submit comments on this proposed rule or the DEIS by one of the following methods:
• Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, type FWS-HQ-NWRS-2012-0086, which is the docket number for this proposed rule. Then click on the Search button. When you have located the correct document, you may submit a comment by clicking on “Comment Now!”
• U.S. mail or hand-delivery: Submit comments on the proposed rule or DEIS to: Public Comments Processing Attn: FWS-HQ-NWRS-2012-0086; Division of Policy, Performance, and Management Programs; U.S. Fish and Wildlife Service, MS: BPHC; 5275 Leesburg Pike; Falls Church, VA 22041-3803.
Please indicate to which document, the proposed rule or the DEIS, your comments apply. We request that you send comments only by the methods described above. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us. For additional instructions on submitting comments and additional information on the rulemaking process, see the Public Participation heading of the SUPPLEMENTARY INFORMATION section of this document.
Comments on the Information Collection Aspects of the Proposed Rule: You may review the Information Collection Request online at http://www.reginfo.gov. Follow the instructions to review Department of the Interior collections under review by OMB
ts and additional information on the rulemaking process, see the Public Participation heading of the SUPPLEMENTARY INFORMATION section of this document.
Comments on the Information Collection Aspects of the Proposed Rule: You may review the Information Collection Request online at http://www.reginfo.gov. Follow the instructions to review Department of the Interior collections under review by OMB. Send comments (identified by 1018-AX36) specific to the information collection aspects of this proposed rule to both the:
• Desk Officer for the Department of the Interior at OMB-OIRA at (202) 295-5806 (fax) or OIRA_Submission@omb.eop.gov (email); and
• Service Information Collection Clearance Officer; Division of Policy, Performance, and Management Programs; U.S. Fish and Wildlife Service, MS: BPHC; 5275 Leesburg Pike; Falls Church, VA 22041-3803 (mail); or hope_grey@fws.gov (email).
FOR FURTHER INFORMATION CONTACT:
Scott Covington, U.S. Fish and Wildlife Service, Division of Natural Resources and Planning, MS: NWRS, 5275 Leesburg Pike, Falls Church, Virginia 22043; telephone 703-358-2427.

SUPPLEMENTARY INFORMATION:

Executive Summary
We are proposing to update the existing regulations at subpart C of part 29 of title 50 of the Code of Federal Regulations (CFR) and propose new regulations as subpart D of 50 CFR part 29, which would govern the exercise of non-Federal oil and gas rights within refuge units, to improve the effectiveness of the regulations in protecting refuge resources and values, and to improve the clarity of the regulations for both operators and the Service
ions at subpart C of part 29 of title 50 of the Code of Federal Regulations (CFR) and propose new regulations as subpart D of 50 CFR part 29, which would govern the exercise of non-Federal oil and gas rights within refuge units, to improve the effectiveness of the regulations in protecting refuge resources and values, and to improve the clarity of the regulations for both operators and the Service.
Key components of the proposed rule include:
• A permitting process for new operations;
• A permitting process for well-plugging and reclamation for all operations;
• Information requirements for particular types of operations;
• Operating standards so that both the Service and the operator can readily identify what standards apply to particular operations;
• Fees for new access beyond that held as part of the operator's oil and gas right;
• Financial assurance (bonding);
• Penalty provisions;
• Clarification that the process for authorizing access to non-Federal oil and gas properties in Alaska will continue to be controlled by 43 CFR part 36, which implements provisions of the Alaska National Interest Lands Conservation Act; and
• Codification of some existing agency policies and practices.
A detailed discussion of all proposed changes to the regulations is contained in the section-by-section analysis.
Background
In 2003, the Government Accountability Office (GAO) issued a report (GAO-03-517) to Congress highlighting the opportunities to improve management and oversight of oil and gas operations on National Wildlife Refuge System (NWRS) lands and waters. An update by GAO in 2007 (GAO-07-829R) reasserted the recommendation that the Service take the necessary steps to apply a consistent and reasonable set of regulatory and management controls over all oil and gas activities occurring on refuges to protect the public's surface interests
rove management and oversight of oil and gas operations on National Wildlife Refuge System (NWRS) lands and waters. An update by GAO in 2007 (GAO-07-829R) reasserted the recommendation that the Service take the necessary steps to apply a consistent and reasonable set of regulatory and management controls over all oil and gas activities occurring on refuges to protect the public's surface interests. Other land management agencies have regulations that address oil and gas development for non-Federal subsurface interests, including the Department of the Interior's National Park Service (NPS) and the U.S. Department of Agriculture's Forest Service. This proposed rule would address concerns highlighted in the GAO reports and bring the Service more in line with other Federal land management agencies.
Based on Service data from 2011, there are over 5,000 oil and gas wells on 107 refuges in a total of 599 refuge units. Of the wells present on refuges, 1,665 actively produce oil and gas. Based on the existence of split estates (where the Service owns the surface estate and another party owns the mineral estate), exploration and production already occurring on adjacent or nearby lands, and future increases in energy prices, non-Federal oil and gas operations within refuges potentially could affect many additional refuges. Because of the impacts of oil and gas operations, a rulemaking is necessary to create a consistent and reasonable set of regulatory management controls for non-Federal oil and gas operations on refuges.
In 1960, the Service promulgated the current regulations at 50 CFR 29.32 to govern the exercise of non-Federal mineral rights on NWRS lands and waters. These regulations have not been updated. These regulations outline a general policy to minimize impacts to refuge resources to the extent practicable from all activities associated with non-Federal mineral exploration and development where access is on, across, or through federally owned or controlled lands or waters of the NWRS
the exercise of non-Federal mineral rights on NWRS lands and waters. These regulations have not been updated. These regulations outline a general policy to minimize impacts to refuge resources to the extent practicable from all activities associated with non-Federal mineral exploration and development where access is on, across, or through federally owned or controlled lands or waters of the NWRS. However, they have been ineffective at protecting refuge resources or providing operators explicit requirements for operating on refuge lands. The current regulations lack both a process and specific guidance for operators and refuge employees to plan efficient operations on refuges that minimize impacts to refuge resources. Similarly, existing Service policies related to exploring and developing non-Federal oil and gas rights under refuges, such as 612 FW 3, lack regulatory provisions needed to successfully protect refuge resources and provide sufficient guidance.
Authority To Promulgate Regulations
One of the principal recommendations of the 2003 GAO report was for the Service to clarify its regulatory authority over non-Federal oil and gas operations on NWRS lands. This rulemaking provides notice to the public that the authorities given to the Service by Congress include the authority to regulate the exercise of non-Federal oil and gas rights located within refuge units. Because the Service's current regulations from 1960 pre-date the National Wildlife Refuge System Administration Act (NWRSAA), as amended by the National Wildlife Refuge System Improvement Act (NWRSIA) (16 U.S.C. 668dd et seq. ) and do not clearly assert or implement the full extent of the Service's authority to regulate non-Federal oil and gas rights or provide for consistent management of the exercise of those rights, we are proposing to revise the current regulations
Wildlife Refuge System Administration Act (NWRSAA), as amended by the National Wildlife Refuge System Improvement Act (NWRSIA) (16 U.S.C. 668dd et seq. ) and do not clearly assert or implement the full extent of the Service's authority to regulate non-Federal oil and gas rights or provide for consistent management of the exercise of those rights, we are proposing to revise the current regulations.
The authority of Congress to provide for the regulation of non-Federal oil and gas operations on NWRS lands is derived from the Property Clause of the United States Constitution (U.S. Const. art. IV, sec. 3). Specifically, the Service has been provided the statutory authority to manage Federal lands and resources under NWRSAA, as amended by the NWRSIA. In 1997, Congress enacted the NWRSIA, amending and building upon the NWRSAA in a manner that provided an organic act for the NWRS similar to those which exist for other public lands. Generally, in enacting the NWRSIA, Congress recognized that the Service needed additional guidance and authority to manage the NWRS.
The NWRSIA (16 U.S.C. 668dd(a)(4)) mandates the Secretary of the Interior, in administering the System, to:
• Provide for the conservation of fish, wildlife, and plants, and their habitats within the NWRS;
• Ensure that the biological integrity, diversity, and environmental health of the NWRS are maintained for the benefit of present and future generations of Americans;
• Ensure that the mission of the NWRS described at 16 U.S.C
dates the Secretary of the Interior, in administering the System, to:
• Provide for the conservation of fish, wildlife, and plants, and their habitats within the NWRS;
• Ensure that the biological integrity, diversity, and environmental health of the NWRS are maintained for the benefit of present and future generations of Americans;
• Ensure that the mission of the NWRS described at 16 U.S.C. 668dd(a)(2) and the purposes of each refuge are carried out;
• Ensure effective coordination, interaction, and cooperation with owners of land adjoining refuges and the fish and wildlife agency of the States in which the units of the NWRS are located;
• Assist in the maintenance of adequate water quantity and water quality to fulfill the mission of the NWRS and the purposes of each refuge;
• Recognize compatible wildlife-dependent recreational uses as the priority general public uses of the NWRS through which the American public can develop an appreciation for fish and wildlife;
• Ensure that opportunities are provided within the NWRS for compatible wildlife-dependent recreational uses; and
• Monitor the status and trends of fish, wildlife, and plants in each refuge.
The NWRSIA also gave the Service new authority to promulgate regulations to carry out the NWRSAA.
Several recent Circuit Court decisions have held that this regulatory authority extends to non-Federal property interests within refuges. Although these cases did not directly address non-Federal mineral rights, nothing in these decisions would limit the Service's regulatory authority with respect to this form of property interest. In Burlison v. United States (533 F.3d 419 (6th Cir. 2008)), the appeals court held that the Service may reasonably regulate a reserved easement within a refuge:
. . . . We do conclude, however, that the Fish and Wildlife Service may legitimately exercise the sovereign police power of the federal government in regulating the easement
tory authority with respect to this form of property interest. In Burlison v. United States (533 F.3d 419 (6th Cir. 2008)), the appeals court held that the Service may reasonably regulate a reserved easement within a refuge:
. . . . We do conclude, however, that the Fish and Wildlife Service may legitimately exercise the sovereign police power of the federal government in regulating the easement. Section 668dd(d)(1)(B) delegates the power to the Secretary of the Interior (and the Fish and Wildlife Service) “under such regulations as he may prescribe,” to “permit the use of . . . any areas within the System for purposes such as . . . roads.” The question before us is whether the permissive power respecting roads authorized by the Refuge Act also includes the power to regulate a private easement over a road. We answer this question in the affirmative.
Burlison also relied on the Duncan Energy Co. v. United States Forest Service, 50 F.3d 584 (8th Cir. 1995), which upheld Federal regulation of non-Federal oil and gas rights on Forest Service lands. In School Board of Avoyelles Parish v. United States Department of the Interior (647 F.3d 570 (5th Cir. 2011)), the Fifth Circuit held that FWS had authority to regulate access and use of refuge lands under the NWRAA/NWRSIA even for holders of valid easements. The Court's opinion notes that the relevant regulation required a permit for “any person entering a national wildlife refuge,” unless otherwise excepted by the regulations, and found that, even though the owner had a non-Federal property interest in the land, they were required to obtain a permit from the Service. The court, citing Burlison and other cases, found that the restrictions on the exercise of the non-Federal property right were well within Federal authority under the Property Clause. The Service fully recognizes, as the Burlison court explained, that the right to reasonably regulate these private property interests does not mean that the Service may “eviscerate” those property rights
the Service. The court, citing Burlison and other cases, found that the restrictions on the exercise of the non-Federal property right were well within Federal authority under the Property Clause. The Service fully recognizes, as the Burlison court explained, that the right to reasonably regulate these private property interests does not mean that the Service may “eviscerate” those property rights. These decisions support the Service's belief that it does have the necessary statutory authority to promulgate these proposed rules in order to achieve its legislative mandates, including the conservation of fish, wildlife, and plants in their habitat, and ensuring the biological integrity of the Refuge System.
The Service is aware of the 1986 memorandum by the Associate Solicitor, Conservation and Wildlife (“1986 Opinion”) that interpreted that the Service, at that time, lacked the Caire v. Fulton, 1986 U.S. Dist. LEXIS 31049 (W.D. La. 1986), an unpublished district court decision, where the United States had explicitly agreed during eminent domain proceedings to delete from the proposed deed a provision authorizing Service regulation of the oil and gas interests not being acquired. Additionally, the 1986 Opinion made a distinction in the Service's authority to regulate between reserved and outstanding rights, which Interior recognized in its response to the 2003 GAO report.
The 1986 Opinion was also premised on a provision of the Migratory Bird Conservation Act (MBCA), 16 U.S.C
deed a provision authorizing Service regulation of the oil and gas interests not being acquired. Additionally, the 1986 Opinion made a distinction in the Service's authority to regulate between reserved and outstanding rights, which Interior recognized in its response to the 2003 GAO report.
The 1986 Opinion was also premised on a provision of the Migratory Bird Conservation Act (MBCA), 16 U.S.C. 715e, which was amended in 1935 to provide:
The Secretary of the Interior may do all things and make all expenditures necessary to secure the safe title in the United States to the areas which may be acquired under this subchapter, but no payment shall be made for any such areas until the title thereto shall be satisfactory to the Attorney General or his designee, but the acquisition of such areas by the United States shall in no case be defeated because of rights-of-way, easements, and reservations which from their nature will in the opinion of the Secretary of the Interior in no manner interfere with the use of the areas so encumbered for the purposes of this subchapter, but such rights-of-way, easements, and reservations retained by the grantor or lessor from whom the United States receives title under this subchapter or any other Act for the acquisition by the Secretary of the Interior of areas for wildlife refuges shall be subject to rules and regulations prescribed by the Secretary of the Interior for the occupation, use, operation, protection, and administration of such areas as inviolate sanctuaries for migratory birds or as refuges for wildlife; and it shall be expressed in the deed or lease that the use, occupation, and operation of such rights-of-way, easements, and reservations shall be subordinate to and subject to such rules and regulations as are set out in such deed or lease or, if deemed necessary by the Secretary of the Interior, to such rules and regulations as may be prescribed by him from time to time
as refuges for wildlife; and it shall be expressed in the deed or lease that the use, occupation, and operation of such rights-of-way, easements, and reservations shall be subordinate to and subject to such rules and regulations as are set out in such deed or lease or, if deemed necessary by the Secretary of the Interior, to such rules and regulations as may be prescribed by him from time to time.
The facts underlying the Caire case have long suggested that it is of limited precedential value. To the extent it could be construed to stand for the proposition that the Service may only regulate the property interest reserved in the deed when the deed expressly provided for such regulation, the decision appears to be overtaken by that of the Avoyelles Parish Circuit Court. Moreover, Burlison and Avoyelles Parish support the exercise of such rulemaking authority without regard to this provision of the MBCA. So, after consultation with the Office of the Solicitor of the Department of the Interior, we now believe that the 1986 Opinion has been superseded by the amendments to the Administration Act and subsequent court decisions interpreting the amended act, and that our current regulations from 1960 do not reflect the full extent of the authorities enacted by Congress after that date which direct the Service to protect refuge resources and uses.
Therefore, the Service believes it does have the authority to issue regulations to reasonably regulate both reserved and outstanding non-Federal oil and gas interests within the NWRS even when the right to regulate is not stated in the relevant deed. In our review of various deeds used by the Service to acquire the lands and interests in lands that make up the NWRS, we find many variations and that it is not possible to review or summarize all such provisions, or ensure that we are familiar with the circumstances surrounding each acquisition of NWRS lands, which did not include the mineral rights
to regulate is not stated in the relevant deed. In our review of various deeds used by the Service to acquire the lands and interests in lands that make up the NWRS, we find many variations and that it is not possible to review or summarize all such provisions, or ensure that we are familiar with the circumstances surrounding each acquisition of NWRS lands, which did not include the mineral rights. As part of the pre-application meeting with the Service (see proposed § 29.91), and/or the submission of an application (see proposed § 29.94), the applicant should provide the Service with copies of any deeds or other relevant information which the applicant believes would control or otherwise limit the applicability of the regulations under this subpart to the applicant's operations. This process is intended to ensure that the Service both fully considers relevant deed provisions and any other information concerning the particular acquisitions before imposing requirements on the applicant's operations. The Service will respect any applicable deed conditions; however, these new regulatory requirements still apply to the extent that they do not conflict with such deed conditions, which we believe is the situation in most cases.
The Service will consider any comments on its authority to promulgate these regulations and address them in making its determinations for a final rule.
Non-Federal Oil and Gas Rights Within Refuges
Non-Federal oil and gas rights exist within the NWRS in situations where the oil and gas interest has been severed from the estate acquired by the United States, either because:
• The United States acquired property from a grantor that did not own the oil and gas interest; or
• The United States acquired the property from a grantor that reserved the oil and gas interest from the conveyance.
Non-Federal oil and gas interests can be held by individuals, partnerships, for-profit corporations, nonprofit organizations, or States and their political subdivisions
because:
• The United States acquired property from a grantor that did not own the oil and gas interest; or
• The United States acquired the property from a grantor that reserved the oil and gas interest from the conveyance.
Non-Federal oil and gas interests can be held by individuals, partnerships, for-profit corporations, nonprofit organizations, or States and their political subdivisions. Interests in non-Federal oil and gas are property rights that may only be taken for public use with payment of just compensation in accordance with the Fifth Amendment of the U.S. Constitution. This proposed rule is not intended to result in the taking of a property interest, but rather to impose reasonable regulations on activities that involve or affect federally owned lands and resources of the NWRS to avoid or minimize impacts from such activities to the maximum extent practicable.
These regulations do not apply to the development of the Federal mineral estate, including Federal oil and gas, which are administered by the Bureau of Land Management (BLM), under the Mineral Leasing Act and the Federal Land Policy and Management Act. In areas where oil and gas rights are owned by the United States, and leasing is authorized, the applicable regulations can be found at 43 CFR part 3100. There is a general prohibition to leasing Federal oil and gas on refuge lands (43 CFR 3101.5-1).
Summary of Potential Impacts From Oil and Gas Operations on Refuge Resources and Uses
Examples of non-Federal oil and gas operations conducted on refuges include: Geophysical (seismic) exploration; exploratory well drilling; field development well drilling; oil and gas well production operations, including installation and operation of well flowlines and gathering lines; enhanced recovery operations; well plugging and abandonment; and site reclamation
on Refuge Resources and Uses
Examples of non-Federal oil and gas operations conducted on refuges include: Geophysical (seismic) exploration; exploratory well drilling; field development well drilling; oil and gas well production operations, including installation and operation of well flowlines and gathering lines; enhanced recovery operations; well plugging and abandonment; and site reclamation.
Oil and gas activities have the potential to adversely impact refuge resources in some or all of the following manners:
• Surface water quality degradation from spills, storm water runoff, erosion, and sedimentation;
• Soil and groundwater contamination from existing drilling mud pits, poorly constructed wells, improperly conducted enhanced recovery techniques, spills, and leaks;
• Air quality degradation from dust, natural gas flaring, hydrogen sulfide gas,
• Increased noise from seismic operations, blasting, construction, oil and gas drilling and production operations;
• Reduction of roadless areas on refuges;
• Noise and human presence effects on wildlife behavior, breeding, and habitat use;
• Disruption of wildlife migration routes;
• Adverse effects on sensitive and endangered species;
• Viewshed (an area of land, water, or other environmental element that is visible to the human eye from a fixed vantage point) intrusion by roads, traffic, drilling equipment, production equipment, pipelines, etc.;
• Night sky intrusion from artificial lighting and gas flares;
• Disturbance to archaeological and cultural resources associated with seismic exploration and road/site preparation, associated with maintenance activities, or by spills;
• Visitor safety hazards from equipment, pressurized vessels and lines, presence of hydrogen sulfide gas, and leaking oil and gas that can create explosion and fire hazards;
• Wildlife mortality from oil spills or entrapment in open-topped tanks or pits, poaching, and vehicle collisions;
• Fish kills from oil and oilfield brine spills; and
• Vegetation mortal
ance activities, or by spills;
• Visitor safety hazards from equipment, pressurized vessels and lines, presence of hydrogen sulfide gas, and leaking oil and gas that can create explosion and fire hazards;
• Wildlife mortality from oil spills or entrapment in open-topped tanks or pits, poaching, and vehicle collisions;
• Fish kills from oil and oilfield brine spills; and
• Vegetation mortality from oilfield brine spills.
Summary of Advance Notice of Proposed Rulemaking Comments
On February 24, 2014, we issued an advance notice of proposed rulemaking (ANPR) (79 FR 10080) to assist us in developing this proposed rule. The ANPR had a 60-day comment period, ending April 25, 2014. On June 9, 2014, we reopened the comment period for another 30 days, ending July 9, 2014 (79 FR 32903). The ANPR requested the public to focus their comments on seven topics identified as major areas of concern:
(1) Plans of Operations and Special Use Permits;
(2) Operating Standards;
(3) Financial Assurances;
(4) Access Fees;
(5) Noncompliance;
(6) Existing Operations; and
(7) Impacts from the Proposed Rulemaking.
We received comments from unaffiliated private citizens (36), conservation organizations (14), State agencies (8), counties (2), Alaska Native Corporations (2), a tribal agency, oil and gas owners and operators (6), business associations (5), and a Federal agency, along with almost 80,000 form letter comments from members of two environmental organizations.
The majority of commenters were in favor of strengthening and expanding the regulations to better protect refuge resources and values. Some commenters requested that we not revise the existing regulations, while others questioned the legality of regulating non-Federal oil and gas operations on refuges.
More information on the ANPR and these comments is available at http://www.fws.gov/refuges/oil-and-gas/rulemaking.html and also at www.regulations.gov at Docket No. FWS-HQ-NWRS-2012-0086
etter protect refuge resources and values. Some commenters requested that we not revise the existing regulations, while others questioned the legality of regulating non-Federal oil and gas operations on refuges.
More information on the ANPR and these comments is available at http://www.fws.gov/refuges/oil-and-gas/rulemaking.html and also at www.regulations.gov at Docket No. FWS-HQ-NWRS-2012-0086.
Draft Environmental Impact Statement
We have prepared a draft environmental impact statement (DEIS), which is being published for public comment simultaneously with this proposed rule and is available at www.regulations.gov and at http://www.fws.gov/refuges/oil-and-gas/rulemaking.html, by clicking on the link titled “Oil and Gas DEIS.” The DEIS describes three alternatives: Alternative A—No action; Alternative B—proposed rule (preferred alternative); and Alternative C. Alternative C would include all the proposed changes in Alternative B, would expand the coverage of the regulations to operations on non-Federal surface locations that drill beneath the surface of a refuge to access their non-Federal oil and gas right, and would require all existing operations to obtain operations permits and maintain financial assurance.
Overview of Proposed Regulations
This proposed rule was developed in coordination with the NPS and as a result is consistent with its recently published proposed rule governing non-Federal oil and gas rights within the NPS (NPS 9B Regulations). An operator working on both NWRS and NPS lands would experience little difference in regulatory resource and use protections, regulatory structure based on performance standards, operations permit processes and requirements, monitoring and compliance, and other terms and conditions. However, there are some variations between the two proposed rules necessitated by differing authorities and missions and the scope of the two agencies' non-Federal oil and gas programs
le difference in regulatory resource and use protections, regulatory structure based on performance standards, operations permit processes and requirements, monitoring and compliance, and other terms and conditions. However, there are some variations between the two proposed rules necessitated by differing authorities and missions and the scope of the two agencies' non-Federal oil and gas programs.
The proposed rule would generally require that operators receive permits, either special use permits or rights-of-way (ROW) permits, for new non-Federal oil and gas operations on NWRS lands; provide a regulatory framework to achieve the necessary protections for refuge resources; and improve regulatory consistency to the benefit of both refuge resources and oil and gas operators. The proposed rule contains performance-based standards that provide flexibility to resource managers and operators to use various and evolving technologies within different environments to achieve the standards. It establishes standards for surface use and site management, specific resource protections, spill prevention and response, waste management, and reclamation. Additionally, the proposed rule contains procedures for permit applications and Service review and approval. Finally, there are provisions for financial assurance (bonding), access fees, mitigation, change of operator, permit modification, and prohibitions and penalties. We incorporated public input received during the ANPR process to shape the proposed rule.
Proposed Permitting Approach
The proposed permitting process would allow the Service to ensure that refuge resources, as well as public health and safety, are protected to the greatest extent practicable. Under the proposed rule, the Service would require the following:
• New operations are by permit only
incorporated public input received during the ANPR process to shape the proposed rule.
Proposed Permitting Approach
The proposed permitting process would allow the Service to ensure that refuge resources, as well as public health and safety, are protected to the greatest extent practicable. Under the proposed rule, the Service would require the following:
• New operations are by permit only. Operators conducting new operations or modifying their existing operation in a manner that will have additional impacts on refuge resources beyond the scope, intensity, and/or duration of existing impacts must obtain an operations permit (special use or ROW permit) before commencing new or modified operations within a refuge. This requirement addresses exploration, drilling, production, enhanced recovery operations, transportation, plugging, and reclamation operations. We encourage operators to contact the Service early in the process so that the Service can provide suggestions to improve the application. Additionally, an operator will not be authorized to begin operations until the operator has received all other required State and Federal permits.
• Operations under an existing Service permit may continue under the terms of that permit as long as they comply with existing Federal, State, and local laws and regulations, and the general terms and conditions outlined in their permit and this rule. Operators would be required to obtain a new permit or amend their existing permit if they propose to conduct new operations or modify their existing operations ( i.e., propose activities outside the scope of their existing approval that would have
• Operations not under a Service permit and being conducted prior to the effective date of the final rule promulgating this subpart, or prior to a boundary change or establishment of a new refuge unit, would be considered “pre-existing operations” and may continue to operate as they have been as long as they comply with existing Federal, State, and local laws and regulations and
that would have
• Operations not under a Service permit and being conducted prior to the effective date of the final rule promulgating this subpart, or prior to a boundary change or establishment of a new refuge unit, would be considered “pre-existing operations” and may continue to operate as they have been as long as they comply with existing Federal, State, and local laws and regulations and the general terms and conditions outlined in this proposed rule. However, these operations would be required to obtain a permit if they propose to conduct new operations or modify their operations in a manner that will have additional impacts on refuge resources.
• All operators must have a permit for plugging and reclamation and comply with all Service reclamation standards.
• Wells drilled from outside refuges or on non-Federal inholdings to access non-Federal minerals would be exempt from these regulations. However, except where 43 CFR 36.10 controls any access on, across, or through federally owned or managed lands in Alaska, operators must comply with the applicable provisions of this subpart, which may require obtaining an operations permit for new access or amending an existing authorization for access.
The Service believes that this proposed permitting process is the best way to manage oil and gas operations and protect refuge resources on NWRS lands. The most effective way for the Service to avoid or minimize impacts is by using time, place, and manner stipulations. The “place” factor in the “time, place, and manner” equation is often most important in terms of ability to protect an environmental resource. The risks created by a poorly selected location cannot easily be overcome with even the best operational methods. Conversely, proper site selection can do much to mitigate the effects of accidents or environmentally unsound practices. The “time” factor restricts the timing of operations to remove or minimize impacts on resources that are only seasonally present
o protect an environmental resource. The risks created by a poorly selected location cannot easily be overcome with even the best operational methods. Conversely, proper site selection can do much to mitigate the effects of accidents or environmentally unsound practices. The “time” factor restricts the timing of operations to remove or minimize impacts on resources that are only seasonally present. The “manner” factor is the method in which oil and gas activities are conducted, using best management practices. Therefore, requiring a permit that contains such stipulations is the most effective way to avoid or minimize impacts of new operations.
Since new operations create the greatest additional impacts, proper site planning, timing restrictions, and best management practices can accomplish great improvements in resource protection. Existing operations with a special use or ROW permit would be allowed to continue their operations under the terms of that permit, because such stipulations have already been implemented in those permits. A permit requirement on an existing operation not currently under a permit could result in significant administrative and operational costs, similar to those of new operations, on both the Service and the operator. These costs could be disproportional to the environmental benefits gained where the operator's well has already been drilled and the area of operations (access route, well site, production facilities, and routes for gathering lines) has already been established. Many of the unnecessary impacts occurring from existing operations without permits can best be cost effectively addressed through ensuring adherence to existing Federal and State rules. Additionally, in this proposed rule, the Service would assimilate non-conflicting State oil and gas rules so that our Law Enforcement officers can ensure compliance with those requirements
already been established. Many of the unnecessary impacts occurring from existing operations without permits can best be cost effectively addressed through ensuring adherence to existing Federal and State rules. Additionally, in this proposed rule, the Service would assimilate non-conflicting State oil and gas rules so that our Law Enforcement officers can ensure compliance with those requirements. This approach to permitting allows the Service to focus its limited time and resources on those new operations that create the highest level of incremental impacts. Also, by requiring all operations to have a permit for plugging and reclamation, it ensures rehabilitation of habitat damaged by all operations.
When a well is drilled outside a refuge or on a non-Federal inholding, impacts to refuge resources are avoided or minimized to a great extent. Therefore, the Service's approach of exempting downhole aspects of these operations that occur within a refuge from the proposed regulations is intended to provide an incentive for operators to use directional drilling from a surface location not administered by the Service in order to reach their oil and gas rights under the refuge-administered surface estate. However, anytime an operator needs to physically cross Service land for access, including access to a non-Federal surface location, such as an inholding, to conduct operations then the operator must comply with the applicable provisions of this subpart (in Alaska, 43 CFR 36.10), including obtaining an operations permit for new access or modification of existing access.
Operating Standards
Refuges have sustained significant damages from leaks and spills, unplugged or inadequately plugged wells, abandoned equipment, and insufficient or no reclamation of refuge lands and resources. Avoidance of spills and similar problems is the best means of ensuring that taxpayers are not left with the costs of restoring refuge resources
ss or modification of existing access.
Operating Standards
Refuges have sustained significant damages from leaks and spills, unplugged or inadequately plugged wells, abandoned equipment, and insufficient or no reclamation of refuge lands and resources. Avoidance of spills and similar problems is the best means of ensuring that taxpayers are not left with the costs of restoring refuge resources. By incorporating new operating standards into the regulations, this should ensure that any future damages to refuge land and resources are minimized to the greatest extent possible.
Regulations based on performance-based standards do not grow stale over time and provide flexibility to resource managers and operators to achieve standards across various environments using new and evolving technology. In contrast, prescriptive regulations define specific requirements of time, place, and manner without considering how these measures achieve a desired level of resource protection or how they may apply in different environments. The Service examined other Federal and State oil and gas regulations and determined that the performance-based standards approach provided the most efficient means of successfully avoiding or minimizing the effects of oil and gas operations on refuge resources and visitor uses. A one-size-fits-all ( i.e., prescriptive) approach does not work due to the widely differing environments and national extent of refuges with oil and gas. The proposed, performance-based standards model has been successfully used by NPS for more than 35 years.
In developing and analyzing the proposed rule and alternatives, the Service found that the preponderance of impacts and risks of impacts to refuge resources associated with exploration and development of oil and gas emanate from surface activities. This holds true for operations that include the use of hydraulic fracturing
standards model has been successfully used by NPS for more than 35 years.
In developing and analyzing the proposed rule and alternatives, the Service found that the preponderance of impacts and risks of impacts to refuge resources associated with exploration and development of oil and gas emanate from surface activities. This holds true for operations that include the use of hydraulic fracturing. The Service found that well drilling and production operations that include the use of hydraulic fracturing have the same types of surface activities ( e.g., road and pad construction, tractor-trailer truck traffic, use of water, use of chemicals, use of large diesel-powered engines, generation of waste) as operations that do not include hydraulic fracturing. Hydraulic fracturing operations can, in some cases, increase the scope, intensity, and duration of activities commonly associated with oil and gas well drilling and completion. In context of this proposed rule, the term “hydraulic fracturing” means those
The Service notes that the Bureau of Land Management (BLM) has recently promulgated regulations addressing hydraulic fracturing on Federal and Indian lands at 43 CFR part 3160 (80 FR 16128, March 26, 2015). We carefully considered the recently promulgated BLM oil and gas regulations on hydraulic fracturing. The agencies take different approaches to operating standards, because of their differing statutory bases for regulating the exercise of oil and gas rights. Specifically, the BLM has regulatory authority over the development of the Federal mineral estate, including Federal oil and gas resources under Federal and Indian lands
recently promulgated BLM oil and gas regulations on hydraulic fracturing. The agencies take different approaches to operating standards, because of their differing statutory bases for regulating the exercise of oil and gas rights. Specifically, the BLM has regulatory authority over the development of the Federal mineral estate, including Federal oil and gas resources under Federal and Indian lands. Whereas, the Service regulations address private property rights within refuge units and are based on the directive of the NWRSAA for the NWRS “to administer a national network of lands and waters for the conservation, management, and where appropriate, restoration of the fish, wildlife, and plant resources and their habitats within the United States for the benefit of present and future generations of Americans.” Therefore, the Service's regulations are largely focused on avoiding or minimizing impacts to federally owned lands and resources of the NWRS to the maximum extent practicable by using the most technologically feasible, least damaging oil and gas development methods to protect refuge resources and uses.
As a result, BLM can and has appropriately set more prescriptive standards in its regulation, while the Service is proposing to set required non-prescriptive operating standards, similar to the NPS 9B regulations, which allow operators flexibility to design operations while still protecting refuge resources, uses, and visitor health and safety. For example, BLM's regulation at 43 CFR 3162.5-2 (Control of wells) sets a performance standard with regard to protection of usable quality water, and BLM also prescribes regulatory measures necessary to achieve and verify the performance standard (43 CFR 3162.3-3(e)). The Service's approach is to review an operator's submissions to determine if they are avoiding or minimizing impacts to the maximum extent practicable, and if not, to add terms and conditions in the permits to ensure that they do so
gard to protection of usable quality water, and BLM also prescribes regulatory measures necessary to achieve and verify the performance standard (43 CFR 3162.3-3(e)). The Service's approach is to review an operator's submissions to determine if they are avoiding or minimizing impacts to the maximum extent practicable, and if not, to add terms and conditions in the permits to ensure that they do so.
State Regulations
The Service's goal, reflected in this proposed rule, is to complement State regulatory programs to the benefit of the surface estate and the resources for which we are entrusted, while not compromising the ability of operators to develop their resource. The Service and State oil and gas agencies have fundamentally different missions. The Service's legal mandate is to conserve fish, wildlife, and plant resources and their habitats for the benefit of present and future generations. In contrast, State oil and gas regulations typically focus on the protection of mineral rights and “conservation” of the oil and gas resources ( i.e., minimizing waste of oil and gas resources). From a regulatory perspective, the Service must manage oil and gas operations in order to protect its surface resources to meet its mission and congressional mandate.
Most States provide for protection of surface and groundwater via well design requirements and oil pollution control measures. However, State programs vary widely with regard to protection of surface resources and surface use conflicts. In general, State oil and gas regulations do not address protections necessary for wildlife and its habitat. The Service conducted a review of State oil and gas regulations in 2013. Of the 43 States that have oil and gas regulations, all have requirements for plugging wells, but few have adequate requirements for removal of equipment and full reclamation of the site comparable to Service standards. Some State laws or regulations address impacts or damage to surface land owners; some do not
d its habitat. The Service conducted a review of State oil and gas regulations in 2013. Of the 43 States that have oil and gas regulations, all have requirements for plugging wells, but few have adequate requirements for removal of equipment and full reclamation of the site comparable to Service standards. Some State laws or regulations address impacts or damage to surface land owners; some do not. Some afford stronger protection to sensitive areas such as wildlife management areas; others do not. Some States address the use and closure of open pits; others do not. Bond requirements, oil spill cleanup and reporting, and fines differ considerably, as does the frequency of inspections of oil and gas exploration and production sites. Therefore, one of the issues that operators face is differing procedures and requirements from State to State. The proposed regulations are intended to provide a consistent set of procedures and operational standards for operations on refuges.
The intention of the Service's proposed regulations is to avoid or minimize potential procedural and operational duplication of State programs, while working cooperatively to achieve common objectives between the Service, States, and operators. For example, the proposed regulation includes a downhole operating standard for isolation and protection of subsurface (and surface) resources throughout the life of a well. The standard would inform the public and operators of the Service's responsibility for all its resources, including groundwater. However, the Service generally proposes not to otherwise regulate downhole activities. We welcome comments on whether, and to what extent, compliance with State regulations (as a general matter or with respect to particular States) is expected to provide adequate protection of groundwater and other subsurface resources
s of the Service's responsibility for all its resources, including groundwater. However, the Service generally proposes not to otherwise regulate downhole activities. We welcome comments on whether, and to what extent, compliance with State regulations (as a general matter or with respect to particular States) is expected to provide adequate protection of groundwater and other subsurface resources. Meeting operating standards specific to downhole activities, by compliance with State regulation, industry operating guidelines, or Service-identified requirements, also serves to protect surface resources by reducing the risks associated with well control and well construction and maintenance.
In the context of enforcing State oil and gas regulations, the Service would focus on noncompliance issues that have the potential to adversely affect refuge resources and visitor uses by assimilating non-conflicting State oil and gas law into our prohibited acts and penalties. Assimilation allows us to enforce on refuges State oil and gas requirements as a matter of Federal law. States may not have enough inspectors to ensure companies are meeting State standards. Louisiana, the State with the most non-Federal oil and gas production on refuge lands, recently reported that it lacks an adequate number of inspectors and its inspection rate is too low. Under this proposed rule, the Service would work cooperatively with States to ensure that operators on refuges are meeting both Service and State regulations that pertain to oil and gas operations.
Section-by-Section Analysis
§ 28.11 Purpose of Regulations
Proposed § 28.11 would be amended for a technical correction.
§ 29.32 Non-Federal Mineral Rights
Proposed § 29.32 would be amended to clarify the scope and general policy of subpart D
resources; visitor uses or experiences; and visitor and employee health and safety, as Congress prescribed as the mission of the NWRS at 16 U.S.C. 668dd(a)(4).
The purpose of proposed § 29.40(a) is to ensure operators use technologically feasible, least-damaging methods to remove non-Federal oil and gas resources from the subsurface of NWRS lands in order to protect and conserve refuge resources. Examples of technologically feasible, least-damaging methods include, but are not limited to, use of directionally drilling (slant drilling) to avoid surface impacts to important habitat, consolidating infrastructure (drilling multiple wells off a single pad) to reduce fragmentation, use of survey methods that do not require line of sight, or mat drilling in sensitive habitats.
Proposed § 29.40(b) provides that subpart D applies to operators who conduct or propose to conduct non-Federal oil and gas operations on the Service-administered surface estate of lands held in fee or less-than fee (excluding coordination areas) as well as to operations on any waters within the boundaries of the refuge. Because operations on and in the waters within refuge boundaries have the potential to broadly impact resources throughout the refuge, we are proposing that these regulations apply on and within waters subject to the jurisdiction of the United States located within that unit, including navigable waters and areas within their ordinary reach (up to the mean high-water line in places subject to the ebb and flow of the tide, or up to the ordinary high-water mark in other places that are navigable), irrespective of ownership of submerged lands, tidelands or lowlands, and jurisdictional status. Further, we note that Congress specifically defined the term refuges in the NWRSIA as including “waters, or an interest in land and waters” at 16 U.S.C. 668ee(11)
high-water line in places subject to the ebb and flow of the tide, or up to the ordinary high-water mark in other places that are navigable), irrespective of ownership of submerged lands, tidelands or lowlands, and jurisdictional status. Further, we note that Congress specifically defined the term refuges in the NWRSIA as including “waters, or an interest in land and waters” at 16 U.S.C. 668ee(11).
Operations are defined in proposed § 29.50 as “all existing and proposed functions, work, and activities in connection with the exercise of oil or gas rights not owned by the United States and located or occurring within a refuge. Operations include, but are not limited to: Access by any means to or from an area of operations; construction; geological and geophysical exploration; drilling, well servicing, workover, or recompletion; production; enhanced recovery operations; gathering (including installation and maintenance of flowlines and gathering lines); storage, transport, or processing of petroleum products; earth moving; excavation; hauling; disposal; surveillance, inspection, monitoring, or maintenance of wells, facilities, and equipment; reclamation; road and pad building or improvement; shot hole and well plugging and abandonment, and reclamation; and all other activities incident to any of the foregoing. Operations do not include reconnaissance surveys as defined in this subpart or oil and gas pipelines that are located within a refuge under authority of a deeded or other right-of-way.”
These regulations are not intended to apply to operations on neighboring private lands or non-Federal surface estates within refuge boundaries. As discussed previously, if an operator must physically cross Service lands, the operator must obtain an operations permit and comply with other applicable provisions for that access
ted within a refuge under authority of a deeded or other right-of-way.”
These regulations are not intended to apply to operations on neighboring private lands or non-Federal surface estates within refuge boundaries. As discussed previously, if an operator must physically cross Service lands, the operator must obtain an operations permit and comply with other applicable provisions for that access. Use of aircraft, including, but not limited to, airplanes, helicopters, and unmanned aircraft vehicles that do not land on, or are not launched from, refuge-administered surface estate land or waters, is not subject to these regulations.
Proposed § 29.40(c) of this subpart would acknowledge that the intent of the proposed rule is to reasonably regulate such activities, but not to result in a taking of private property. Although we would place refuge-protecting mitigation measures on proposed operations, the Service does not intend that implementation of these regulations would result in a denial of access to prospective operators to exercise their non-Federal oil and gas rights. We would work with operators to ensure they have reasonable access to their operations and that refuge resources and values are protected without resulting in a taking in violation of the Fifth Amendment of the U.S. Constitution.
Proposed § 29.41 clarifies this subpart applies to operators if they conduct or propose to conduct a non-Federal oil or gas operation within a refuge.
Proposed § 29.42 clarifies what authorization is necessary to conduct operations on NWRS lands. The regulations at § 29.42(a) would require that all operators must demonstrate “up front” that they hold a valid existing right to conduct operations within a refuge. Until the operator demonstrates a valid existing right to conduct operations, the operator may not operate within a refuge and we will not undertake a formal review of the operator's permit application
duct operations on NWRS lands. The regulations at § 29.42(a) would require that all operators must demonstrate “up front” that they hold a valid existing right to conduct operations within a refuge. Until the operator demonstrates a valid existing right to conduct operations, the operator may not operate within a refuge and we will not undertake a formal review of the operator's permit application.
Proposed § 29.42(b) would require operators with a new oil and gas operation to obtain a temporary access permit to conduct reconnaissance surveys and/or an operations permit to conduct drilling or production within a refuge. This permit requirement would ensure that new operations on NWRS lands use best management practices and are conducted in a time, place, and manner that avoid or minimize potential impacts to refuge resources to the maximum extent practicable.
Proposed § 29.42(c) would clarify that for refuge units in Alaska, access to oil and gas rights within any refuge would continue to be governed by title XI of the Alaska National Interest Lands Conservation Act (ANILCA; 16 U.S.C. 410hh-410hh-5, 16 U.S.C. 3101 et seq. , 43 U.S.C. 1601 et seq. ), and the Department's implementing regulations and standards found at 43 CFR part 36 and 50 CFR part 29 subpart B. This includes authorization to charge access fees, as well as penalties for any violations of permits issued under these regulations. However, where the proposed rule does not conflict with these provisions, regulations, and standards, the proposed rule will apply to operations in Alaska. For example, the operating standards at proposed §§ 29.110-29.118 and the provisions regarding well plugging at proposed §§ 29.180-29.181 would be incorporated into an operator's ROW permit. Additionally, the prohibited acts and penalties at proposed § 29.190 would apply where they do not conflict
h these provisions, regulations, and standards, the proposed rule will apply to operations in Alaska. For example, the operating standards at proposed §§ 29.110-29.118 and the provisions regarding well plugging at proposed §§ 29.180-29.181 would be incorporated into an operator's ROW permit. Additionally, the prohibited acts and penalties at proposed § 29.190 would apply where they do not conflict.
Proposed § 29.43 would authorize an operator who currently holds an approved permit to continue operations, subject to the applicable provisions of that permit, until they propose to conduct new operations or modify existing operations.
If an operator does not hold an existing special use permit but is conducting an operation prior to the effective date of the final rule, proposed § 29.44 would authorize the operator to continue with this operation in accordance with local, State, and Federal laws and regulations. However, these operations would need to comply with proposed §§ 29.60 through 29.63, which outline additional information requirements, prohibitions, and reclamation requirements, as well as the requirements that, before conducting a new operation or modifying a pre-existing operation, an operator must obtain an operations permit in accordance with §§ 29.90 through 29.97.
§ 29.50 Definitions
The proposed rule would establish and organize definitions for terms commonly used throughout the regulations.
§§ 29.60-29.64 Pre-Existing Operations
Proposed § 29.60 defines pre-existing operations as those being conducted under local, State, and Federal laws and regulations and without an approved permit from the Service as of the effective date of a final rule, or prior to a boundary change or establishment of a new refuge unit. These operations may continue without an operations permit subject to the terms and conditions of this section. Proposed operations that become located within a refuge unit as the result of a boundary adjustment would be subject to the same process
hout an approved permit from the Service as of the effective date of a final rule, or prior to a boundary change or establishment of a new refuge unit. These operations may continue without an operations permit subject to the terms and conditions of this section. Proposed operations that become located within a refuge unit as the result of a boundary adjustment would be subject to the same process.
Proposed § 29.61(a)-(d) describes the information for pre-existing operations that would be required to be submitted to the Service to be in compliance with the rule. For a new oil and gas operation within a refuge, we would require an operator to submit the information necessary for us to approve the least-damaging locations for its access route, drilling site, production facilities, and gathering lines routes. However, for pre-existing operations, the operator's well has already been drilled and the area of operations (access route, well site, production facilities, and routes for gathering lines) has already been established. Therefore, under proposed § 29.61, within 90 days of the effective date of a final rule promulgating this subpart, operators would have to provide the Service with the information described in this section, including ownership documentation, contact information, a scaled map clearly delineating the existing area of operations, and copies of all relevant plans and permits. This information is needed for future monitoring of the pre-existing operations to ensure compliance with existing standards (local, State, Federal).
The proposed regulations at § 29.62(a) would require the operator to obtain an operations permit if the operator enters a new phase of operations, such as when an operator ends production operations and proceeds to well plugging and final reclamation. Proposed § 29.62(b) would require the operator to obtain an operations permit if the Service determines that the operator is modifying a pre-existing operation
d regulations at § 29.62(a) would require the operator to obtain an operations permit if the operator enters a new phase of operations, such as when an operator ends production operations and proceeds to well plugging and final reclamation. Proposed § 29.62(b) would require the operator to obtain an operations permit if the Service determines that the operator is modifying a pre-existing operation. Modifying is defined at proposed § 29.50 as “conducting new activities that are outside the scope of your existing operations in a manner that has additional impacts on refuge resources, visitor uses, refuge administration, or human health and safety beyond the scope, intensity, and/or duration of existing impacts. If an operator is considering altering their operation in a manner that may result in additional impacts to refuge resources, they should consult with the Service to determine whether proposed changes would constitute a modification. Examples of a modification include drilling additional wells from the same pad, creating additional surface disturbance ( e.g., expanding the footprint of a well pad, realigning a road), or converting a natural gas well into a wastewater disposal well, as these modifications will have impacts beyond the scope, intensity, and/or duration of existing impacts. This provision is not intended to apply to minor actions, such as repositioning of surface facilities within the current footprint of pre-existing operations, minor changes in color schemes, or minor, non-routine maintenance actions.
Proposed § 29.63 ensures that pre-existing operations will be reclaimed to Service standards at proposed § 29.117(d). Operators must comply with the proposed reclamation requirements, including obtaining an operations permit for all reclamation activities
facilities within the current footprint of pre-existing operations, minor changes in color schemes, or minor, non-routine maintenance actions.
Proposed § 29.63 ensures that pre-existing operations will be reclaimed to Service standards at proposed § 29.117(d). Operators must comply with the proposed reclamation requirements, including obtaining an operations permit for all reclamation activities.
Under proposed § 29.64, pre-existing operations would have to comply with the general terms and conditions at proposed §§ 29.120 and 29.121, as well as proposed §§ 29.170(a) (change of operator), 29.180-29.181 (well plugging), 29.190 (prohibited acts and penalties), and 29.200 (appeals). Suspensions would not be necessary if operators are meeting Service standards.
§§ 29.70-29.73 Temporary Access Permits
Proposed §§ 29.70-29.73 outline the process to obtain a temporary access permit. The temporary access permit is a special use permit that authorizes an operator to conduct reconnaissance surveys. Proposed § 29.71 identifies the information necessary for the Service to evaluate the operator's proposal to conduct reconnaissance surveys. This includes a brief description of intended operations so we can determine the operator's reconnaissance survey needs. Proposed § 29.72 describes the process for us to review the operator's temporary access permit application for completeness. Under proposed § 29.73, a temporary access permit would be issued for reconnaissance surveys for a period not to exceed 60 calendar days, but may be extended for a reasonable additional period when justified by an operator.
§ 29.80 Accessing Oil and Gas Rights From a Non-Federal Surface Location (Including Inholdings)
As discussed above, operators are exempt from the regulations if they directionally drill from a non-Federal surface location, including on non-Federal inholdings, and do not require physical access across Service lands to reach a bottom hole located within refuge boundaries
ustified by an operator.
§ 29.80 Accessing Oil and Gas Rights From a Non-Federal Surface Location (Including Inholdings)
As discussed above, operators are exempt from the regulations if they directionally drill from a non-Federal surface location, including on non-Federal inholdings, and do not require physical access across Service lands to reach a bottom hole located within refuge boundaries. Proposed § 29.80 identifies the information an operator would be encouraged to submit to the Service to ensure that the Service has the necessary information to contact operators in case of an emergency or if unanticipated damages to refuge resources occur. If the operator needs to physically cross Service land for access to non-Federal lands, the operator would be required to comply with applicable provisions of this subpart only for that access, including obtaining an operations permit for any new access or a modification of existing access.
§§ 29.90-29.97 Operations Permit: Application
The proposed regulations require early collaboration in the planning process to provide operators guidance on information requirements, alternative areas of operations locations, and potential mitigation and avoidance measures.
The proposed rule at §§ 29.90-29.97 organizes information requirements for each type of operation. Further discussion of the specific information proposed to be collected can be found under the section below, Paperwork Reduction Act of 1995 (PRA).
Proposed § 29.90 would require operators to submit an operations
Proposed § 29.91 urges operators to have a pre-application meeting with the Service to allow for an early exchange of information, including discussion of Service and operator concerns, as well as avoid delays in the application process
d to be collected can be found under the section below, Paperwork Reduction Act of 1995 (PRA).
Proposed § 29.90 would require operators to submit an operations
Proposed § 29.91 urges operators to have a pre-application meeting with the Service to allow for an early exchange of information, including discussion of Service and operator concerns, as well as avoid delays in the application process. At this meeting, operators are encouraged to provide information on oil and gas ownership (including deeds or other relevant information which the applicant believes would control the applicability of the regulations under this subpart to the applicant's operations), operation schedules, contact information for company officials and their contractors, map of the proposed area of operations, description of access and transportation plans, and a description of the survey methodology for refuge resources, such as wildlife or cultural resources.
Proposed § 29.92 clarifies that operators do not need to include previously submitted information in their operations permit application, provided such information is on file with the Service, still current, and accurate. Operators may also submit copies of documents submitted to other agencies to meet the information requirements of their operations permit application.
Proposed § 29.93 clarifies that the operator only needs to submit the information for the operation for which they are seeking approval.
Proposed § 29.94 lists information requirements common to all operations, including information about existing conditions of the area of operations, proposed new surface uses, use of water, management of waste including flowback fluids from hydraulic fracturing operations, mitigation actions, alternatives considered, a spill control and emergency preparedness plan, and proposed reclamation.
Proposed § 29.95 identifies the additional information a geophysical operator would need to submit to the Service
g conditions of the area of operations, proposed new surface uses, use of water, management of waste including flowback fluids from hydraulic fracturing operations, mitigation actions, alternatives considered, a spill control and emergency preparedness plan, and proposed reclamation.
Proposed § 29.95 identifies the additional information a geophysical operator would need to submit to the Service.
Proposed § 29.96 identifies the additional information a drilling operator would need to submit to the Service.
Proposed § 29.97 identifies the additional information a production operator would need to submit to the Service.
§§ 29.100-29.104 Operations Permit: Application Review
The proposed regulations at §§ 29.100-29.104 establish a two-stage permit application review process (an initial review and a formal review), provide realistic timeframes to provide notice back to an operator, and consolidate the final decisions the Service can make on an operator's permit application.
Proposed § 29.100 provides general information about how the Service will review an operator's application, which is an initial review to ensure that information is complete followed by formal review. Proposed § 29.101 describes the Service's initial review of an operator's permit application. During initial review, the Service would determine whether the applicant has supplied all information necessary for the Service to evaluate the operation's potential effects to federally owned or administered lands, waters, or resources of Service units; visitor uses or experiences; or visitor or employee health and safety. The Service would respond to an applicant within 30 days and state whether the information contained in the permit application is complete, identify the additional information required for the application to be complete, or notify the applicant that the Service needs more time to complete review. Once a permit application is complete, the Service conducts a formal review
mployee health and safety. The Service would respond to an applicant within 30 days and state whether the information contained in the permit application is complete, identify the additional information required for the application to be complete, or notify the applicant that the Service needs more time to complete review. Once a permit application is complete, the Service conducts a formal review. For operators accessing oil and gas rights within Alaska refuges, proposed § 29.101(c) ensures that the regulations under title XI of ANILCA apply.
During the formal review process, under proposed §§ 29.102-29.103, the Service would evaluate the potential impacts of the proposed operations on refuge resources in compliance with applicable Federal laws, such as the National Environmental Policy Act of 1969 (NEPA, 42 U.S.C. 4321 et seq. ); the Endangered Species Act of 1973, as amended (ESA, 16 U.S.C. 1531 et seq. ); the Migratory Bird Treaty Act (MBTA, 16 U.S.C. 703-712); and the National Historic Preservation Act of 1966 (NHPA, 16 U.S.C. 470 et seq. ). Under proposed § 29.102(b), the Service would identify any additional operating conditions that would apply to the operator's approved application.
Operators conducting non-Federal oil and gas operations in refuge units must also comply with all applicable non-conflicting State and local laws (proposed 50 CFR 29.120). As discussed above, it is the policy of the Service to be consistent with and complementary to State law to the maximum extent possible. Operators would still be required to obtain State-issued permits where applicable.
Additionally, proposed § 29.103(a) requires that, before approving an operations permit, the Service determine that the operator will use technologically feasible, least-damaging methods that provide for protection of the refuge's resources and public health and safety.
Proposed § 29.103(b) includes two prerequisites to approval: (1) Submittal of adequate financial assurance, and (2) proof of adequate liability insurance
9.103(a) requires that, before approving an operations permit, the Service determine that the operator will use technologically feasible, least-damaging methods that provide for protection of the refuge's resources and public health and safety.
Proposed § 29.103(b) includes two prerequisites to approval: (1) Submittal of adequate financial assurance, and (2) proof of adequate liability insurance.
Proposed § 29.104 describes the actions the Service will take on the operations permit application. Proposed § 29.104(a) establishes a general 180-day timeframe to complete its formal review. These decisions require time to adequately analyze an operator's proposal, work with the operator on a design that incorporates acceptable avoidance and mitigation measures, and compliance with the associated Federal statutory responsibilities such as NEPA, ESA, and NHPA. The proposed regulations would allow for a longer period of time, if the parties agree to it, or if the Service determines that it needs more time to comply with applicable laws, executive orders, and regulations. The Service seeks comment on whether 180 days is reasonable and any incremental impacts on operators.
For operations that need to access inholdings in Alaska, proposed § 29.104(b) provides the timelines for ANILCA title XI/Access (43 CFR part 36).
Proposed § 29.104(c) would establish two final actions: (1) Approved, with or without conditions; or (2) Denied, and the justification for the denial. The Service would notify the operator in writing of the final action. If approved, this written notification constitutes the Service's authorization to conduct activities.
§§ 29.110-29.119 Operating Standards
Proposed §§ 29.110-29.119 would clarify the purpose and function of operating standards
ons: (1) Approved, with or without conditions; or (2) Denied, and the justification for the denial. The Service would notify the operator in writing of the final action. If approved, this written notification constitutes the Service's authorization to conduct activities.
§§ 29.110-29.119 Operating Standards
Proposed §§ 29.110-29.119 would clarify the purpose and function of operating standards. As discussed above, the Service would set performance-based operating standards to allow operators the flexibility to design their proposed operation using the latest technological innovations with an overall objective of using technologically feasible, least-damaging methods that will best protect refuge
The proposed rule would organize operating standards into the following categories: §§ 29.111 through 29.116 are operating standards that apply to all operations; § 29.117 contains operating standards that apply to reclamation; § 29.118 contains operating standards that apply to geophysical operations; and § 29.119 contains operating standards that apply to drilling and production operations, including enhanced recovery operations. Organizing the standards in this manner would allow the Service and the operator to readily understand which operating standards are applicable to the particular type of proposed operation.
Proposed § 29.111 addresses general facility design and management standards. These include the extent of surface disturbance, spill control, waste management, air emissions, and control of noxious and invasive species.
Proposed § 29.111(a) would ensure that either existing or newly created surface disturbance is kept to the minimum necessary for the safe conduct of operations.
Proposed § 29.111(b) would require installation and maintenance of secondary containment for all equipment and facilities using or containing contaminating substances such as oil, brine, formation water, or well stimulation chemicals
.
Proposed § 29.111(a) would ensure that either existing or newly created surface disturbance is kept to the minimum necessary for the safe conduct of operations.
Proposed § 29.111(b) would require installation and maintenance of secondary containment for all equipment and facilities using or containing contaminating substances such as oil, brine, formation water, or well stimulation chemicals. This could include constructing dikes around tank batteries to contain spills, fencing off the area to exclude livestock and large wildlife to prevent them from rubbing against valves or pipes and causing spills, stormproofing buildings used for storing hazardous chemicals, or using containment tubs or trays underneath chemical containers to catch drips or spills.
Proposed § 29.111(c) would require maintaining waste in as small an area as feasible. This could include a focus on practices that minimize the generation of waste, but could also include a waste containment system, waste disposal schedule, and identification of responsible parties if waste is not properly confined.
Proposed § 29.111(d) would require adherence to all State and Federal air quality standards.
Proposed § 29.111(e) would require operators to construct, maintain, and use roads to minimize fugitive dust emissions. Many methods are available to minimize fugitive dust emissions, such as vehicle speed limits (< 25 mph), applying water or other refuge-approved dust control treatment, and constructing roads to a minimum refuge-approved design standard.
Proposed § 29.111(f) would require operators to minimize emissions of air pollutants and releases or flaring of gas. Some States require additional air quality devices be installed ( e.g., Colorado's secondary burn units) or installing additional scrubbers in areas not meeting attainment goals.
Proposed § 29.111(g) would require operators to minimize leakage of air pollutants and hydrocarbons to the atmosphere
11(f) would require operators to minimize emissions of air pollutants and releases or flaring of gas. Some States require additional air quality devices be installed ( e.g., Colorado's secondary burn units) or installing additional scrubbers in areas not meeting attainment goals.
Proposed § 29.111(g) would require operators to minimize leakage of air pollutants and hydrocarbons to the atmosphere.
Proposed § 29.111(h) would require operators to control the introduction of noxious and invasive species on their area of operations. This could include inspecting all vehicles prior to their arrival on the refuge, removing noxious weeds from equipment and vehicles, using only approved native species in reclamation seed mixes, and immediately implementing interim reclamation in order to minimize the potential for the spread of invasive species in disturbed soils.
Proposed § 29.111(i) would require operators to maintain a safe distance ( i.e., 500 feet) from any refuge structure or facility used by refuges for interpretation, public recreation, or administration in order to protect federally owned or administered structures or facilities, visitor uses or experiences, or visitor or employee health and safety. This distance may increase or decrease depending on the situation.
The Service is proposing specific standards at § 29.112 that would address fish and wildlife protection.
Proposed § 29.112(a) would require that operators and contractors abide by all refuge regulations to protect fish, wildlife, and plants. Our regulations in title 50, chapter I, subchapter C of the Code of Federal Regulations provide general and specific refuge regulations, such as hunting and fishing, safety, and recreation, among others.
Proposed § 29.112(b) would require that operators, as well as their employees and contractors, be educated and informed by refuge staff of applicable wildlife protection practices
e, and plants. Our regulations in title 50, chapter I, subchapter C of the Code of Federal Regulations provide general and specific refuge regulations, such as hunting and fishing, safety, and recreation, among others.
Proposed § 29.112(b) would require that operators, as well as their employees and contractors, be educated and informed by refuge staff of applicable wildlife protection practices. This would include information such as obeying all posted speed limits, avoiding closed refuge areas, and training staff on what constitutes wildlife violations.
Proposed § 29.112(c) would require operators to provide a safe environment for fish and wildlife free from physical and chemical hazards. This could include maintaining equipment in good condition, immediately reporting and cleaning all spills, and proactive management to prevent spills.
Proposed § 29.112(d) would require that operators comply with all seasonal and other restrictive wildlife buffers. This could include following timing buffers ( e.g., avoid areas between the hours of 6 p.m. through 6 a.m.), seasonal buffers ( e.g., avoid areas between November 15 and April 15), or distance buffers ( e.g., avoid human presence within 1/4 mile of certain nest sites).
The Service is proposing specific standards at § 29.113 that would address hydrologic resources.
Proposed § 29.113(a) would require operators to maintain a safe distance ( i.e., 500 feet) from all waters to reduce the risk of contaminating those waters with oil and gas-related fluids. This distance may increase or decrease depending on the situation. Often distance and slope are the only buffers that prevent contaminants from reaching waterways.
Proposed § 29.113(b) would require operators to construct facilities in a manner to maintain hydrologic movement and function. This could include installing structures to divert runoff away from well sites, not siting facilities in floodplains, or installing culverts in access roads to maintain natural drainage patterns
lope are the only buffers that prevent contaminants from reaching waterways.
Proposed § 29.113(b) would require operators to construct facilities in a manner to maintain hydrologic movement and function. This could include installing structures to divert runoff away from well sites, not siting facilities in floodplains, or installing culverts in access roads to maintain natural drainage patterns.
Proposed § 29.113(c) would require operators to maintain the existing water quality of the site. This could include applying spill prevention, containment, and countermeasures (SPCC) practices to prevent chemical, oil, or brine leaks and spills from contaminating surface water, and implementing erosion control measures to prevent or minimize siltation of surface waters.
Proposed § 29.113(d) would require operators to maintain natural levels of erosion and sedimentation. This could include recontouring and reseeding disturbed areas, implementing larger buffers away from waterways, building roads and pads according to refuge specifications, and installing water bars and right-sized culverts.
The Service is proposing specific standards at § 29.114 that would address safety.
Proposed § 29.114(a) would require operators to maintain their area of operations in a manner that avoids or minimizes the cause or spread of fire. This could include maintaining fire breaks around facilities and equipment, and not driving across grassy areas during hot, dry conditions.
Proposed § 29.114(b) would require operators to maintain all facilities and operations to prevent physical and chemical hazards to refuge resources, visitors, and employees. This could include storing chemicals onsite, locking storage buildings and sheds, and substituting hazardous chemicals with non-hazardous ones.
Proposed § 29.114(c) would require operators to provide site security to prevent hazardous conditions from affecting visitors or employees
ll facilities and operations to prevent physical and chemical hazards to refuge resources, visitors, and employees. This could include storing chemicals onsite, locking storage buildings and sheds, and substituting hazardous chemicals with non-hazardous ones.
Proposed § 29.114(c) would require operators to provide site security to prevent hazardous conditions from affecting visitors or employees. This could include fencing around the facility, pump jack, well pad, or well head; locking buildings; or posting guards.
The Service is proposing specific standards at § 29.115 that would address lighting and visual impacts.
Proposed § 29.115(a) would require operators to reduce effects to night skies by minimizing light emissions from their operations. This could include using the minimum lighting necessary for site safety, and directing lights downward to minimize the effect on night skies.
Proposed § 29.115(b) would require operators to minimize the contrast between their facilities and the surrounding environment by blending their operations with the background to minimize their appearance. This could include painting facilities, equipment, and buildings to blend with the background; siting facilities in low areas beyond hills or rises; using topography to help screen facilities; and using road and well pad materials similar in composition and color to minimize their appearance ( e.g., using native materials for roads and well pads).
The Service is proposing specific standards at § 29.116 that would address noise reduction. This could include sound abatement techniques, such as hospital-grade mufflers, constructing sound buffers ( e.g., hay bales around a drilling rig), and reducing speed limits to reduce the effects of noise on wildlife and visitors.
The Service is proposing specific standards at proposed § 29.117 for reclamation and protection measures required of all operators
that would address noise reduction. This could include sound abatement techniques, such as hospital-grade mufflers, constructing sound buffers ( e.g., hay bales around a drilling rig), and reducing speed limits to reduce the effects of noise on wildlife and visitors.
The Service is proposing specific standards at proposed § 29.117 for reclamation and protection measures required of all operators.
Proposed § 29.117(a) would require the operator to promptly clean up and remove contaminating substances from their area of operations in accordance with all applicable Federal, State, and local laws.
Proposed § 29.117(b) would require partial reclamation of areas no longer necessary for their operations. It would also require an operator to initiate reclamation within 6 months of completion of authorized operations.
Proposed § 29.117(c) would require an operator to protect all survey markers.
Proposed § 29.117(d) provides steps that must be accomplished to re-establish the ecological function of the site.
The Service is proposing specific standards at proposed § 29.118 for operators proposing geophysical operations.
Proposed § 29.118(a) directs operators to use surveying methods that minimize the need for vegetative trimming and removal. This could include avoiding use of line-of-sight surveying methods.
Proposed § 29.118(b) protects pipelines, telephone lines, railroad tracks, roads, power lines, water wells, oil and gas wells, oil- and gas-production facilities, and buildings. This could include using industry-accepted minimum safe-offset distances.
Proposed § 29.118(c) directs operators to match equipment to the environment to minimize impacts. This could include using boat-mounted drilling rigs in marshy habitats, putting helicopter equipment into areas where impacts would be difficult to mitigate with tracked vehicles, or conducting operations when ground is frozen or sensitive species are not present
epted minimum safe-offset distances.
Proposed § 29.118(c) directs operators to match equipment to the environment to minimize impacts. This could include using boat-mounted drilling rigs in marshy habitats, putting helicopter equipment into areas where impacts would be difficult to mitigate with tracked vehicles, or conducting operations when ground is frozen or sensitive species are not present.
Proposed § 29.118(d) describes how operators are to reclaim sites when using shot holes as the energy source. This could include using biodegradable charges, plugging shot holes, and leaving sites clean without impeding surface reclamation or posing a hazard.
Proposed § 29.118(e) clarifies that, for geological and geophysical exploration for oil and gas within the coastal plain of the Arctic National Wildlife Refuge, the regulations at 50 CFR part 37 apply.
The Service is proposing specific standards at proposed § 29.119 for operators proposing drilling and production operations.
Proposed § 29.119(a) establishes drilling standards, including waste management, such as using containerized mud systems, avoiding earthen pits, and using sound well control equipment and practices. Well design and operation must provide for isolation and protection of usable water zones. Drill cuttings must be disposed of at an approved site off-refuge.
Proposed § 29.119(b) establishes standards for production operations including monitoring and maintenance of equipment, proper site security, and removal of unnecessary equipment.
§§ 29.120-29.122 General Terms and Conditions
The Service proposes a “General Terms and Conditions” section to summarize those terms and conditions that apply to all operations.
Proposed § 29.120(a) outlines the operating standards that all operators must comply with and states that those standards for new operations would be incorporated in the terms and conditions of their operations permit
§§ 29.120-29.122 General Terms and Conditions
The Service proposes a “General Terms and Conditions” section to summarize those terms and conditions that apply to all operations.
Proposed § 29.120(a) outlines the operating standards that all operators must comply with and states that those standards for new operations would be incorporated in the terms and conditions of their operations permit. This section also notifies an operator that violation of these terms and conditions can lead to fines and/or prosecution.
The proposed § 29.120(b) holds operator's contractors or subcontractors accountable for compliance with all requirements of this subpart.
Under proposed § 29.120(c), the Service would retain a right to charge fees for processing and administering permit applications if they prove to be a significant workload. The Service may still require reimbursement for costs incurred in processing applications, whether or not the application is withdrawn or a permit is issued.
Proposed § 29.120(d) restricts the use of surface water or groundwater on NWRS lands. If not covered by a State-held water right, any use of water within a refuge must be approved by the Service upon the Service's determination that it will not impair any refuge resource or use.
Proposed § 29.120(e) would require operators to provide a statement under penalty of perjury, signed by an official authorized to legally bind the company, that the operations will comply with applicable Federal, State, and local laws and regulations and that the information provided to the Service is true and correct.
Proposed § 29.120(f) would require an operator to indemnify and hold harmless the United States and its employees from all liability resulting from activities conducted under an operations permit.
Proposed § 29.120(g) would require an operator to take all reasonable precautions to avoid, minimize, rectify, or reduce overall impacts of the proposed operations
to the Service is true and correct.
Proposed § 29.120(f) would require an operator to indemnify and hold harmless the United States and its employees from all liability resulting from activities conducted under an operations permit.
Proposed § 29.120(g) would require an operator to take all reasonable precautions to avoid, minimize, rectify, or reduce overall impacts of the proposed operations. The operator may be required to mitigate for any impacts to refuge resources and lost uses by creating or restoring habitat, or providing other forms of compensation under applicable State laws.
Proposed § 29.120(h) holds operators responsible for unauthorized or unanticipated damages because of their operations, and actions of their employees or contractors, and reclamation of damages caused by operations as a result of weather, fire, earthquakes, or similar uncontrolled actions. For example, an operator would remain responsible for removing a tank from a marsh after a hurricane blows it off site.
Because monitoring and reporting requirements apply, in varying degrees, to all operations, the Service is proposing to include monitoring and reporting requirements under general terms and conditions at proposed § 29.121.
Proposed § 29.121(a) would require an operator to provide the Service access to
Proposed § 29.121(b) would allow the Service to require that operators hire third-party contractors (third-party monitor) when necessary to ensure compliance and protect refuge resources and values. The use of third-party monitors helps ensure that the Service receives unbiased, reliable, and timely monitoring information demonstrating an operator's compliance with its permit. This proposed section also describes the criteria that the Service would consider when making the decision to require an operator to pay for a third-party monitor. The criteria could include an operator's proposal for self-monitoring
rd-party monitors helps ensure that the Service receives unbiased, reliable, and timely monitoring information demonstrating an operator's compliance with its permit. This proposed section also describes the criteria that the Service would consider when making the decision to require an operator to pay for a third-party monitor. The criteria could include an operator's proposal for self-monitoring. The third-party monitor would report directly to the Service to ensure oversight and accountability and prevent the appearance of a conflict of interest. Use of third-party monitors is a common industry practice.
Proposed § 29.121(c) would require operators to report any injuries to or mortality of fish, wildlife, or endangered or threatened plants resulting from their operations to the Service within 24 hours of any incident. Such occurrences, regardless of the context, should be reported as soon as possible, but no later than 24 hours after the incident. This could include a gas release resulting in wildlife mortality, collisions with company vehicles, or entrapment in a facility or on a well pad. This requirement is in addition to any report required by other applicable Federal or State laws.
Proposed § 29.121(d) would require operators to report any accidents involving serious personal injury or death, and of any fires or spills on the site immediately after the accident occurs. Operators must also provide a full written report to the Service within 90 days of the incident explaining what happened, why it happened, who was involved, the results, and how the company intends to prevent similar incidents in the future. This requirement is in addition to any report required by other applicable Federal or State laws.
Proposed § 29.121(e) would require that the operator submit any information requested by the Service that is necessary to verify compliance with either a provision of the operations permit or this subpart
involved, the results, and how the company intends to prevent similar incidents in the future. This requirement is in addition to any report required by other applicable Federal or State laws.
Proposed § 29.121(e) would require that the operator submit any information requested by the Service that is necessary to verify compliance with either a provision of the operations permit or this subpart. To ease any burden, the proposed rule would allow an operator to submit reports that the operator has already submitted to a State or other Federal agency to meet this reporting requirement.
Proposed § 29.121(f) would require that the operator provide public disclosure of chemicals used in hydraulic fracturing operations using the FracFocus Chemical Disclosure Registry or another approved database system.
Proposed § 29.122 provides that an operations permit is valid for the period of the operation. However, a permit may be modified by an operator or the Service, as outlined in proposed § 29.160.
§§ 29.140-29.142 Access Fees
Operators may need to cross Federal lands where they have no pre-existing property or other legal right to do so. Under proposed § 29.140, operators would have to obtain permission from the Service for such access across NWRS lands. Proposed § 29.140(b) clarifies that access in Alaska is governed by regulations and standards at 43 CFR part 36. This would include access fees and violations of permits issued under those regulations. Proposed § 29.141 provides that the Service may charge the operator a fee for such additional access. The NPS, Forest Service, and Bureau of Land Management (BLM), as well as private landowners, already charge similar fees for such access. Such fees are based on the fair market value of the use of Federal property outside the scope of their property right.
Proposed § 29.141(a) would require operators to pay a fee for new access ( e.g., roads or gatherings lines) across Federal lands not within the scope of their oil and gas right
of Land Management (BLM), as well as private landowners, already charge similar fees for such access. Such fees are based on the fair market value of the use of Federal property outside the scope of their property right.
Proposed § 29.141(a) would require operators to pay a fee for new access ( e.g., roads or gatherings lines) across Federal lands not within the scope of their oil and gas right. The Service would set the fee amount using generally accepted practices. For example, the Service could set fees consistent with current Service regulations regarding fees for access, calculate fees using the BLM's Linear Rights-of-way Fee Schedule, or use an appraisal.
Under proposed § 29.141(b), the Service would retain the right to charge a fee for access on an existing road consistent with a posted fee schedule. This fee would be used to reflect any increased maintenance costs on these roads when compared to the normal use by the general public or refuge staff, such as purchasing fuel for a road grader, gravel for a road, or maintaining refuge equipment used in road maintenance.
Proposed § 29.141(c) would give the Service the ability to allow the operator to undertake in-kind services to offset fees to the extent permitted by law.
Proposed § 29.142 would clarify that, while the Service will not charge an operator a fee for emergency access to their operation, the operator would remain liable for any damages caused to refuge resources as a result of such emergency access.
§§ 29.150-29.154 Financial Assurance
The current regulations at 50 CFR 29.32 do not require financial assurance for well plugging and reclamation. In the event of a company default, the Service must find the funds to plug wells and restore the site ( i.e. , remove well pad, roads and surface equipment, and restore habitat)
amages caused to refuge resources as a result of such emergency access.
§§ 29.150-29.154 Financial Assurance
The current regulations at 50 CFR 29.32 do not require financial assurance for well plugging and reclamation. In the event of a company default, the Service must find the funds to plug wells and restore the site ( i.e. , remove well pad, roads and surface equipment, and restore habitat). Proposed § 29.150 would require an operator to file an acceptable method of financial assurance as a condition of the operations permit in order to ensure that adequate funds will be available to carry out the plugging and reclamation requirements of the operations permit if an operator becomes insolvent or defaults on his/her obligations. One example of an acceptable method of financial assurance is a performance bond. The assurance is intended to ensure that funding is available for restoration of the site, removal of equipment and contaminated soil, and revegetation of the area, in the event an operator defaults on their obligations under the permit. This financial assurance is in addition to any financial assurance required by any other Federal or State regulatory authority.
Proposed § 29.151(a) would make the financial assurance amount equal to the cost of plugging and abandonment and reclamation, as conducted by a third-party contractor. It also provides that, if the plugging and abandonment and reclamation costs exceed the operator's bond amount, they are obligated to pay that difference.
Proposed § 29.151(b) provides a method to reduce the operator's bond amount if the operator provides in-kind reclamation.
Proposed § 29.152 allows the Service to adjust the amount of financial assurance due to changed conditions or circumstances that increase or decrease the estimated costs of reclamation. For instance, if an operator elects to conduct interim reclamation, the bond amount for full reclamation could be reduced based on the amount of the site reclaimed
nt if the operator provides in-kind reclamation.
Proposed § 29.152 allows the Service to adjust the amount of financial assurance due to changed conditions or circumstances that increase or decrease the estimated costs of reclamation. For instance, if an operator elects to conduct interim reclamation, the bond amount for full reclamation could be reduced based on the amount of the site reclaimed. On the other hand, if the operator modifies their operations in a manner that would make the cost of plugging or reclamation more expensive, the bond amount could be increased.
Proposed § 29.153 describes the conditions under which the Service would release the financial assurance. The Service will release an operator's bond if they have met all applicable reclamation operating standards, as well as any additional conditions outlined in their operations permit.
Proposed § 29.154 describes those circumstances that would result in forfeiture. Failure to comply with any provision of the operations permit could result in forfeiture of the operator's financial assurance to the extent it would cost the Service to remedy the noncompliance. Also, under this provision, if the operator forfeits their financial assurance, the Service may prohibit the operator from removing all structures, equipment, or other material from the operator's area of operations; require the operator to secure the operations site and take any other necessary steps to protect refuge lands or resources, visitor uses, and visitor or employee health and safety; and/or suspend review of any pending permit applications until the Service determines that all violations have been resolved.
§ 29.160 Modification to an Operation
The objectives of proposed § 29.160 are to provide the Service or operator a method to modify an operations permit to address new or unanticipated changes in operational or environmental conditions
tor or employee health and safety; and/or suspend review of any pending permit applications until the Service determines that all violations have been resolved.
§ 29.160 Modification to an Operation
The objectives of proposed § 29.160 are to provide the Service or operator a method to modify an operations permit to address new or unanticipated changes in operational or environmental conditions. Any modification to an approved permit must meet the same criteria that apply to an operations permit as outlined in the application review process (proposed §§ 29.100 through 29.104). Examples of a modification could include drilling additional wells from the same pad, creating additional surface disturbance (expanding the footprint of a well pad, realigning a road), or converting a natural gas well into a wastewater disposal well so that the resulting modification has notable impacts to the refuge resource.
Minor actions that are not specifically addressed in the operations permit but are within the scope of the impacts analyzed would not be considered modifications for the purpose of this section. Examples of such minor actions would include repositioning of surface facilities within the permitted area of operations, minor changes in color schemes, or non-routine maintenance actions.
§§ 29.170-29.171 Change of Operator
A change of operator occurs anytime an entity exercising non-Federal oil and gas rights transfers those rights to another party. However, a transfer of stock or change in the membership of the Board of Directors is not by itself a transfer subject to Service approval to which this provision applies. We encourage the transferring party, as well as new operators, to consult with the refuge manager prior to transfer of operations to facilitate the transition.
Proposed § 29.170 outlines the steps the operator must take if they are the transferring party
or change in the membership of the Board of Directors is not by itself a transfer subject to Service approval to which this provision applies. We encourage the transferring party, as well as new operators, to consult with the refuge manager prior to transfer of operations to facilitate the transition.
Proposed § 29.170 outlines the steps the operator must take if they are the transferring party.
Under proposed § 29.170(a), if an operator's operations are not under a Service-issued permit, the operator must provide the Service within 30 calendar days of the transfer the contact information of the party to whom the operator transferred their operation, the effective date of the transfer, and a description of the rights transferred. The operator must also provide written acknowledgement from the new operator that the contents of the notification are true and correct.
Under proposed § 29.170(b), if operations are being conducted under a Service-issued permit, in addition to the notification requirements above, the operator remains responsible for compliance with their operations permit until the new operator agrees in writing to adopt the permit with all its terms and conditions. In addition, if financial assurance is a component of the permit, the Service will retain the financial assurance until the new operator replaces it.
Proposed § 29.171 describes the responsibilities of the new operator.
Proposed § 29.171(a) states that, when pre-existing operations are transferred to a new operator, the new operator may continue operating under the same conditions as the previous operator, but within 30 calendar days from the date of the transfer, would have to provide to the Service its right-to-operate documentation and company contact information
bes the responsibilities of the new operator.
Proposed § 29.171(a) states that, when pre-existing operations are transferred to a new operator, the new operator may continue operating under the same conditions as the previous operator, but within 30 calendar days from the date of the transfer, would have to provide to the Service its right-to-operate documentation and company contact information.
Proposed § 29.171(b) states that, if operations being conducted under a Service-issued permit are transferred to a new operator, the new operator would need to agree in writing to conduct operations in accordance with all terms and conditions of the previous operator's permit and file any financial assurance required under the permit with the Service.
Under proposed § 29.171(c), new operators have the ability to propose modifications to operations transferred to them as outlined in § 29.160.
§§ 29.180-29.181 Well Plugging
The proposed procedures are consistent with the way many States approach the issue of inactive wells, and recognize that certain economic or logistical reasons exist to justify maintenance of wells in shut-in status for extended periods of time. Rather than a “produce or plug” policy, the proposed regulations provide assurance that shut-in wells are maintained in an environmentally sound and safe manner.
Proposed § 29.180 would require operators to plug a well within 60 days after cessation of drilling operations (when no further action has been taken); or within a year of continuous inactivity after completion of production operations; or after expiration of the period approved in the operations permit to maintain the well in shut-in status.
Under proposed § 29.181, operators would be able to seek an extension to the plugging requirement by applying for an operations permit or modification to existing operations permit to maintain a well in shut-in status for up to 5 years
inactivity after completion of production operations; or after expiration of the period approved in the operations permit to maintain the well in shut-in status.
Under proposed § 29.181, operators would be able to seek an extension to the plugging requirement by applying for an operations permit or modification to existing operations permit to maintain a well in shut-in status for up to 5 years. The operator must: Describe why drilling or production operations have ceased; provide a reasonable future use of the well; demonstrate mechanical integrity of the well; and follow maintenance requirements.
§§ 29.190-29.192 Prohibited Acts and Penalties
Proposed § 29.190 provides notices to operators of the prohibited acts that would constitute a violation of these regulations. This list is in addition to general prohibited acts for members of the public while on NWRS lands outlined at 50 CFR part 27. Prohibited acts listed in proposed § 29.190 include operating in violation of terms or conditions of an operations permit under § 29.43; damaging Federal property; conducting operations without Service authorization; failure to comply with suspension or revocation orders; and failure to comply with local, State, and Federal statutes or regulations.
Proposed §§ 29.191-29.192 would give the Service the discretion to take various enforcement actions if the operator engages in a prohibited act, including fines, imprisonment, and/or suspension or revocation of the right to operate an operation. In order to protect refuge resources, the Service may refrain from processing an applicant's permit if the applicant has not taken action elsewhere to remedy severe and substantial violations within the NWRS. These new provisions do not affect other regulatory provisions that authorize termination of a permit for noncompliance under 50 CFR 25.43, or the general penalty provisions under 50 CFR 28.31
n order to protect refuge resources, the Service may refrain from processing an applicant's permit if the applicant has not taken action elsewhere to remedy severe and substantial violations within the NWRS. These new provisions do not affect other regulatory provisions that authorize termination of a permit for noncompliance under 50 CFR 25.43, or the general penalty provisions under 50 CFR 28.31.
§ 29.200 Appeals
This section would provide that the operator has the right to appeal a decision through the process outlined in current regulations at 50 CFR 25.45. For ROWs, appeals would still be governed by 50 CFR 29.22; in Alaska, appeals would still be governed by 43 CFR 36.8. Under the provisions of 50 CFR 25.45, the operator has 20 days after notification of any adverse decision to respond. The operator shall be notified within 20 days after receipt of their response of the final decision. If the Service intends to proceed with the proposed action, the operator shall have 30 days from the final decision to file an appeal to the project leader ( e.g. , refuge complex manager or refuge regional supervisor). The operator shall be notified in writing within 30 days from the date of the appeal of that decision. The operator has 30 days from receipt of the decision to further appeal in writing to the Regional Director. The Regional Director's decision shall be final and issued in writing to the operator within 30 days from the date of the appeal. The operator shall be provided an opportunity for oral presentation within the respective 30-day appeal periods. The operator must also use this administrative appeals process before challenging the Service's decision in court. The time to file appeals and to complete the process of appeals may be extended at the discretion of the Regional Director.
§ 29.210 Public Information
This section would offer information on how the public can learn about oil and gas activities on refuge lands
day appeal periods. The operator must also use this administrative appeals process before challenging the Service's decision in court. The time to file appeals and to complete the process of appeals may be extended at the discretion of the Regional Director.
§ 29.210 Public Information
This section would offer information on how the public can learn about oil and gas activities on refuge lands. The proposed rule provides the ability for an operator to protect proprietary or confidential information from disclosure to the public. Operators need to clearly mark those documents that they wish to protect from public disclosure as “proprietary or confidential information” such that these documents are readily identifiable by the Service decision maker. The Service has also included proposed provisions that allow an operator engaged in hydraulic fracturing operations or other operations involving the use of chemicals to withhold chemical formulations that are deemed to be a trade secret.
§ 29.220 Information Collection
This section would provide information on Office of Management and Budget (OMB) approval of the collection of information set forth in these regulations.
Compliance With Other Laws, Executive Orders, and Department Policies
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this proposed rule is significant, because it may raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive order.
Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends
ssues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive order.
Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements. As noted above, we have carefully considered both the NPS's proposed amendments to the 9B regulations and the recent BLM regulations related to hydraulic fracturing, to ensure consistency to the greatest extent possible. The Service is aware of the current litigation concerning BLM's final hydraulic fracturing rule, State of Wyoming v. U.S. Department of the Interior , Case No: 2:15-CV-043-SWS (D. Wyo.) (consolidated with No. 2:15-CV-041-SWS), and Southern Ute Indian Tribe v. U.S. Department of the Interior , Case No: 15-CV-01303-MSK (D. Colo.), and will consider public comment as well as any rulings that may occur in the litigation in reaching final decisions on its final rule.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq. , whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effec

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2015-30977. Check the current official text before relying on it. Not legal advice.