[Federal Register: December 13, 2005 (Volume 70, Number 238)]
[Notices]
[Page 73722-73726]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13de05-36]
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DEPARTMENT OF AGRICULTURE
Forest Service
RIN 0596-AC34
National Environmental Policy Act Documentation Needed for Oil
and Gas Exploration and Development Activities (Categorical Exclusion)
AGENCY: Forest Service, USDA.
ACTION: Notice of proposed directive; request for comment.
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SUMMARY: The Forest Service is proposing to amend its directives in
Forest Service Handbook 1909.15, Chapter 30, which describes
categorical exclusions, that is, categories of actions that will not
result in significant impacts on the environment and, therefore,
normally do not require further analysis in either an environmental
impact assessment or an environmental impact statement. The proposed
amendment would add a new categorical exclusion in section 31.2 to
facilitate the implementation of limited oil and gas projects on leases
on National Forest System lands that do not have significant effects on
the human environment. This categorical exclusion will not apply where
there are extraordinary circumstances, such as adverse effects on
threatened and endangered species or their designated critical habitat,
wilderness areas, inventoried roadless areas, wetlands, and
archeological or historic sites. Public comment is invited and will be
considered in development of the final directive.
DATES: Comments must be received in writing by February 13, 2005.
ADDRESSES: Send written comments via the U.S. Postal Service to: Oil
and Gas CatEx Proposed Directive, C/O Content Analysis Group, P.O. Box
2000, Bountiful, UT 84011-2000, or by facsimile to (801) 397-2601, or
by e-mail to ogcatex@contentanalysisgroup.com. If comments are sent via
facsimile or e-mail, the public is asked not to submit duplicate
written comments. Please confine comments to issues pertinent to the
proposed directive and explain the reasons for any recommended changes.
All comments, including names, addresses and other contact
information when provided, are placed in the record and are available
for public review and copying at 5500 West Amelia Earhart Drive, Suite
100, Salt Lake City, Utah, during regular business hours (8:30 a.m. to
4:30 p.m.), Monday through Friday, except holidays. Those wishing to
inspect comments are encouraged to call in advance to, Jody Sutton,
(801) 517-1032 to facilitate access to the building.
FOR FURTHER INFORMATION CONTACT: Reta Laford, Ecosystem Management
Staff, (202) 205-2936, or Mike Greeley, Minerals and Geology Staff,
(703) 605-4785, Forest Service, USDA.
SUPPLEMENTARY INFORMATION:
Need for the Proposed Direction
The Council on Environmental Quality (CEQ) regulations at 40 CFR
1507.3 provide that agencies, after notice and comment, may adopt
categories of actions that do not have significant impacts on the human
environment and, consequently, do not require preparation of an
environmental assessment (EA) or an environmental impact statement
(EIS). Current Forest Service procedures for complying with and
implementing the National Environmental Policy Act (NEPA) are set out
in Forest Service Handbook (FSH) 1909.15, Chapter 30. This chapter
lists the categories of actions that do not require preparation of an
EA or an EIS by the Forest Service. The Forest Service calls these
categories of action ``categorical exclusions'' (CE). The agency is
proposing a new CE for certain limited oil and gas exploration and
development activities.
Oil and gas development is widespread throughout the National
Forest System (NFS). With the enactment of the Federal Onshore Oil and
Gas Leasing Reform Act of 1987, 30 U.S.C. 226 (``FOOGLRA'') both the
Secretary of the Interior (acting through the Bureau of Land
Management) and the Secretary of Agriculture (acting through the Forest
Service) have authority and responsibility regarding oil and gas leases
on NFS lands, and both agencies have the authority to determine the
stipulations under which leasing will be permitted. 30 U.S.C. 226(h);
43 CFR 3101.7-2(a). FOOGLRA provides that the Forest Service shall
regulate all surface disturbing activities relating to oil and gas
leasing on NFS lands. 30 U.S.C. 226(g). No permit to drill on NFS lands
may be granted without the analysis and approval by the Forest Service
of a surface use plan of operations (SUPO) covering proposed surface
disturbing activities within the lease area.
The Forest Service has established an incremental decision-making
framework for the consideration of oil and gas leasing activities on
NFS lands that is set out in 36 CFR 228.102. In general, the various
steps undertaken are as follows: (1) Forest Service leasing analysis;
(2) Forest Service notification to Bureau of Land Management (BLM) of
lands administratively available for leasing; (3) Forest Service review
and verification of BLM leasing proposals; (4) BLM assessment of Forest
Service conditions of surface occupancy; (5) BLM offers lease; (6) BLM
issues lease; (7) Forest Service review and approval of lessee's SUPO;
and (8) BLM review and approval of lessee's application for permit to
drill (APD). The proposed CE set out in this notice applies exclusively
to the Forest Service's review and approval of an applicant's SUPO.
In 2001 President George W. Bush issued Executive Order (E.O.)
13212 to expedite the increased supply and availability of energy to
our Nation. E.O. 13212 set forth ``For energy-related projects,
agencies shall expedite their review of permits or take other actions
as necessary to accelerate the completion of such projects, while
maintaining safety, public health, and environmental protections. The
agencies shall take such actions to the extent permitted by law and
regulation, and where appropriate.'' In response, the National Energy
Policy and the Forest Service Energy Implementation Plan were
developed. These two initiatives call for streamlining the processing
of APDs and other energy related permits in an environmentally sound
manner.
On August 8th 2005, President George W. Bush signed the Energy
Policy Act of 2005 into law. Section 390 of the Energy Policy Act of
2005 establishes categorical exclusions under NEPA that apply to five
categories of oil and gas exploration and development activities
[[Page 73723]]
conducted pursuant to the Mineral Leasing Act (30 U.S.C. et seq., as
amended) on Federal oil and gas leases. Section 390 took effect on the
date of enactment, August 8, 2005. The categorical exclusion proposed
in this notice does not overlap or duplicate the activities proposed in
section 390 of the Energy Policy Act of 2005. They are separate and
independent of the provisions of section 390 of the Energy Policy Act.
Taken in concert, this CE and the five statutory categories discussed
above further the President's goals set forth in Executive Order 13212.
For decades the Forest Service has analyzed and administered SUPO
for oil and gas exploration and development on NFS lands. As part of
the Forest Service Energy Implementation Plan process, the planning and
environmental review process was reviewed by field personnel who
indicated that the USFS and BLM land and resource management planning
process, leasing process, and SUPO and APD review processes for oil and
gas exploration and development frequently caused agency personnel to
extend timelines and expend undue energy and funding in order to
complete the planning and environmental documentation for minor
exploration and/or development projects. The Deputy Chief of the NFS
requested field units to monitor oil and gas exploration and
development projects that had been analyzed in an EA, and were approved
and constructed, or partially constructed, between October 1, 1999 and
September 30, 2004. The objective of the review was to determine if
surface operations for oil and gas activities approved in site-specific
EAs did or did not have cumulatively significant effects on the human
environment and therefore could or could not qualify for a CE. The
results of this analysis are set out to under ``Rationale for the
Proposal.''
Based on this review and the agency's extensive experience with oil
and gas exploration and development activities including the
construction of well sites, pipelines and roads and road
reconstruction, the Forest Service proposes to add a new CE to its
Environmental Policy and Procedures Handbook (FSH 1909.15). This
category would appear in section 31.2, Categories of Actions for Which
a Project or Case File and Decision Memo Are Required, and would
provide a specific, narrow CE for oil and gas exploration and/or
development.
Description of the Proposed New Categorical Exclusion
The proposed CE would allow oil and natural gas exploration and/or
development activities within a new oil and/or gas field not to exceed
a total of: (a) One mile of new road construction; (b) one mile of road
reconstruction; (c) three miles of pipeline installation; and (d) four
drill sites. A drill site may include more than one well in order to
reduce surface disturbance. The category would only apply to activities
on NFS lands that are under Federal lease and when there are no
extraordinary circumstances. Following is a hypothetical example of how
the CE could be applied on NFS land.
A Responsible Official approves the construction of one exploration
drill site and .5 miles of road construction within a new field using
the proposed CE where no extraordinary circumstances are involved. The
exploration well is a ``strike'' and is capable of production. The
Responsible Official could appropriately use the proposed CE to
subsequently approve the construction of another exploration drill
site, involving .5 miles of road reconstruction and .2 miles of road
construction. The second exploration well is also a strike and it is
determined that both exploration wells are in the same oil or gas
field. The Responsible Official could use the proposed CE when
approving development of a drill site involving .5 miles of road
reconstruction and .2 miles of road construction in the same field. At
this point, 3 drill sites, .9 miles of road construction and one mile
of road reconstruction have been approved in the field. If a lessee
submits an APD and SUPO for construction of another development drill
site and one-half mile of road construction in the same field, the
total miles of road construction allowable under the category would be
exceeded for the field, the proposed CE could no longer be available
for such a proposal, and the direct and cumulative effects of
additional field development should be considered in an EA or EIS.
Note that when exploration wells are drilled, they are not yet
associated with a particular field. However, if an exploration well is
determined to be capable of production, it then can be associated with
a field (determined by the BLM) and for purposes of the proposed CE,
all exploration activities that occurred within the field and
subsequent development activities would be chargeable under the
category.
There is potential that new oil and gas fields could be located
adjacent to existing developed fields. States delineate fields, in
coordination with the BLM, within their boundaries. Fields are areas
consisting two or more producing wells in an oil or gas reservoir or
reservoirs related to the same individual geological structural
feature. Such reservoirs may be interconnected or separated. In such
cases, concerns over identifying environmental effects resulting from
activities on the adjacent fields would be addressed through the
following two methods. First, before NFS lands are offered for lease, a
leasing analysis is conducted that evaluates potential environmental
consequences resulting from field development. On NFS Lands, this
leasing analysis is conducted by the Forest Service in cooperation with
the BLM. Second, an extraordinary circumstances review identified in
Forest Service Handbook 1909.15, Chapter 30 would be conducted for a
particular leasing proposal implementing the proposed CE. It is the
degree of the potential effect of the proposed action on these resource
conditions, which determines whether extraordinary circumstances exist.
Rationale for the Proposal
As previously stated, the Deputy Chief for the NFS requested field
units to monitor oil and gas exploration and development projects
assessed in an EA and approved and constructed, or partially
constructed, between October 1, 1999 and September 30, 2004. In
response, field units collected data on 73 projects.
The scope of the proposed new category is consistent with the scope
of the 73 projects examined in the 2005 review, each of which had no
significant environmental effects. The agency believes the level of
effects associated with future activities within the proposed new
category would also be below the level of significant environmental
effects.
In addition to reviewing the 73 oil and gas exploration and
development projects a review of the analyses supporting oil and gas
leasing was also performed. A sample of land and resource management
plans for National Forests and Grasslands and leasing EIS decisions,
where future oil and gas field development is anticipated, was
reviewed. The review found that when future activities were expected to
have a significant environmental effect or would be incompatible with
other forest or grassland uses, such areas had been identified as not
suitable and exploration or development had been prohibited.
Furthermore, the use of best management practices such as class III
archeological surveys, or biological
[[Page 73724]]
surveys, resulted in avoidance or mitigation as necessary, and
contributed to the defined category of oil and gas activities having no
significant environmental impacts.
The proposed CE will not apply where there are extraordinary
circumstances, such as adverse effects on threatened and endangered
species or their designated critical habitat, wilderness areas,
inventoried roadless areas, wetlands, and archeological or historic
sites.
It is important to note that CEs do not allow a Responsible
Officials to forgo scoping. The CEQ regulations at 40 CFR 1501.7 define
scoping as a process for determining the scope of issues to be
addressed and for identifying significant issues to be documented in an
EIS. The Forest Service conducts scoping on all proposed actions,
including those covered by CEs. Guidance to Forest Service employees in
FSH 1909.15, Chapter 10 provides that interested and affected agencies
and citizens may be invited to participate in the scoping process and
further states in Chapter 11 that in determining whether a proposed
action can be categorically excluded, the Responsible Official must
consider: (1) The nature of the proposal; (2) preliminary issues; (3)
interested and affected agencies, organizations, and individuals, and;
(4) the extent of existing documentation. Furthermore CEs do not
absolve the Responsible Official from conducting appropriate
consultations with Federal and state regulatory agencies such as those
required by the Endangered Species Act and the National Historic
Preservation Act. Any activities authorized using the proposed CE must
meet all applicable Federal, state, and local laws, as well as land and
resource management plan standards and guidelines.
Description of the Leasing Process
The Department of the Interior, Bureau of Land Management (BLM),
acts as the onshore leasing agent for the federal government. The BLM
schedules and conducts competitive bid lease sales, collects the bonus
bids and issues leases to the successful bidders. As a land management
agency, the Forest Service decides whether or not lands will be
available for leasing, and under what conditions (stipulations) the
leases will be issued. Forest Service decisions about leasing are made
in conjunction with approved forest or grassland and resource
management plans, as well as in separate forest-wide or area-specific
leasing decisions. Land management plan oil and gas leasing
availability decisions are made in compliance with the National
Environmental Policy Act as well as other laws such as the Endangered
Species Act and the National Historic Preservation Act, and includes
public notice and opportunity for comment. The BLM is an official
cooperator in these efforts.
The Energy Policy and Conservation Act (EPCA) directed the BLM, in
cooperation with the Forest Service, to summarize Forest Service and
BLM plan leasing decisions. In two phases, the highest potential
onshore geologic basins were studied. The studies show that for the NFS
lands studied 47% are off-limits to any surface exploration or
development (due to legal and administrative withdrawal, a ``no
leasing'' decision or a ``no surface occupancy'' lease), 19% are
available to exploration and development under standard lease terms and
restrictions, and 34% are subject to additional restrictions beyond the
standard lease terms and restrictions for additional protection of
other forest or grassland resources or uses. The study shows that oil
and gas exploration or development activity is not allowed or is
restricted where such activity would have a significant environmental
effect or be incompatible with other forest or grasslands uses or
management schemes. The screening that occurs at the leasing decision
stage contributes significantly to the findings of no significant
environmental impacts of the 73 projects studied.
Description of the Process and Best Management Practices for Approving
Exploration or Development of a Lease
For oil and gas exploration and development on NFS lands there is
an element of overlap in the implementation of Best Management
Practices (BMPs) and mitigation measures. There may be additional
environmental protections added at each stage. This overlap occurs as
environmental protections are added at multiple scales of
implementation, including: (1) During the land management planning
process the agency considers the overall multiple uses of its renewable
resources while maintaining the long-term productivity of the land.
Resources are managed so they are utilized in a combination that will
best meet the needs of the American people and maintain or restore the
health of the land to provide a sustainable flow of uses, benefits,
products, services and visitor opportunities; (2) The leasing process
developed through the land management planning process or separately
evaluates those areas that will be: (a) open to development subject to
the terms and conditions of the standard oil and gas lease form; (b)
open to development but subject to constraints that will require the
use of lease stipulations; and (c) closed to leasing, distinguishing
between those areas that are being closed through exercise of
management direction, and those closed by law, regulation, etc.; (3)
Individual NEPA analysis on the SUPO, a component of the APDs, includes
site-specific BMP and mitigations measures, and; (4) Implementation
monitoring then occurs and informs future development of BMPs,
mitigation measures or standard stipulations.
For the 19% of the NFS lands subject to standard lease terms (as
well as 34% with lease restrictions), a permit must be obtained and
best management practices followed. Federal oil and gas leases have
extensive requirements for environmental protection. Oil and gas
exploration and development must comply with the Secretary of
Agriculture's rules and regulations for use and occupancy of NFS lands
and with additional environmental protections developed specifically
for oil and gas exploration and development in Forest Service
regulations 36 CFR part 228 subpart E, BLM regulations 43 CFR part
3100, and Onshore Oil and Gas Orders. For example, under Forest Service
regulations 36 CFR 228.108(d) operators are required to report findings
of cultural and historical resources to the authorized Forest officer
immediately. Under BLM regulations 43 CFR part 3100 environmental
protection is guided, in part, through the requirements of surety
bonding required to be submitted by operators. BLM Onshore Oil and Gas
Order 1, which has been adopted by the Forest Service,
furthers these environmental protection measures by requiring an on-
site review of every proposed ADP for the purpose of identifying
resource concerns.
Oil and gas exploration and development must also be consistent
with the land management plan direction (forest or grassland land
management plans) including any current and applicable standards and
guidelines developed under the 1982 planning rule and continuing under
the 2005 planning rule..
Lessees are required to conduct operations in a manner that
minimizes adverse impacts to the land, air, and water, to cultural,
biological, visual, and other resources through such measures as
modification to siting or design of facilities, timing of operations,
and specification of interim and final reclamation measures. Current
best management practices include site specific historic or cultural,
botany and
[[Page 73725]]
wildlife surveys. National Pollutant Discharge Elimination System
(NPDES) permits must be obtained from the state, and air quality
standards met. The review of the 73 projects demonstrated repeatedly
that projects are moved, delayed or changed to successfully avoid
environmental impacts.
It is the conclusion of the agency that the combination of agency
leasing decisions, forest or grassland land management plan standards
and guidelines, best management practices, and current laws and
regulations reduce the potential environmental effects for certain oil
and gas activity to insignificance. The limited scope of the proposed
CE leads the agency to conclude that implementation of the proposed
category would not result in individually or cumulatively significant
effects on the human environment. This proposed CE applies exclusively
to the Forest Service's review and approval of an applicant's SUPO and
does not eliminate the environmental analysis requirement for the
leasing decision.
Regulatory Certifications
Environmental Impact
The proposed revision to Forest Service Handbook 1909.15 would add
direction to guide field employees in the USDA Forest Service regarding
requirements for NEPA documentation for particular oil and gas
exploration and development activities. The Council on Environmental
Quality does not direct agencies to prepare a NEPA analysis or document
before establishing agency procedures that supplement the CEQ
regulations for implementing NEPA. Agencies are required to adopt NEPA
procedures that establish specific criteria for, and identification of,
three classes of actions: Those that require preparation of an EIS;
those that require preparation of an EA; and those that are
categorically excluded from further NEPA review (40 CFR 1507.3(b)).
Categorical exclusions are one part of those agency procedures, and
therefore establishing categorical exclusions does not require
preparation of a NEPA analysis or document. Agency NEPA procedures are
internal procedural guidance to assist agencies in the fulfillment of
agency responsibilities under NEPA, but are not the agency's final
determination of what level of NEPA analysis is required for a
particular proposed action. The requirements for establishing agency
NEPA procedures are set forth at 40 CFR 1505.1 and 1507.3. The
determination that establishing categorical exclusions does not require
NEPA analysis and documentation has been upheld in Heartwood, Inc. v.
U.S. Forest Service, 73 F. Supp. 2d 962, 972-73 (S.D. Ill. 1999),
aff'd, 230 F. 3d 947, 954-55 (7th Cir. 2000).
Regulatory Impact
This proposed interim directive has been reviewed under USDA
procedures and Executive Order 12866 on Regulatory Planning and Review.
The Office of Management and Budget (OMB) has determined that this is a
significant regulatory action as defined by Executive Order 12866.
Accordingly, OMB has reviewed this proposed interim directive.
The primary economic effects of the proposed CE for oil and gas
leases are changes in costs of conducting environmental analysis and
preparing NEPA documents. The proposed categorical exclusion would
reduce agency costs by reducing the documentation requirements for
certain oil and gas exploration and development on NFS land under
existing Federal leases.
Effects on local economies and small business entities are expected
to be nearly the same using either an EA or CE for oil and gas
exploration and development activities. There is potential for an
increase in certain oil and gas exploration and development projects
and increase in site administration since they would be faster and
cheaper to prepare.
Total undiscounted costs for CEs were estimated at $8 million with
an annual average cost of $0.8 million, while the undiscounted cost for
EAs for the same timeframe would be $48 million with an annual average
cost of $4.8 million. There is an annual average cost saving of $4
million for the proposed CE. A comparison of the discounted costs also
shows the same direction of cost saving for CEs over EAs. An annual
average saving of discounted cost of $3 million for CEs is estimated.
This quantitative assessment indicates a cost savings for using CEs for
oil and gas exploration and development projects for the agency.
A civil rights impact analysis was prepared for the proposed CE. No
potential impacts are identified for groups of people who fall within
the scope of Civil Rights legislation or the Executive Order on
Environmental Justice (E.O. 12898).
Federalism
The agency has considered this proposed directive under the
requirements of Executive Order 13132 issued August 4, 1999 (E.O.
13132), ``Federalism.'' The agency has made an assessment that the
proposed directive conforms with the Federalism principles set out in
this Executive order; would not impose any compliance costs on the
States; and would not have substantial direct effects on the States, on
the relationship between the national government and the States, nor on
the distribution of power and responsibilities among the various levels
of government. Therefore, the agency concludes that the proposed
directive does not have Federalism implications.
Consultation and Coordination With Indian Tribal Governments
This proposed directive has been reviewed under E.O. 13175 of
November 6, 2000, ``Consultation and Coordination With Indian Tribal
Governments.'' This proposed directive does not have substantial direct
effects on one or more Indian Tribes, on the relationship between the
Federal government and Indian tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian tribes.
Nor does this proposed directive impose substantial direct compliance
costs on Indian tribal governments or preempt tribal law. Therefore, it
has been determined that this proposed directive does not have tribal
implications requiring advance consultation with Indian tribes.
No Takings Implications
This proposed directive has been analyzed in accordance with the
principles and criteria contained in E.O. 12630 on Governmental Actions
and Interference with Constitutionally Protected Property Rights, and
it has been determined that the proposed directive does not pose the
risk of a taking of Constitutionally protected private property.
Energy Effects
This proposed directive has been reviewed under E.O. 13211 on
Actions Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use. It has been determined that this proposed
directive does not constitute a significant energy action as defined in
the Executive Order.
Controlling Paperwork Burdens on the Public
This proposed directive does not contain any additional
recordkeeping or reporting requirements associated with onshore oil and
gas exploration and development or other information collection
requirements as defined in 5 CFR part 1320. Accordingly, the review
[[Page 73726]]
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.) and its implementing regulations at 5 CFR part 1320 do not apply.
Dated: December 5, 2005.
Dale N. Bosworth,
Chief.
Text of Proposed Directive
Note: The Forest Service organizes its directive system by
alpha-numeric codes and subject headings. Only the section of the
FSH 1909.15, Environmental Policy and Procedures Handbook, affected
by this proposed directive is included in this notice. Please note,
however, that category 15 (para. 16) is reserved. A notice for
comment was published for category 16 on January 5, 2005 (70 FR
1062). A final directive for this CE has not been adopted as of the
date of publication of this Federal Register notice. The complete
text of FSH 1909.15, Chapter 30 may obtained by contacting the
individuals listed in FOR FURTHER INFORMATION CONTACT or from the
Forest Service home page on the World Wide Web at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fs.fed.us/im/directives/fsh/1909.15/1909.15
,30.txt. The intended
audience for this direction is Forest Service employees charged with
planning and administering oil and gas exploration and development
projects on NFS lands under Federal lease.
FSH 1909.15--Environmental Policy and Procedures Handbook Chapter 30--
Categorical Exclusion from Documentation
Add new paragraphs 16 and 17 as follows:
31.2--Categories of Action for Which a Project or Case File and
Decision Memo Are Required
Routine, proposed actions within any of the following categories
may be excluded from documentation in an EIS or an EA; however, a
project or case file is required and the decision to proceed must be
documented in a decision memo (sec. 32). As a minimum, the project or
case file should include any records prepared, such as: The names of
interested and affected people, groups, and agencies contacted; the
determination that no extraordinary circumstances exist; a copy of the
decision memo (sec. 05); and a list of the people notified of the
decision. Maintain a project or case file and prepare a decision memo
for any of the categories of actions set forth in section 21.21 through
31.23.
* * * * *
16. [Reserved]
17. Approval of a Surface Use Plan of Operations for oil and
natural gas exploration or development activities within a new oil and/
or gas field, so long as the approval will not authorize activities in
excess of any of the following:
a. One mile of new road construction
b. One mile of road reconstruction
c. Three miles of pipeline installation
d. Four drill sites.
[FR Doc. 05-23983 Filed 12-12-05; 8:45 am]
BILLING CODE 3410-11-P