US officials defend exclusions used in land management

Categorical exclusions (CEs) from environmental documentation authorized under the Energy Policy Act of 2005 are not compromising federal lands in the US West, land-use officials told a hearing by two House Resources Committee subcommittees on Apr. 26.

Nick Snow
Washington Correspondent

WASHINGTON, DC, Apr. 27 -- Categorical exclusions (CEs) from environmental documentation authorized under the Energy Policy Act of 2005 are not compromising federal lands in the US West, land-use officials told a hearing by two House Resources Committee subcommittees on Apr. 26.

Section 390 of the law allows the Bureau of Land Management to use five CEs for onshore oil and gas activities in development areas that have gone through full analysis under the National Environmental Policy Act (NEPA), said Tony L. Ferguson, minerals and geology management director at the US Forest Service.

New activity must be within existing areas with land use plans approved within the previous 5 years or with surface disturbance limited to 5 acres and a previous project with a NEPA process decision, he said.

"These are not rubber stamps. Other environmental laws apply, and there are instances where we have added conditions," Ferguson told the Energy & Minerals Resources and the National Parks, Forests and Public Lands subcommittees.

Public involvement in the CEs is limited because extensive NEPA and other evaluations on the sites already have taken place, said Henri Bisson, BLM's deputy director for operations.

"But their use does not exclude application of other regulations. We provide guidance to our managers encouraging consultation with other agencies where appropriate," he said. The Forest Service has used Section 390 CEs to approve about 300 projects.

Additional CE
The US Dept. of Agriculture agency promulgated another CE for limited oil and gas exploration and development in new fields, he said in written testimony.

He said the White House Council on Environmental Quality reviewed the new CE and determined that it conforms to NEPA and its implementing regulations. The new exclusion allows approval of a surface operations plan for oil and gas work and initial development activities adjoining a new field. But it limits activity to 1 mile of new road construction, 1 mile of road reconstruction, 3 miles of individual or colocated pipelines or utilities disturbance, and 4 drillsites.

The new CE has been used twice since its approval on Feb. 15, Ferguson said.

Western governors generally support the CEs authorized in the 2005 energy act, according to John Emmerich, deputy director of the Wyoming Game & Fish Dept. He testified on behalf of the Western Governors Association and the Association of Fish & Wildlife Agencies.

Emmerich added, however, that western states' chief executives believe a CE provision in a subpart of the law "appears to provide a legal option to deny state fish and wildlife agencies the opportunity to protect and adequately manage fish and wildlife resources on BLM lands by authorizing oil and gas development without adequate analysis, disclosure, and state agency involvement."

WGA seeks removal of that type of CE.

Bisson said BLM asks its project managers to call for "best management practices" in applications for permits to drill and associated rights-of-way. These include:

-- Reducing the "footprint" of roads and wellheads by choosing the smallest safe standard and best location for facilities, and by employing interim reclamation.

-- Selecting colors, shapes, sizes, and locations of facilities that reduce visual contrast.

-- Discouraging raptor predation on sensitive species by installing perch-avoidance structures or buying power lines on lease areas.

-- Reducing wildlife disturbance by centralizing or automating production facilities to reduce frequency of travel to each wellhead.

-- Using common utility corridors or burying flowlines in a roadway or an adjacent right-of-way.

-- Drilling multiple wells from a single location, centralizing production facilities, or moving facilities away from the site.

"Much of the cleanup we're doing now is from wells drilled in the 1920s and '30s. None of the operators today are walking away from leases without doing proper reclamation," Bisson said.

Reclamation bonds
But Peggy Utesch, a Colorado landowner testifying on behalf of the Western Organization of Resource Councils and Western Colorado Congress, said higher reclamation bonds are needed.

In 2004, she said, BLM and the Wyoming government estimated it would cost $4 million to reclaim 120 wellsites that Emerald Restoration & Production abandoned 3 years earlier under a $125,000 blanket bond. The state's conservation fund contributed $2.6 million, "but the balance will be paid by taxpayers or the cleanup will not happen," she said.

Claire M. Moseley, executive director of Public Lands Advocacy in Denver, noted that BLM determines the amount of the bonds. "It is not a function of the industry. Nevertheless, producers work hard with landowners to reach agreements. States also develop their own laws. No one believes a one-size-fits-all approach will work," she said.

Moseley said the bonds' purpose is to make the operator aware of its reclamation responsibility, not cover the entire cost which can run into hundreds of thousands of dollars in some cases. "The small operators would be the ones most affected by increased bonding costs. They would be the ones who wouldn't drill wells as a result," she said.

Utesch responded: "There are two ways to look at small producers and what they do. I have seen instances where they have chosen to walk away from a $25,000 bond instead of paying $100,000 for proper reclamation."

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