Documentation and Tracking Requirements for Waivers, Exceptions, and Modifications for Fluid Minerals Exploration and Development Activities

United States Department of the Interior
BUREAU OF LAND MANAGEMENT
Grand Junction, Colorado 81506
https://www.blm.gov

November 3, 2021

In Reply Refer To:
3100 (HQ-310) P
Supersedes PIM No. 2019-006

EMS TRANSMISSION 11/05/2021
Instruction Memorandum No. 2022-003
Expires:  09/30/2024

To:                  All Field Office Officials

From:              Assistant Director, Minerals, Realty and Resource Protection

Subject:           Documentation and Tracking Requirements for Waivers, Exceptions, and Modifications for Fluid Minerals Exploration and Development Activities

DD: Quarterly, every Fiscal Year

Program Area: Fluid Minerals Exploration and Operations.

Purpose: This Instruction Memorandum (IM) and attached instructions provide guidance for reviewing, approving, and tracking Waivers, Exceptions, and Modifications (WEMs) made to lease stipulations for Fluid Minerals leases. Guidance is also provided for adapting the WEM process to Conditions of Approval (COAs) attached to Applications for Permit to Drill (APDs). This IM updates expired policy announced in IM No. 2008-032, Exceptions, Waivers, and Modifications of Fluid Minerals Stipulations and Conditions of Approval, And Associated Rights-of-way Terms and Conditions, issued on November 19, 2007, and supersedes existing policy announced in permanent IM No. 2019-006, Documentation and Tracking Requirements for Waiver, Exceptions, Modifications for Fluid Mineral Exploration and Development Activities, issued on June 14, 2019, and supersedes any conflicting guidance or directive found in BLM Manuals or Handbooks.

Administrative or Mission Related: This IM is directly related to the BLM mission. 

Policy/Action: In accordance with the Bureau of Land Management (BLM) Land Use Planning Handbook (H-1601-1), the circumstances for granting WEM requests for lease stipulations are to be documented in the Resource Management Plan (RMP). The plan must also identify the general documentation requirements and any public notification associated with granting WEM requests, as necessary.

Field Offices typically receive exception requests from the operator to a lease stipulation through an APD submittal, or to a COA as a Sundry Notice on an approved APD. Since there are no requirements for operators to submit their exception requests electronically; operators should be encouraged to electronically submit a Sundry Notice 3160-5 when an exception request applies to subsequent actions on an approved APD. Exception request type Sundry Notices submitted electronically are tracked through the Automated Fluid Minerals Support System (AFMSS), reporting out using Oracle Business Intelligence Enterprise Edition.

The State Office is the authorized officer for lease waivers and modifications, which are typically received by letter, or submitted to the Field Office with the APD or via sundry notice. Regardless of how a request may be submitted, when the Field Office receives a request for lease modification or waiver, they will notify their State Office to determine whether the request is considered substantial, prior to preparation of any environmental review. As a result of the environmental review process, the Field Office will prepare and forward a formal recommendation to their State Office.

Except where the request for exception is made while the well is undergoing active drilling operations, all decisions on exceptions are subject to State Director Review (refer to 43 CFR 3165.3 and 43 CFR 3185.1). A WEM request may be approved when 1) the authorized officer determines that the factors leading to its inclusion in the lease have changed sufficiently to make the protection provided by the stipulation no longer justified; or 2) the proposed operations would not cause unacceptable impacts. All decisions on WEM requests must be in conformance with the applicable Resource Management Plan.

To determine long-term tracking needs, the BLM has developed a Workbook and posted it to the National Surface SharePoint site where all State and Field Offices will track requests and their decisions for WEM requests, including those requests which are only informally discussed and are not pursued by the operator. Beginning in FY 2021, State and Field Offices will update the Workbook with the WEM requests received and the BLM decisions for WEM requests at least quarterly, including those requests which are only informally discussed are not pursued by the operator.

Attachment 1 to this IM supplements the information in BLM Planning for Fluid Mineral Resources Handbook (H-1624-1) and the 2007 Onshore Oil and Gas Order No. 1, by including additional guidance on incorporating waivers, exceptions, and modifications into land use plans; making changes to lease stipulations prior to issuance of the oil and gas lease; and approval of waivers, exceptions, and modifications during the APD process and during energy development operations.

Timeframe: Effective immediately.

Budget Impact: None. There is no increased workload anticipated with implementing the guidance specified in this IM since most BLM Field Offices already track these requests locally.

Background: This IM is consistent with implementing the Administration’s goals of addressing the climate crisis and restoring balance on public lands and waters. In applying an Adaptive Management approach[1] to oil and gas related activities to address changing resource conditions, RMPs and associated lease stipulations must conform to the guidance in this IM for processing and documenting WEMs for Fluid Mineral exploration and development activities. As appropriate, stipulations will use Adaptive Management principles to incorporate the best available science and address changing resource conditions. 

On April 25, 2017, the Government Accountability Office (GAO) issued a report, GAO-17-307, titled “Oil and Gas Development: Improved Collection and Use of Data Could Enhance BLM’s Ability to Assess and Mitigate Environmental Impacts.” The GAO identified in its report that BLM does not have a consistent process for considering exception requests, documenting decisions, and tracking these requests. On June 14, 2019, the BLM issued PIM 2019-006, “Documentation and Tracking Requirements for Waivers, Exceptions, and Modifications for Fluid Mineral Exploration and Development Activities,” to address the three recommendations made by the GAO in regards to improving BLM’s waiver, exception, and modification request processing.

The BLM believes that it is necessary to clarify and expand upon existing waiver, exception, and modification guidance contained in law, regulations, handbooks, and other policy documents. Additionally, the BLM has provided a Workbook on the National Surface SharePoint site that is a modification of existing internal checklists being used by Field Offices for processing exceptions and documenting the decision process. This revised guidance and Workbook on the National Surface SharePoint site will ensure that BLM has addressed the GAO’s recommendations concerning a consistent process for considering exception requests, documenting decisions, and tracking these requests.

Manual/ Handbook Sections Affected: None.

Coordination: Coordination occurred among the BLM Headquarters Office, Division of Fluid Minerals, and State and Field offices, and the Department of the Interior’s Office of the Solicitor.

Contact: If State Directors have any questions concerning this IM, please contact me at 202-208-4201. Your staff may contact Sheila Mallory, Acting Division Chief, BLM Headquarters Division of Fluid Minerals (HQ-310) at 775-287-3293, smallory@blm.gov; or Janna Simonsen, Senior Natural Resource Specialist (HQ-310), at 202-821-8081, jsimonsen@blm.gov

Signed by:                                           Authenticated by:
Nicholas E. Douglas                           Robert M. Williams
Assistant Director                               Division of Regulatory Affairs and Directives,(HQ-630)
Energy, Minerals and Realty
   Management

1 Attachment
1 -  Instructions for Documentation of Waivers, Exceptions, and Modifications for Lease Stipulations and Conditions of Approval (6 pp)