NEPA Efficiencies for Oil and Gas Development

UNITED STATES DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
WASHINGTON, D.C. 20240

https://www.blm.gov

June 6, 2018

In Reply Refer To:
1790, 2800, 3100 (210/310350) P

EMS TRANSMISSION 06/06/2018
Information Bulletin No. 2018-061

To: All Field Officials

From: Deputy Director, Policy and Programs

Subject: NEPA Efficiencies for Oil and Gas Development

Program Areas: Oil and Gas, Lands and Realty, National Environmental Policy Act.

Purpose: The Bureau of Land Management (BLM) intends to comply with the National Environmental Policy Act (NEPA) in the most expeditious and appropriate manner. To facilitate this goal, the BLM will consider, when evaluating proposals for fluid mineral development, whether it can rely on existing NEPA analyses for assessing the impacts of a proposed action, such as an application for permit to drill (APD) or infrastructure proposal, or whether there is an applicable categorical exclusion (CX) and therefore neither an Environmental Assessment (EA) nor an Environmental Impact Statement (EIS) is required. The purpose of this IB is to remind BLM offices of the existing procedures for streamlining NEPA review under applicable statutes, regulations, and guidance and to encourage BLM offices to use these tools consistently and effectively. These tools include: (1) Determinations of NEPA Adequacy (DNAs), (2) statutory and administrative CXs, and (3) oil and gas field-wide programmatic NEPA analyses based on reasonable foreseeable development scenarios that can be used to expedite compliance with NEPA at the APD stage.

Policy/Action: A proposal for discretionary Federal action triggers NEPA. The NEPA process is initiated when a proposal has been developed by, or submitted to the BLM. As a federal agency, the BLM must meet NEPA requirements whenever it is the BLM's decision that would result in an effect on the human environment, even when the effect would be beneficial and regardless of who proposes the action or where it will take place ( 40 CFR 1508.18). 

The BLM will seek to expedite the processing of APDs or infrastructure proposals for fluid mineral development by first considering if it can rely on existing NEPA analyses for assessing the impacts of a proposed action and the possible alternatives to the proposal ( 43 CFR 46.120). If existing NEPA analyses are sufficient to support the proposed decision, then BLM should document its reliance on these existing analyses in a DNA, as provided for in 516 DM 11.6, or by adopting or incorporating these analyses into a new NEPA document, or by tiering new analysis so that the existing analysis is effectively used as support for the new proposal.

If the BLM cannot make a DNA, the BLM should consider whether there is an applicable CX.  To do so, following the Department of the Interior procedures for implementing NEPA, 43 CFR 46.10, BLM field offices will assess whether it would be appropriate to rely on any of the CXs identified in the BLM National Environmental Policy Act (NEPA) Handbook H-1790-1, which lists and explains the use of CXs adopted by the Department of the Interior ( 43 CFR 46.21 0) or BLM (516 DM 11.9), and the statutorily established CXs from section 390 of the Energy Policy Act of 2005 (42 U.S.C. 15942).

If no CX applies to the proposed action and if existing NEPA analysis is inadequate or unavailable to support the proposed action, then the BLM should prepare a new EA, or if necessary a new EIS. Again, to comply with NEPA in the most expeditious and appropriate manner, the BLM should first consider whether other avenues for NEPA compliance are available before preparing a new EA or a new EIS.

I. Use of DNAs

DNAs should be used to the greatest extent possible and consistent with 516 DM 11.6.  Completion of the DNA worksheet documents that a proposed action has already been adequately evaluated in existing EAs or EISs. This can include multiple existing NEPA documents (NEPA Handbook, H-1790-1, Appendix 8). Refer to the BLM NEPA Handbook, section 5.1 for further guidance.

II. Use of Statutory and Administrative CXs

Use available CXs, as appropriate and consistent with the requirements at 43 CFR 46.205 and 46.215. The regulations make clear that when Congress establishes CXs by legislation, the terms of the legislation determine how to apply those CXs (43 CFR 46.205(d)).

A. CXs Established by the Energy Policy Act

Section 390 of the Energy Policy Act established a "rebuttable presumption" that the use of a CX under NEPA would apply to certain development activities on federal oil and gas leases. Absent evidence to the contrary, the statutorily established CXs are presumed to apply if the activity is conducted pursuant to the Mineral Leasing Act for the purpose of exploration or development of oil or gas. See BLM NEPA Handbook H-1790-1 (Section 4.1; Appendix 2). As the BLM NEPA Handbook notes, at Chapter 4.1, "these CXs are different in application from the Departmental CXs and the BLM non-Energy Act CXs. Energy Policy Act CXs do not require review for extraordinary circumstances. This is because these CXs are established by statute, and their application is governed by that statute." Section 390 established five CXs specifically for oil and gas development:

1. Individual surface disturbances of less than 5 acres so long as the total surface disturbance on the lease is not greater than 150 acres and site specific analysis in a document prepared pursuant to NEPA has been previously completed.
2. Drilling an oil or gas well at a location or well pad site at which drilling has occurred previously within 5 years prior to the date of spudding the well.
3.  Drilling an oil or gas well within a developed field for which an approved land use plan or any environmental document prepared pursuant to NEPA analyzed such drilling as a reasonably foreseeable activity, so long as such plan or document was approved within 5 years prior to the date of spudding the well.
4. Placement of a pipeline in an approved right-of-way corridor, so long as the corridor was approved within 5 years prior to the date of placement of the pipeline.
5. Maintenance of a minor activity, other than any construction or major renovation or a building or facility.

Pub. L. No. 109-58, Title III, Sec. 390, Aug. 8, 2005, 119 Stat. 747 (2005) (codified at 42 U.S.C. 15942).

B. CXs Established by the BLM

The following BLM-specific CXs listed in 516 OM 11.9, may be applicable to oil and gas development activities, except when BLM finds there are extraordinary circumstances:

 B. Oil, Gas, and Geothermal Energy

• Issuance of future interest leases under the Mineral Leasing Act for Acquired Lands, where the subject lands are already in production.
• Approval of Notices of lntent to conduct geophysical exploration of oil, gas, or geothermal, pursuant to 43 CFR 3150 or 3250, when no temporary or new road construction is proposed.

 E. Realty

• Grants of right-of-way wholly within the boundaries of other compatible developed rights-of-way.
• Amendments to existing rights-of-way, such as the upgrading of existing facilities, which entail no additional disturbances outside the right-of-way boundary.
• Grants of rights-of-way for an overhead line (no pole or tower on BLM land) crossing over a comer of public land.
• Temporary placement of a pipeline above ground.
• Issuance of short-term (3 years or less) rights-of-way or land use authorizations for such uses as storage sites, apiary sites, and construction sites where the proposal includes rehabilitation to restore the land to its natural or original condition.
• One-time issuance of short-term (3 years or less) rights-of-way or land use authorizations which authorize trespass action where no new use or construction is allowed, and where the proposal includes rehabilitation to restore the land to its natural or original condition.

J. Other

• Conducting preliminary hazardous materials assessments and site investigations, site characterization studies and environmental monitoring.  Included are siting, construction, installation and/or operation of small monitoring devices such as wells, particulate dust counters and automatic air or water samples.
• Use of small sites for temporary field work camps where the sites will be restored to their natural or original condition within the same work season.

C. CXs Established by the Department

BLM offices should consider whether any of the CXs established by the Department of the Interior may apply (43 CFR 46.210).

III. Other NEPA Streamlining Techniques

A. Group APDs to expedite and, where possible, tier NEPA reviews:

• Where practicable, in the absence of a DNA or the application of a CX, the BLM should evaluate multiple APDs as a Master Development Plan (MDP) in one NEPA document -either an EA or EIS. This type of NEPA document can be tiered to existing EAs or EISs, when available, and incorporate by reference relevant impact analysis, such as any available cumulative impact analyses. The BLM may also include with the grouping in the EA (or EIS) sundry notices or proposed oil and gas Rights of Ways (ROW) with infrastructure with surface disturbance granted under the Mineral Leasing Act or Federal Land Policy and Management Act. Careful grouping is recommended because a well(s) or infrastructure with specific issues may hold up other wells from getting approved.
• Evaluating Plans of Development (PODs) or MDPs, including infrastructure, through one EA or EIS may be more efficient when working with an Interdisciplinary (ID) Team and produce better analysis than the use of section 390 CXs.
• An EA may be prepared, and a finding of no significant impact reached, for a proposed action with significant effects, whether direct, indirect, or cumulative, if the EA is tiered to a broader EIS that fully analyzed and disclosed those significant effects (BLM NEPA Handbook, H-1790-1, Section 5.2.2) and as long as any previously unanalyzed effects are not significant. A finding of no significant impact other than those already disclosed and analyzed in the EIS to which the EA is tiered is referred to as a finding of"no new significant impact" by the Department of the Interior regulations at 43 CFR 46.140.

B. Use tiering and incorporation by reference:

• Permitting may be expedited by tiering or incorporating by reference to a fielddevelopment programmatic EA(s), EIS(s), leasing NEPA document, or Resource Management Plan (RMP) [Land Use Plan (LUP)] with a Reasonably Foreseeable Development (RFD) scenario that analyzed effects of oil and gas development and implement mitigation measures ( conditions of approval), if applicable, during site specific development. Technical "white papers" may also be incorporated by reference so long as they have been made available for public review and comment at some point in the current NEPA analysis process (e.g., during the public review of the draft EIS or during scoping in an EA) ( 40 CFR I 502.21 ). For example, these may include air quality or hydraulic fracturing analysis.
• Additional guidance for RFDs is found in WO IM-2004-089 Policy for Reasonably Foreseeable Development (RFD) Scenario for Oil and Gas; and the Planning for Fluid Mineral Resources BLM Handbook H-1624-1 Chapter III-7 & III-I 2.
• If a cumulative impact analysis of appropriate scope has not already been conducted in the BLM office, the office is encouraged to develop this analysis to expedite processing times by incorporating it in an appropriately scaled NEPA document that subsequent NEPA documents can tier to or that can form the basis for documentation of a DNA, especially if the office anticipates the need to process hundreds or thousands of wells. In addition, certain 390 CXs require existing NEPA analysis as a condition of their use.

IV. Meeting NEPA's Public Review Requirements

Determine the level of public review required for the type of NEPA analysis being prepared.  The level of public involvement may vary with different types of NEPA compliance and decision-making.

• The BLM NEPA Handbook, H-1790-1, states: "If you conclude that additional public involvement is necessary, the type of public involvement is at the discretion of the decision-maker ... " While some public involvement is required in the preparation of an EA, the decision-maker has the discretion to determine how much, and what kind of involvement works best for each individual EA. Similarly, in some circumstances, only public posting of a completed DNA worksheet may be appropriate.
• Public review may be necessary in the following circumstances (see 40 CFR 1501.4):
• The proposal is a borderline case (such as when there is a reasonable argument for preparation of an EIS);
• It is an unusual case, a new kind of action, or a precedent-setting case, such as a first intrusion of even a minor development into a pristine area;
• There is either scientific or public controversy over the effects of the proposal; or
• It involves a proposal that is similar to one that normally requires preparation of an EIS.
• Consider the complexity of the project and issues, as well as the level of public interest, in determining the length of review and comment period.
• A public comment period may be unnecessary. For example, if site specific analysis is rarely commented on and there is no or minimal public or stakeholder engagement for routine or similar EAs.

Timeframe: This Information Bulletin (IB) is effective immediately.

Budget Impact: This policy will result in more efficient use of staff time in using a variety of appropriate methods to fulfill NEPA obligations. Additional resources may be needed to conduct cumulative impact analysis, so that site specific permitting can be expedited. Additional training on the appropriate use of DNAs and tiering will facilitate implementation of this IB and may add a minor additional budget impact in the short term.

Background: On July 5, 2017, the Secretary issued Order No. 3354, Supporting and Improving the Federal Onshore Oil and Gas Leasing Program and Federal Solid Mineral Leasing Program. Section 3(c) of SO 3354 directs the BLM to develop an effective strategy to address permitting applications efficiently and effectively as well as develop clear and actionable goals for reducing the permit processing time. This IB responds to this direction by reminding BLM offices of tool available under applicable statutes, regulations, and policies to facilitate expeditious and appropriate processing of applications for energy development permits.

Manual/Handbook Sections Affected: None are affected.

Coordination: The policy was coordinated with the 200 Directorate and with the U.S. Department of the Interior Office of the Solicitor.

Contact: If there are any questions concerning this IB, please contact Timothy Spisak, Acting Assistant Director, Energy, Minerals and Realty Management at 202-208-4201 or email tspisak@blm.gov.

Signed by:
Brian C. Steed
Deputy Director, Policy and Programs

Authenticated by:
Catherine Emmett
WO-870 IT Policy and Planning

Attachment: Appendix 2 of BLM NEPA Handbook (H-1790-1), "Using Categorical Exclusions Established by the Energy Policy Act."