Non-Federal Oil and Gas Development Within the National Wildlife Refuge System, 10080-10084 [2014-03792]
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Federal Register / Vol. 79, No. 36 / Monday, February 24, 2014 / Proposed Rules
Paperwork Reduction Act of 1995 (44
U.S.C. 3501, et seq.)
special rule would result in a lessrestrictive regulation under the
Endangered Species Act than would
otherwise exist. A takings implication
assessment is not required.
Federalism
In accordance with Executive Order
13132, this proposed rule does not have
significant Federalism effects. A
federalism summary impact statement is
not required. This proposed rule would
not have substantial direct effects on the
State, on the relationship between the
Federal Government and the State, or on
the distribution of power and
responsibilities among the various
levels of government.
recordkeeping requirements,
Transportation.
This proposed rule does not contain
any new collections of information that
require approval by the Office of
Management and Budget (OMB) under
the Paperwork Reduction Act. This
proposed rule will not impose
recordkeeping or reporting requirements
on State or local governments,
individuals, businesses, or
organizations. An agency may not
conduct or sponsor, and a person is not
required to respond to, a collection of
information unless it displays a
currently valid OMB control number.
Proposed Regulation Promulgation
National Environmental Policy Act (42
U.S.C. 4321 et seq.)
In accordance with Executive Order
12988, the Office of the Solicitor has
determined that this proposed rule does
not unduly burden the judicial system
and meets the requirements of sections
3(a) and 3(b)(2) of the Order.
We intend to undertake an
environmental assessment of this action
under the authority of the National
Environmental Policy Act of 1969
(NEPA). We will notify the public of the
availability of the draft environmental
assessment for this proposal when it is
finished.
Energy Supply, Distribution or Use
(Executive Order 13211)
Government-to-Government
Relationship With Tribes
Executive Order 13211 requires
agencies to prepare Statements of
Energy Effects when undertaking
actions that significantly affect energy
supply, distribution, and use. For
reasons discussed within this proposed
rule, we believe that the rule would not
have any effect on energy supplies,
distribution, and use. Therefore, this
action is not a significant energy action,
and no Statement of Energy Effects is
required.
In accordance with the President’s
memorandum of April 29, 1994
(Government-to-Government Relations
with Native American Tribal
Governments; 59 FR 22951), Executive
Order 13175 (Consultation and
Coordination with Indian Tribal
Governments), and the Department of
the Interior’s manual at 512 DM 2, we
readily acknowledge our responsibility
to communicate meaningfully with
recognized Federal Tribes on a
government-to-government basis. In
accordance with Secretarial Order 3206
of June 5, 1997 (American Indian Tribal
Rights, Federal-Tribal Trust
Responsibilities, and the Endangered
Species Act), we readily acknowledge
our responsibilities to work directly
with tribes in developing programs for
healthy ecosystems, to acknowledge that
tribal lands are not subject to the same
controls as Federal public lands, to
remain sensitive to Indian culture, and
to make information available to tribes.
We determined that there are no known
tribal lands within the range of the
Georgetown salamander.
Civil Justice Reform
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Clarity of the Rule
We are required by Executive Orders
12866 and 12988 and by the
Presidential Memorandum of June 1,
1998, to write all rules in plain
language. This means that each rule we
publish must: (a) Be logically organized;
(b) use the active voice to address
readers directly; (c) use clear language
rather than jargon; (d) be divided into
short sections and sentences; and (e) use
lists and tables wherever possible.
If you feel that we have not met these
requirements, send us comments by one
of the methods listed in ADDRESSES. To
better help us revise the proposed rule,
your comments should be as specific as
possible. For example, you should tell
us the numbers of the sections or
paragraphs that are unclearly written,
which sections or sentences are too
long, the sections where you feel lists or
tables would be useful, etc.
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Authors
The primary authors of this proposed
rule are the staff members of the Austin
Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).
List of Subjects in 50 CFR Part 17
Endangered and threatened species,
Exports, Imports, Reporting and
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Accordingly, we propose to amend
part 17, subchapter B of chapter I, title
50 of the Code of Federal Regulations,
as follows:
PART 17—[AMENDED]
1. The authority citation for part 17
continues to read as follows:
■
Authority: 16 U.S.C. 1361–1407; 1531–
1544; 4201–4245; unless otherwise noted.
2. Amend § 17.43 by adding paragraph
(e) to read as follows:
■
§ 17.43
Special rules—amphibians.
*
*
*
*
*
(e) Georgetown salamander (Eurycea
naufragia).
(1) Prohibitions. Except as noted in
paragraph (e)(2) of this section, all
prohibitions and provisions of §§ 17.31
and 17.32 apply to the Georgetown
salamander.
(2) Exemptions from prohibitions.
Incidental take of the Georgetown
salamander will not be considered a
violation of section 9 of the Act if the
take occurs on privately owned, State,
or county land from activities that are
conducted consistent with the
conservation measures contained in the
City of Georgetown, Texas, Ordinance
2013–59.
Dated: February 14, 2014.
Daniel M. Ashe,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2014–03719 Filed 2–21–14; 8:45 am]
BILLING CODE 4310–55–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 29
[Docket No. FWS–HQ–NWRS–2012–0086;
FXRS12610900000–134–FF09R200000]
RIN 1018–AX36
Non-Federal Oil and Gas Development
Within the National Wildlife Refuge
System
Fish and Wildlife Service,
Interior.
ACTION: Advance notice of proposed
rulemaking; notice of intent to prepare
an environmental impact statement.
AGENCY:
The U.S. Fish and Wildlife
Service (Service) is seeking comments to
assist us in developing a proposed rule
on managing activities associated with
non-Federal oil and gas development on
SUMMARY:
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lands and waters of the National
Wildlife Refuge System (Refuge
System). 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 proposed rule will clarify
and expand existing regulations. We
seek public input on how to manage
non-Federal oil and gas operations on
Refuge System lands to avoid or
minimize, to the greatest possible
extent, adverse effects on natural and
cultural resources, wildlife-dependent
recreation, and refuge infrastructure and
management; ensure a consistent and
effective regulatory environment for oil
and gas operators; and protect public
health and safety. The Service lacks
comprehensive regulations to manage
non-Federal oil and gas operations on
the Refuge System, which has led to
unnecessary adverse impacts on refuge
resources, as well as an uncertain and
inconsistent regulatory environment for
oil and gas operators on refuges.
This notice of intent starts the scoping
process in compliance with the National
Environmental Policy Act (NEPA) and
its implementing regulations. Currently,
we are planning for the programmatic
environmental impact statement (PEIS)
to focus on the national effects of the
rulemaking, realizing that further
environmental analysis of the more
localized effects may be required with
implementation of the rule. As part of
the scoping process, the Service seeks
public comment on the scope of the
proposed rule; the NEPA alternatives to
be considered; and the physical,
biological, social, and economic effects
that should be analyzed in the draft
PEIS.
Submit comments on or before
April 25, 2014.
DATES:
You may submit comments
by one of the following methods:
• Electronically: Go to the Federal
eRulemaking Portal: https://
www.regulations.gov. Search for FWS–
HQ–NWRS–2012–0086, which is the
docket number for this rulemaking. You
may submit a comment by clicking on
‘‘Comment Now!’’ If your comments
will fit in the provided comment box,
please use this feature of https://
www.regulations.gov, as it is most
compatible with our comment review
procedures. If you attach your
comments as a separate document, our
preferred file format is Microsoft Word.
If you attach multiple comments (such
as form letters), our preferred format is
a spreadsheet in Microsoft Excel.
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ADDRESSES:
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• By hard copy: Submit by U.S. mail
or hand-delivery to: Public Comments
Processing, Attn: FWS–HQ–NWRS–
2012–0086; Division of Policy and
Directives Management; U.S. Fish and
Wildlife Service; 4401 N. Fairfax Drive,
MS 2042–PDM; Arlington, VA 22203.
We will not accept email or faxes. We
will post all comments on https://
www.regulations.gov. This generally
means that we will post any personal
information you provide us (see Public
Participation under SUPPLEMENTARY
INFORMATION for more information).
FOR FURTHER INFORMATION CONTACT:
Scott Covington, (703) 358–2427.
SUPPLEMENTARY INFORMATION:
Background
In many refuges of the Refuge System,
the Federal Government does not own
the subsurface mineral rights, and,
subject to State and Federal law, the
mineral rights owners have the legal
authority to develop oil and gas
resources. Additionally, some refuges
had existing oil and gas wells and
associated infrastructure and pipelines
when acquired by the Service. Based on
our best available data as of 2012, 103
refuges and 4 wetland management
districts have oil and gas operations (oil
and gas wells, injection wells for
enhanced oil recovery and produced
water disposal, and pipelines),
including more than 5,000 wells (oil,
gas, injection) and almost 1,700 actively
producing oil and gas wells (these
estimates include wells in both Federal
and non-Federal minerals). For
purposes of this rulemaking, nonFederal minerals are considered the
rights to develop oil and gas resources
held by private, tribal, state or other
entities. With Federal minerals, the
development rights are held by the U.S.
government. The smaller proportion of
these wells is in Federal minerals,
which are administered by the Bureau
of Land Management (BLM) primarily
under 43 CFR 3101.5. Some Federal
regulations do apply to development of
non-Federal minerals (e.g., 40 CFR 60,
61, and 63). However, the Service lacks
comprehensive regulations to manage
non-Federal oil and gas operations on
the Refuge System, which has led to
unnecessary adverse impacts on refuge
resources, as well as an uncertain and
inconsistent regulatory environment for
oil and gas operators on refuges. The
proposed rule will clarify and expand
existing regulations at 50 CFR 29.32.
In 2003, the Government
Accountability Office (GAO) issued a
report (GAO–03–517) to Congress
highlighting the opportunities to
improve management and oversight of
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oil and gas operations on the Refuge
System. One of the main
recommendations of the report was to
clarify the Service’s permitting authority
of non-Federal oil and gas operations
through regulations. Several other land
management agencies have regulations
that cover oil and gas development,
including the Department of the
Interior’s National Park Service (NPS)
and BLM, and the U.S. Department of
Agriculture’s Forest Service (FS). An
update by GAO in 2007 (GAO–07–829R)
followed the 2003 report reasserting 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 the Refuge
System to protect the public’s surface
interests. We believe that rulemaking is
necessary for the Service to create a
consistent and reasonable set of
regulatory management controls for
non-Federal oil and gas operations on
the Refuge System. This request for
comments and ideas on the rulemaking
will improve the process.
The legal authority for the Service to
promulgate regulations is derived from
the Property Clause (art. IV, section 3,
cl. 2) and the Commerce Clause (art. I,
Section 8, cl. 3) of the United States
Constitution and from various statutes
enacted by Congress for the
administration of the Refuge System.
The National Wildlife Refuge System
Administration Act of 1966, as amended
by the National Wildlife Refuge System
Improvement Act of 1997 (16 U.S.C.
668dd–668ee), states that the mission of
the Refuge System is 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’’ and grants
authority to the Service to establish
policies and regulations for the
administration and management of the
Refuge System.
The Service is not currently proposing
any specific approach for managing
non-Federal oil and gas operations;
accordingly, no regulatory findings are
associated with this advance notice of
proposed rulemaking. Comments
received will help the Service determine
the scope of any future rulemaking.
Lastly, the Service’s sister agency, the
National Park Service, in 2009 issued an
ANPR on this issue for their Park Units,
74 FR 61596 (November 25, 2009). If
commenters wish to review the
comments the Park Service received, a
copy of its analysis of received
comments can be obtained at https://
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www.nature.nps.gov/geology/oil_and
_gas/documents/2011-01-11%20ANPR
_Comment_Analysis_Report.pdf.
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Information Requested
The Service is interested in ideas from
the public on ways we can improve
existing management and oversight of
non-Federal oil and gas operations. In
addition, we request your help in
identifying the significant issues and
NEPA alternatives that we should
consider in determining the scope of the
PEIS for this rulemaking initiative. The
Service intends to use input from the
public to help us develop the proposed
rule and prepare the draft PEIS. After
receiving public comments and ideas,
we will publish the proposed rule and
notice of availability of the draft PEIS in
the Federal Register for public review
and comment. In particular, the Service
encourages the public to provide
comments and suggestions on the
management and oversight issues
described in the body of this notice.
When commenting, please indicate
which of the listed issues your
comments address and to which
question you are responding. If your
comments cover issues outside of those
listed, please identify them as ‘‘other.’’
The Service also recognizes its
government-to-government relationship
with federally recognized Native
American Tribes and seeks their
comments in this notice. Tribal
representatives may submit comments
through the process described below,
which will include those comments in
the public record. Alternatively, tribal
representatives may contact Scott
Covington at (703) 358–2427 for
additional information or to initiate
government-to-government
consultation.
Issue 1: Plans of Operations and
Special Use Permits
The Service requires entities, such as
people, organizations, or companies, to
get a Special Use Permit for any refuge
use not generally open to the public.
The permitting process allows the
Service to ensure that refuge resources,
as well as public health and safety, are
protected to the greatest extent
practicable before allowing the use on a
refuge. In their existing regulations, the
NPS and FS require that oil and gas
development operators file a proposed
plan of operations or operating plan and
acquire a permit for use of the Federal
surface estate. Operations encompass all
activities associated with oil and gas,
and include, but are not limited to:
Reconnaissance to gather natural and
cultural resources information; line-ofsight surveying and staking; geophysical
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exploration; exploratory drilling;
production (site selection, well pad
development, drilling, stimulation, and
production), gathering, storage,
processing, and transport of petroleum
products; inspection, monitoring, and
maintenance of equipment; well ‘‘workover’’ activity; construction,
maintenance, and use of pipelines; well
plugging and abandonment; reclamation
of the surface; and construction or use
of roads, or other means of access or
transportation, on, across, or through
federally owned or controlled lands or
waters. The plan of operations includes
reasonable operating standards with
which an operator should comply in
conducting all phases of oil and gas
operations, as well as any other
necessary requirements for the operator
to meet to ensure compliance with
Federal and State law. The Service
believes that requiring a plan of
operations, followed by issuance of a
special use permit once the plan is
approved, is the most effective way to
increase oversight and management of
non-Federal oil and gas operations on
the Refuge System.
Questions:
a. Should NPS and/or FS
requirements serve as a model for
managing oil and gas operations on
Refuge System lands? If so, should the
FWS take special note of specific
aspects of either set of requirements in
crafting its own regulations?
b. Do you have recommendations for
alternatives to the processes described
above that would allow for effective
oversight and management of nonFederal oil and gas operations on the
Refuge System? What are the benefits
and costs of suggested alternatives?
c. Do you know of ways that the
Service could implement an efficient
and effective permitting process similar
to that described above or recommended
in the previous question, that reduces
the burden of compliance for both
operators and refuge staff?
Issue 2: Operating Standards
One of the major goals of the Service
in this proposed rulemaking is to ensure
that operators conduct their operations
in a way that minimizes impacts to
natural and cultural resources when
operating on a refuge, such as locating
operations away from sensitive habitats
for endangered and threatened species,
other priority wildlife resources,
cultural resources, watercourses, visitor
centers, public use areas such as trails
and wildlife viewing areas, and
administrative structures and facilities.
The Service is aware that various
agencies and industry groups have
developed standards (e.g., American
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Petroleum Institute, Bureau of Land
Management Gold Book, State operating
standards, EPA’s Natural Gas STAR
program and New Source Performance
Standards for VOC emissions) that, if
the Service adopts as part of the rule,
may reduce the effects that non-Federal
oil and gas operations on refuges may
have on refuge resources. The Service
may adapt the standard to meet
requirements identified in the Refuge
Administration Act. As an alternative,
because operating standards may change
based on the geological formation,
habitat, new technology, and other
factors, we could leave some flexibility
in the proposed rule by not
incorporating particular operating
standards. Instead, we could provide
criteria that operators could address in
their plan of operations in what they
believe to be the best technical and
management practices.
Questions:
a. Do you have recommendations for
how the Service can best ensure that
operators are conducting operations
under effective, enforceable operating
standards in our proposed rule?
b. How can the Service best verify that
operators are complying with applicable
standards?
c. How can the Service best ensure
that the standards selected are effective
and enforceable? Please provide
examples with data.
d. Do you have recommendations for
the Service in developing a proposed
rule that can adapt to technological
advances in oil and gas development?
e. What criteria could be used as
targets in plans of operation using best
technical and management practices,
and how would compliance be
assessed?
Issue 3: Financial Assurances
The Refuge System has sustained
significant damages to refuge resources
from leaks and spills, inadequate
plugging, abandonment and
reclamation. The Service must ensure
that taxpayers do not incur the costs of
restoring refuge resources from
irresponsible non-Federal oil and gas
operations. In their regulations, the NPS
requires that an operator file a
performance bond or other acceptable
method of financial assurance for all
types and phases of non-Federal oil and
gas operations. The objective of
requiring a bond is to ensure that if an
operator becomes insolvent or defaults
on his/her obligations under an
approved plan of operations, adequate
funds will be available to the agency to
carry out the plugging and reclamation
requirements. The FS regulations give
the Authorization Officer the discretion
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to require a performance bond; however,
justification for the bond should be
documented in the administrative
record. The bond ensures that adequate
funds will be available to restore the
site, remove equipment and
contaminated soil, and revegetate the
area.
Questions:
a. Should the FWS simply adopt the
financial assurance instruments and
process used by one of our sister
agencies (e.g., performance bonds,
irrevocable letters of credit, and cash)?
If so, please describe the advantages or
disadvantages of the different systems
with a recommended model.
b. Are there alternatives to the
existing financial assurance instruments
used by our sister agencies (e.g.,
performance bonds, irrevocable letters
of credit, and cash) that will protect the
taxpayer if refuge resources are damaged
by non-Federal oil and gas operations
on lands and waters of the Refuge
System?
c. If so, please describe the advantages
or disadvantages of one type of
instrument over another, and how it
would be designed.
d. What is the best and most efficient
way to ensure that financial assurances
are maintained when ownership of the
operation is transferred or sold?
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Issue 4: Access Fees
Operators often need to cross Federal
or private lands where they have no
preexisting rights to do so. Operators
must obtain permission from the Service
for such access to Refuge System lands
(50 CFR 29.21). The NPS, FS, and BLM,
as well as (in most cases) adjacent
private land owners, charge fees for this
access. The oil and gas industry
generally recognizes such fees today as
a cost of doing business. The FWS, as
with other surface owners in split-estate
situations, generally has a responsibility
to provide reasonable access to oil and
gas operators wanting to access their
non-Federally owned subsurface estate.
However, we also have clear
responsibilities to protect and maintain
the surface values for which we manage
these lands. As a result, the Service
wants to encourage operators to access
their oil and gas operations from
existing roads that the Service
administers, and at a time, place, and
manner that protects refuge resources to
the maximum extent practicable.
Questions:
a. What is a fair and reasonable
method for the Service to calculate fees
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for the privilege of access across
federally owned lands?
b. How could the Service establish
incentives for operators to use existing
roads or limit access to protect refuge
resources in the proposed rulemaking?
Issue 5: Noncompliance
To ensure protection of refuge
resources and public health and safety,
the Service will need to define a
practical method for dealing with
operators who are not in compliance
with the established plan of operations
or operating standards, or both. The
Service has several options for handling
operators who are noncompliant,
including, but not limited to: Notifying
and working with operators to bring
them into compliance; issuing formal
notices of noncompliance; assessing
penalties for failure to comply with a
notice of noncompliance; and for more
egregious cases, filing a civil action in
Federal court seeking an injunction or
restraining order to halt operations.
Questions:
a. What are the most effective means
for the Service to encourage compliance
with an established plan of operations
and operating standards?
b. Are there new and emerging
technologies, techniques, and
verification systems that would improve
effectiveness and efficiency of
monitoring and verifying compliance
with regulations and permit
requirements?
c. Are some penalties and/or
deterrence techniques more effective
than others to ensure compliance?
d. Could a system be designed based
on transparency of plans, operations,
and practices that would foster use of
better practices and compliance, and
make it easier for the Service and public
to understand oil and gas operations?
Issue 6: Existing Operations
Many operators are already exploring,
drilling, and producing non-Federal oil
and gas on Refuge System lands. Our
goal is to ensure that we bring existing
operations into compliance with any
new rulemaking as seamlessly as
possible to meet effective best
management practices when operating
on lands and waters of the Refuge
System. We do not want to disrupt
existing operations or impose an
unreasonable burden on operators or
Refuge System field staff.
Questions:
a. What is a fair and reasonable
timeline for the Service to bring existing
operations into compliance with the
new regulations?
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10083
b. Is there a way to stagger certain
aspects of compliance that would make
it less burdensome on both operators
and Refuge System staff?
Issue 7: Impacts from the Proposed
Rulemaking
The PEIS will analyze a range of
reasonable alternatives for regulating
non-Federal oil and gas exploration,
development, and production, and the
potential environmental impacts on
refuge resources, such as threatened and
endangered species, waterfowl,
migratory birds, air and water quality,
soils, vegetation, wetlands, cultural
resources, viewsheds, and soundscapes.
The PEIS will also analyze effects on oil
and gas operators, visitor experiences,
public safety, adjacent lands, our
changing environment, and refuge
operations.
Questions:
a. Keeping the limited scope of the
PEIS in mind, what do you believe are
the important national impacts for the
Service to analyze in the PEIS for a
proposed rule on non-Federal oil and
gas operations on the Refuge System
(e.g., impacts to daily refuge operations,
costs involved in monitoring)?
b. What unique legislation or legal
consideration should the PEIS take into
account when analyzing potential
impacts on specific regions or states?
Public Participation
The Service seeks responses from the
public to the questions above. We also
seek any relevant comments on other
issues that are related to this proposed
rulemaking. We especially seek
recommendations for effective and
efficient approaches to managing nonFederal oil and gas development on the
Refuge System. After analyzing the
comments received from this notice, we
will determine how to proceed with a
proposed rulemaking.
All submissions received must
include the Service docket number for
this notice. Before including your
address, phone number, email address,
or other personal identifying
information in your comment, you
should be aware that your entire
comment—including your personal
identifying information—may be made
publicly available at any time. While
you can ask us in your comment to
withhold your personal identifying
information from public review, we
cannot guarantee that we will be able to
do so.
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The Service will continue to solicit
public input through a collaborative
process as we develop the proposed rule
and PEIS. We will also include
additional background information on
non-Federal oil and gas operations on
the Refuge System at the following Web
site: https://www.fws.gov/refuges/oiland-gas/
Dated: February 18, 2014.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish
and Wildlife and Parks.
[FR Doc. 2014–03792 Filed 2–21–14; 8:45 am]
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]]>Agencies
[Federal Register Volume 79, Number 36 (Monday, February 24, 2014)]
[Proposed Rules]
[Pages 10080-10084]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-03792]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 29
[Docket No. FWS-HQ-NWRS-2012-0086; FXRS12610900000-134-FF09R200000]
RIN 1018-AX36
Non-Federal Oil and Gas Development Within the National Wildlife
Refuge System
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Advance notice of proposed rulemaking; notice of intent to
prepare an environmental impact statement.
-----------------------------------------------------------------------
SUMMARY: The U.S. Fish and Wildlife Service (Service) is seeking
comments to assist us in developing a proposed rule on managing
activities associated with non-Federal oil and gas development on
[[Page 10081]]
lands and waters of the National Wildlife Refuge System (Refuge
System). 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 proposed rule will clarify
and expand existing regulations. We seek public input on how to manage
non-Federal oil and gas operations on Refuge System lands to avoid or
minimize, to the greatest possible extent, adverse effects on natural
and cultural resources, wildlife-dependent recreation, and refuge
infrastructure and management; ensure a consistent and effective
regulatory environment for oil and gas operators; and protect public
health and safety. The Service lacks comprehensive regulations to
manage non-Federal oil and gas operations on the Refuge System, which
has led to unnecessary adverse impacts on refuge resources, as well as
an uncertain and inconsistent regulatory environment for oil and gas
operators on refuges.
This notice of intent starts the scoping process in compliance with
the National Environmental Policy Act (NEPA) and its implementing
regulations. Currently, we are planning for the programmatic
environmental impact statement (PEIS) to focus on the national effects
of the rulemaking, realizing that further environmental analysis of the
more localized effects may be required with implementation of the rule.
As part of the scoping process, the Service seeks public comment on the
scope of the proposed rule; the NEPA alternatives to be considered; and
the physical, biological, social, and economic effects that should be
analyzed in the draft PEIS.
DATES: Submit comments on or before April 25, 2014.
ADDRESSES: You may submit comments by one of the following methods:
Electronically: Go to the Federal eRulemaking Portal:
https://www.regulations.gov. Search for FWS-HQ-NWRS-2012-0086, which is
the docket number for this rulemaking. You may submit a comment by
clicking on ``Comment Now!'' If your comments will fit in the provided
comment box, please use this feature of https://www.regulations.gov, as
it is most compatible with our comment review procedures. If you attach
your comments as a separate document, our preferred file format is
Microsoft Word. If you attach multiple comments (such as form letters),
our preferred format is a spreadsheet in Microsoft Excel.
By hard copy: Submit by U.S. mail or hand-delivery to:
Public Comments Processing, Attn: FWS-HQ-NWRS-2012-0086; Division of
Policy and Directives Management; U.S. Fish and Wildlife Service; 4401
N. Fairfax Drive, MS 2042-PDM; Arlington, VA 22203.
We will not accept email or faxes. We will post all comments on
https://www.regulations.gov. This generally means that we will post any
personal information you provide us (see Public Participation under
SUPPLEMENTARY INFORMATION for more information).
FOR FURTHER INFORMATION CONTACT: Scott Covington, (703) 358-2427.
SUPPLEMENTARY INFORMATION:
Background
In many refuges of the Refuge System, the Federal Government does
not own the subsurface mineral rights, and, subject to State and
Federal law, the mineral rights owners have the legal authority to
develop oil and gas resources. Additionally, some refuges had existing
oil and gas wells and associated infrastructure and pipelines when
acquired by the Service. Based on our best available data as of 2012,
103 refuges and 4 wetland management districts have oil and gas
operations (oil and gas wells, injection wells for enhanced oil
recovery and produced water disposal, and pipelines), including more
than 5,000 wells (oil, gas, injection) and almost 1,700 actively
producing oil and gas wells (these estimates include wells in both
Federal and non-Federal minerals). For purposes of this rulemaking,
non-Federal minerals are considered the rights to develop oil and gas
resources held by private, tribal, state or other entities. With
Federal minerals, the development rights are held by the U.S.
government. The smaller proportion of these wells is in Federal
minerals, which are administered by the Bureau of Land Management (BLM)
primarily under 43 CFR 3101.5. Some Federal regulations do apply to
development of non-Federal minerals (e.g., 40 CFR 60, 61, and 63).
However, the Service lacks comprehensive regulations to manage non-
Federal oil and gas operations on the Refuge System, which has led to
unnecessary adverse impacts on refuge resources, as well as an
uncertain and inconsistent regulatory environment for oil and gas
operators on refuges. The proposed rule will clarify and expand
existing regulations at 50 CFR 29.32.
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 the Refuge
System. One of the main recommendations of the report was to clarify
the Service's permitting authority of non-Federal oil and gas
operations through regulations. Several other land management agencies
have regulations that cover oil and gas development, including the
Department of the Interior's National Park Service (NPS) and BLM, and
the U.S. Department of Agriculture's Forest Service (FS). An update by
GAO in 2007 (GAO-07-829R) followed the 2003 report reasserting 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 the Refuge System to
protect the public's surface interests. We believe that rulemaking is
necessary for the Service to create a consistent and reasonable set of
regulatory management controls for non-Federal oil and gas operations
on the Refuge System. This request for comments and ideas on the
rulemaking will improve the process.
The legal authority for the Service to promulgate regulations is
derived from the Property Clause (art. IV, section 3, cl. 2) and the
Commerce Clause (art. I, Section 8, cl. 3) of the United States
Constitution and from various statutes enacted by Congress for the
administration of the Refuge System. The National Wildlife Refuge
System Administration Act of 1966, as amended by the National Wildlife
Refuge System Improvement Act of 1997 (16 U.S.C. 668dd-668ee), states
that the mission of the Refuge System is 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'' and grants authority to the Service
to establish policies and regulations for the administration and
management of the Refuge System.
The Service is not currently proposing any specific approach for
managing non-Federal oil and gas operations; accordingly, no regulatory
findings are associated with this advance notice of proposed
rulemaking. Comments received will help the Service determine the scope
of any future rulemaking. Lastly, the Service's sister agency, the
National Park Service, in 2009 issued an ANPR on this issue for their
Park Units, 74 FR 61596 (November 25, 2009). If commenters wish to
review the comments the Park Service received, a copy of its analysis
of received comments can be obtained at https://
[[Page 10082]]
www.nature.nps.gov/geology/oil_and_gas/documents/2011-01-11%20ANPR_
Comment_Analysis_Report.pdf.
Information Requested
The Service is interested in ideas from the public on ways we can
improve existing management and oversight of non-Federal oil and gas
operations. In addition, we request your help in identifying the
significant issues and NEPA alternatives that we should consider in
determining the scope of the PEIS for this rulemaking initiative. The
Service intends to use input from the public to help us develop the
proposed rule and prepare the draft PEIS. After receiving public
comments and ideas, we will publish the proposed rule and notice of
availability of the draft PEIS in the Federal Register for public
review and comment. In particular, the Service encourages the public to
provide comments and suggestions on the management and oversight issues
described in the body of this notice. When commenting, please indicate
which of the listed issues your comments address and to which question
you are responding. If your comments cover issues outside of those
listed, please identify them as ``other.''
The Service also recognizes its government-to-government
relationship with federally recognized Native American Tribes and seeks
their comments in this notice. Tribal representatives may submit
comments through the process described below, which will include those
comments in the public record. Alternatively, tribal representatives
may contact Scott Covington at (703) 358-2427 for additional
information or to initiate government-to-government consultation.
Issue 1: Plans of Operations and Special Use Permits
The Service requires entities, such as people, organizations, or
companies, to get a Special Use Permit for any refuge use not generally
open to the public. The permitting process allows the Service to ensure
that refuge resources, as well as public health and safety, are
protected to the greatest extent practicable before allowing the use on
a refuge. In their existing regulations, the NPS and FS require that
oil and gas development operators file a proposed plan of operations or
operating plan and acquire a permit for use of the Federal surface
estate. Operations encompass all activities associated with oil and
gas, and include, but are not limited to: Reconnaissance to gather
natural and cultural resources information; line-of-sight surveying and
staking; geophysical exploration; exploratory drilling; production
(site selection, well pad development, drilling, stimulation, and
production), gathering, storage, processing, and transport of petroleum
products; inspection, monitoring, and maintenance of equipment; well
``work-over'' activity; construction, maintenance, and use of
pipelines; well plugging and abandonment; reclamation of the surface;
and construction or use of roads, or other means of access or
transportation, on, across, or through federally owned or controlled
lands or waters. The plan of operations includes reasonable operating
standards with which an operator should comply in conducting all phases
of oil and gas operations, as well as any other necessary requirements
for the operator to meet to ensure compliance with Federal and State
law. The Service believes that requiring a plan of operations, followed
by issuance of a special use permit once the plan is approved, is the
most effective way to increase oversight and management of non-Federal
oil and gas operations on the Refuge System.
Questions:
a. Should NPS and/or FS requirements serve as a model for managing
oil and gas operations on Refuge System lands? If so, should the FWS
take special note of specific aspects of either set of requirements in
crafting its own regulations?
b. Do you have recommendations for alternatives to the processes
described above that would allow for effective oversight and management
of non-Federal oil and gas operations on the Refuge System? What are
the benefits and costs of suggested alternatives?
c. Do you know of ways that the Service could implement an
efficient and effective permitting process similar to that described
above or recommended in the previous question, that reduces the burden
of compliance for both operators and refuge staff?
Issue 2: Operating Standards
One of the major goals of the Service in this proposed rulemaking
is to ensure that operators conduct their operations in a way that
minimizes impacts to natural and cultural resources when operating on a
refuge, such as locating operations away from sensitive habitats for
endangered and threatened species, other priority wildlife resources,
cultural resources, watercourses, visitor centers, public use areas
such as trails and wildlife viewing areas, and administrative
structures and facilities. The Service is aware that various agencies
and industry groups have developed standards (e.g., American Petroleum
Institute, Bureau of Land Management Gold Book, State operating
standards, EPA's Natural Gas STAR program and New Source Performance
Standards for VOC emissions) that, if the Service adopts as part of the
rule, may reduce the effects that non-Federal oil and gas operations on
refuges may have on refuge resources. The Service may adapt the
standard to meet requirements identified in the Refuge Administration
Act. As an alternative, because operating standards may change based on
the geological formation, habitat, new technology, and other factors,
we could leave some flexibility in the proposed rule by not
incorporating particular operating standards. Instead, we could provide
criteria that operators could address in their plan of operations in
what they believe to be the best technical and management practices.
Questions:
a. Do you have recommendations for how the Service can best ensure
that operators are conducting operations under effective, enforceable
operating standards in our proposed rule?
b. How can the Service best verify that operators are complying
with applicable standards?
c. How can the Service best ensure that the standards selected are
effective and enforceable? Please provide examples with data.
d. Do you have recommendations for the Service in developing a
proposed rule that can adapt to technological advances in oil and gas
development?
e. What criteria could be used as targets in plans of operation
using best technical and management practices, and how would compliance
be assessed?
Issue 3: Financial Assurances
The Refuge System has sustained significant damages to refuge
resources from leaks and spills, inadequate plugging, abandonment and
reclamation. The Service must ensure that taxpayers do not incur the
costs of restoring refuge resources from irresponsible non-Federal oil
and gas operations. In their regulations, the NPS requires that an
operator file a performance bond or other acceptable method of
financial assurance for all types and phases of non-Federal oil and gas
operations. The objective of requiring a bond is to ensure that if an
operator becomes insolvent or defaults on his/her obligations under an
approved plan of operations, adequate funds will be available to the
agency to carry out the plugging and reclamation requirements. The FS
regulations give the Authorization Officer the discretion
[[Page 10083]]
to require a performance bond; however, justification for the bond
should be documented in the administrative record. The bond ensures
that adequate funds will be available to restore the site, remove
equipment and contaminated soil, and revegetate the area.
Questions:
a. Should the FWS simply adopt the financial assurance instruments
and process used by one of our sister agencies (e.g., performance
bonds, irrevocable letters of credit, and cash)? If so, please describe
the advantages or disadvantages of the different systems with a
recommended model.
b. Are there alternatives to the existing financial assurance
instruments used by our sister agencies (e.g., performance bonds,
irrevocable letters of credit, and cash) that will protect the taxpayer
if refuge resources are damaged by non-Federal oil and gas operations
on lands and waters of the Refuge System?
c. If so, please describe the advantages or disadvantages of one
type of instrument over another, and how it would be designed.
d. What is the best and most efficient way to ensure that financial
assurances are maintained when ownership of the operation is
transferred or sold?
Issue 4: Access Fees
Operators often need to cross Federal or private lands where they
have no preexisting rights to do so. Operators must obtain permission
from the Service for such access to Refuge System lands (50 CFR 29.21).
The NPS, FS, and BLM, as well as (in most cases) adjacent private land
owners, charge fees for this access. The oil and gas industry generally
recognizes such fees today as a cost of doing business. The FWS, as
with other surface owners in split-estate situations, generally has a
responsibility to provide reasonable access to oil and gas operators
wanting to access their non-Federally owned subsurface estate. However,
we also have clear responsibilities to protect and maintain the surface
values for which we manage these lands. As a result, the Service wants
to encourage operators to access their oil and gas operations from
existing roads that the Service administers, and at a time, place, and
manner that protects refuge resources to the maximum extent
practicable.
Questions:
a. What is a fair and reasonable method for the Service to
calculate fees for the privilege of access across federally owned
lands?
b. How could the Service establish incentives for operators to use
existing roads or limit access to protect refuge resources in the
proposed rulemaking?
Issue 5: Noncompliance
To ensure protection of refuge resources and public health and
safety, the Service will need to define a practical method for dealing
with operators who are not in compliance with the established plan of
operations or operating standards, or both. The Service has several
options for handling operators who are noncompliant, including, but not
limited to: Notifying and working with operators to bring them into
compliance; issuing formal notices of noncompliance; assessing
penalties for failure to comply with a notice of noncompliance; and for
more egregious cases, filing a civil action in Federal court seeking an
injunction or restraining order to halt operations.
Questions:
a. What are the most effective means for the Service to encourage
compliance with an established plan of operations and operating
standards?
b. Are there new and emerging technologies, techniques, and
verification systems that would improve effectiveness and efficiency of
monitoring and verifying compliance with regulations and permit
requirements?
c. Are some penalties and/or deterrence techniques more effective
than others to ensure compliance?
d. Could a system be designed based on transparency of plans,
operations, and practices that would foster use of better practices and
compliance, and make it easier for the Service and public to understand
oil and gas operations?
Issue 6: Existing Operations
Many operators are already exploring, drilling, and producing non-
Federal oil and gas on Refuge System lands. Our goal is to ensure that
we bring existing operations into compliance with any new rulemaking as
seamlessly as possible to meet effective best management practices when
operating on lands and waters of the Refuge System. We do not want to
disrupt existing operations or impose an unreasonable burden on
operators or Refuge System field staff.
Questions:
a. What is a fair and reasonable timeline for the Service to bring
existing operations into compliance with the new regulations?
b. Is there a way to stagger certain aspects of compliance that
would make it less burdensome on both operators and Refuge System
staff?
Issue 7: Impacts from the Proposed Rulemaking
The PEIS will analyze a range of reasonable alternatives for
regulating non-Federal oil and gas exploration, development, and
production, and the potential environmental impacts on refuge
resources, such as threatened and endangered species, waterfowl,
migratory birds, air and water quality, soils, vegetation, wetlands,
cultural resources, viewsheds, and soundscapes. The PEIS will also
analyze effects on oil and gas operators, visitor experiences, public
safety, adjacent lands, our changing environment, and refuge
operations.
Questions:
a. Keeping the limited scope of the PEIS in mind, what do you
believe are the important national impacts for the Service to analyze
in the PEIS for a proposed rule on non-Federal oil and gas operations
on the Refuge System (e.g., impacts to daily refuge operations, costs
involved in monitoring)?
b. What unique legislation or legal consideration should the PEIS
take into account when analyzing potential impacts on specific regions
or states?
Public Participation
The Service seeks responses from the public to the questions above.
We also seek any relevant comments on other issues that are related to
this proposed rulemaking. We especially seek recommendations for
effective and efficient approaches to managing non-Federal oil and gas
development on the Refuge System. After analyzing the comments received
from this notice, we will determine how to proceed with a proposed
rulemaking.
All submissions received must include the Service docket number for
this notice. Before including your address, phone number, email
address, or other personal identifying information in your comment, you
should be aware that your entire comment--including your personal
identifying information--may be made publicly available at any time.
While you can ask us in your comment to withhold your personal
identifying information from public review, we cannot guarantee that we
will be able to do so.
[[Page 10084]]
The Service will continue to solicit public input through a
collaborative process as we develop the proposed rule and PEIS. We will
also include additional background information on non-Federal oil and
gas operations on the Refuge System at the following Web site: https://www.fws.gov/refuges/oil-and-gas/.
Dated: February 18, 2014.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2014-03792 Filed 2-21-14; 8:45 am]
BILLING CODE 4310-55-P
