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National Environmental Policy Act Documentation Needed for Oil and Natural Gas Exploration and Development Activities (Categorical Exclusion)
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: February 15, 2007 (Volume 72, Number 31)]
[Notices]
[Page 7391-7402]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15fe07-29]
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DEPARTMENT OF AGRICULTURE
Forest Service
RIN 0596-AC34
National Environmental Policy Act Documentation Needed for Oil and Natural
Gas Exploration and Development Activities (Categorical Exclusion)
AGENCY: Forest Service, USDA.
ACTION: Notice of issuance of final directive.
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SUMMARY: The Forest Service is revising procedures for implementing the
National Environmental Policy Act (NEPA) and Council on Environmental
Quality (CEQ) regulations. The procedures are being revised through
issuance of a final directive that amends Forest Service Handbook (FSH)
1909.15, chapter 30. This chapter describes categorical exclusions;
that is, categories of actions which do not individually or
cumulatively have a significant effect on the human environment, and
therefore, normally do not require further analysis
[[Page 7392]]
and documentation in either an environmental assessment (EA) or an
environmental impact statement (EIS). The amendment adds one such
category of actions to the Agency's NEPA procedures to facilitate
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 only applies to oil and gas leasing
activities on National Forest System lands when there are no
extraordinary circumstances. Use of this categorical exclusion will
allow for approval of a Surface Use Plan of Operations for oil and
natural gas exploratory operations and initial development activities
associated with or adjacent to a new oil and/or gas field or area 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 individual or co-located
pipelines and/or utilities disturbance; (d) four drill sites. More than
a single action may be categorically excluded under this category in a
new field or associated area when the aforementioned constraints are
not surpassed.
In response to comments on the proposed categorical exclusion, two
revisions were made to the original proposal: (1) The area in which the
category is applicable was clarified to allow for variations between
states on how a field is defined and determined; (2) utilities were
added to the pipeline provision to address a common practice of co-
locating pipelines and utilities in the same location or corridor.
EFFECTIVE DATE: This amendment is effective February 15, 2007.
ADDRESSES: The new Forest Service categorical exclusion is set out in
FSH 1909.15, chapter 30, which is available electronically via the World
Wide Web/Internet at http://fsweb.wo.fs.fed.us/directives/fsh/1909.15/.
Single paper copies are avilable by contacting Peter Gaulke,
Forest Service, USDA, Ecosystem Management Coordination Staff (Mail
Stop 1104), 1400 Independence Avenue, SW., Washington, DC 20250-1104.
Additional information and analysis can be found at
http://www.fs.fed.us/emc/nepa/oged/. 
FOR FURTHER INFORMATION CONTACT: Peter Gaulke, Ecosystem Management
Staff, (202) 205-1521, or Tony Ferguson, Minerals and Geology Staff,
(703) 605-4785, Forest Service, USDA.
SUPPLEMENTARY INFORMATION:
Background
The Council on Environmental Quality (CEQ) regulations at 40 CFR
1507.3 provide that agency's National Environmental Policy Act (NEPA)
procedures, after notice and comment, may identify 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 NEPA are
set out in Forest Service Handbook (FSH) 1909.15, Environmental Policy
and Procedures, chapter 30. This chapter lists the categories of
actions that do not require preparation of an EA or an EIS by the
Forest Service absent extraordinary circumstances. The Forest Service
calls these ``categorical exclusions.''
Oil and gas development is widespread throughout the National
Forest System (NFS). The Federal Onshore Oil and Gas Leasing Reform Act
of 1987, 30 U.S.C. 226 (FOOGLRA) grants both the Secretary of the
Interior (acting through the Bureau of Land Management) and the
Secretary of Agriculture (acting through the Forest Service) 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 decisionmaking
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 categorical exclusion set out in this notice applies
exclusively to the Forest Service's review and approval of an
applicant's SUPO.
In 2001, the President 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
called for streamlining the processing of APDs and other energy-related
permits in an environmentally sound manner. This categorical
exclusion furthers the President's goals set forth in E.O. 13212.
On August 8, 2005, the Energy Policy Act of 2005 was signed 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 conducted pursuant to
the Mineral Leasing Act (30 U.S.C. et seq., as amended). The
categorical exclusion in this notice is not intended to overlap or
duplicate the categories in Section 390 of the Energy Policy Act of
2005. Taken in concert, this categorical exclusion and the five
statutory categories discussed above further the goals set forth in
E.O. 13212.
For decades, the Forest Service has analyzed, approved, and
administered SUPOs 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 for oil and gas
leasing was reviewed by field personnel. This review indicated that the
Forest Service and BLM land 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 staff, time, and funding in order to complete the
planning and environmental documentation for minor exploration and/or
development projects.
The Agency reviewed 73 site-specific oil and natural gas projects
on National Forest System lands in development of the new categorical
exclusion and determined that the category of actions included does not
individually or cumulatively have a significant effect on the human
environment. The Agency
[[Page 7393]]
also considered peer-reviewed scientific literature identifying potential
effects of oil and gas development activities on wildlife and fishery
populations, soils, and groundwater. The combination of the field review
and literature review, available at http://www.fs.fed.us/emc/nepa/
oged/, gives the Agency confidence that the categorical
exclusion is appropriately defined. The Forest Service believes the
level of effects associated with future activities within the new category
would also be below the level of significant environmental effects.
Response to Comments
A 60-day comment period on the proposed category was initiated on
December 13, 2005 (70 FR 73722). A total of 108 responses in the form
of letters, e-mails, and faxes were received during the comment period.
These comments came from private citizens, elected officials, and
individuals and groups representing businesses, the oil and gas
industry, and conservation organizations.
Public comment on the proposed category addressed a wide range of
topics, many of which were directed generally at use of categorical
exclusions under the National Environmental Policy Act. Many people
supported the proposal or favored further expansion, while many others
opposed the proposal or recommended further restrictions on oil and
natural gas exploration and development on National Forest System lands.
Comment: Some respondents voiced general agreement with the
proposed category. Some indicated that they thought current analysis
and documentation requirements for oil and gas exploration and
development are too burdensome and that the proposal would provide for
more efficient management. Others believed that the proposal had
appropriate limitations on the use of the categorical exclusions, and
that the Forest Service had done sufficient analysis to conclude that
this category of oil and gas activities normally does not individually
or cumulatively have significant effects on the quality of the human
environment.
Response: These comments were in support of the proposal and need
no specific response. A summary of the remainder of public comments and
the agency's responses follows.
Comment: Some respondents expressed concern and opposition to oil
and gas exploration and development on National Forest System lands
stating that these activities are inappropriate uses and incompatible
with the mission of the Forest Service. Some respondents suggest that
allowing for oil and gas development creates areas of ``single use'' on
National Forest System lands.
Response: Oil and gas exploration and development is consistent
with the Forest Service mission. Lands administered by the agency are
managed by law for multiple- use (16 U.S.C. 528). The agency is
directed to manage the various renewable surface resources of the
National Forests to best meet the needs of the American people (16
U.S.C. 531). Under the Federal Onshore Oil and Gas Leasing Reform Act
of 1987, the Forest Service is charged with regulating surface-
disturbing activities conducted on agency lands pursuant to any lease
issued under that Act and determining reclamation and other actions as
required in interest of the conservation of surface resources (30
U.S.C. 226, 17(g)).
Comment: Several respondents suggested the Forest Service focus its
efforts on alternative energy development.
Response: Alternative and renewable energy supply and development
is included in the Energy Policy Act of 2005. The subject of this
category is the effective and efficient management of certain oil and
gas activities on NFS lands. The category appropriately responds to the
circumstances and needs associated with this task.
Comment: Some respondents believe that the proposed category is
contrary to the State Petitions for Inventoried Roadless Area
Management Rule, and that inventoried roadless areas should, therefore,
be excluded from the category. Other respondents believed that
inventoried roadless areas should be included in the proposed category.
Response: First, the category is not in conflict with the State
Petitions rule. The State Petitions for Inventoried Roadless Area
Management Rule (36 CFR part 294) is a procedural rule that allows
Governors to petition for State-specific rulemaking that may alter the
management direction for inventoried roadless areas contained in
existing land management plans. The Department has been clear that
during the petitioning process, the management of roadless lands is
governed by the applicable forest plan. The State Petitions Rule honors
valid existing rights, including existing permits, contracts or other
instruments authorizing occupancy and use of National Forest System lands.
The State Petitions Rule enables the Governors and Forest Service
to give oil and gas resources the same consideration that other
resources receive when considering alternatives for managing
inventoried roadless areas. The rule also requires the Forest Service
to inform the public of the consequences of foregone oil and gas
production possibilities.
Second, it should be noted that this category would only be invoked
in instances where the BLM has already approved a lease. The category
is not a screening process for which lands should be available for
leasing. Rather, it is a mechanism for assuring efficient consideration
of environmental effects in certain situations. Additionally, the
proposed category would only be available for use where leasing
activities are consistent with the applicable forest plan and
regulation, and any regulation promulgated pursuant to the State
Petitions Rule. Importantly, neither the 2001 Roadless Rule, nor the
2005 State Petition Rule, prohibited the exercise of valid existing rights.
Finally, it should be noted that under the Forest Service's
categorical exclusion process, the agency does evaluate potential
impacts to inventoried roadless areas through its examination of
extraordinary circumstances. While the mere presence of an inventoried
roadless area does not disqualify use of the categorical exclusion, the
responsible official will evaluate potential impacts. Use of the
category would not be available where it is determined that the effect
of the action on a resource condition such as an inventoried roadless
area creates an extraordinary circumstance.
Comment: One respondent suggested that Executive Order 13212 does
not support the proposed category.
Response: The Forest Service disagrees that the proposed category
is inconsistent with Executive Order (E.O.) 13212. On May 18, 2001,
E.O. 13212 directed Federal agencies to 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 Department conforms its policy to
Executive orders and believes that it is appropriate to take applicable
Executive orders, such as E.O. 13212, into account in promulgating
regulations and issuing directives.
Comment: Some respondents commented that the proposed category was
an attempt by the Forest Service to circumvent compliance with the
National Environmental Policy Act (NEPA).
Response: Categorical exclusions are an integral part of NEPA
compliance, and use of categorical exclusions in no way evades
compliance with NEPA. The Council on Environmental Quality (CEQ)
regulations for implementing the procedural provisions of NEPA direct
[[Page 7394]]
Federal agencies to identify those typical classes of actions which
normally do not require either an environmental impact statement or
environmental assessment (40 CFR 1507.3). CEQ defines such classes of
actions as categorical exclusions. ``Categorical exclusion'' means a
category of actions which do not individually or cumulatively have a
significant effect on the human environment and which have been found
to have no such effect in procedures adopted by a Federal agency in
implementation of these regulations (Sec. 1507.3), and for which,
therefore, neither an environmental assessment nor an environmental
impact statement is required.'' (40 CFR 1508.4).
In subsequent guidance regarding NEPA regulations, CEQ explained
that the use of categorical exclusions avoids unnecessary documentation
of minor environmental effects in environmental assessments and allows
agencies to focus their environmental review efforts on the major
actions that will have a significant effect on the environment (48 FR
34263 (1983), also see 40 CFR 1500.4(p)). CEQ also encourages agencies
to identify categorical exclusions using broadly defined criteria that
characterize types of actions that normally do not have significant
environmental effects, including cumulative effects (48 FR 34263 (1983)).
Comment: Several respondents suggested that the Forest Service
should set time limits for completing NEPA analysis, documentation, and
decisionmaking using the proposed categorical exclusion. It was also
suggested that the use of a categorical exclusion can frequently take
longer to approve than the more complex environmental assessments.
Response: As noted above, The CEQ has explained that the use of
categorical exclusions avoids unnecessary documentation of minor
environmental effects in environmental assessments (48 FR 34263 (1983)).
It is the experience of the Forest Service that the use of
categorical exclusions has resulted in more efficient and expedited
decisionmaking as compared to that of an environmental assessment.
Forest Service experience is that an environmental assessment typically
takes 4 to 6 months or longer to complete. A categorical exclusion
usually takes 1 month or less to complete, representing a time savings
of 3 to 5 months. This categorical exclusion is intended to improve
efficiency in planning activities that normally do not have significant
environmental effects.
Comment: Some respondents said the role and application of
extraordinary circumstance screens is insufficient and open to abuse.
Other respondents suggested that, without NEPA analysis, categorically
excluded actions would not consider current information or surveys, and
managers would be unaware of extraordinary circumstances that preclude
the use of a categorical exclusion.
Response: The NEPA procedures in Forest Service Handbook (FSH)
1909.15, chapter 30, list the categories of actions that the Agency has
found will not typically have individually or cumulatively significant
effects on the human environment. These procedures also provide for
extraordinary circumstances in which a normally excluded action may
have a significant environmental effect. This chapter includes a list
of ``[r]esource conditions that should be considered in determining
whether extraordinary circumstances related to the proposed action
warrant further analysis and documentation in an EA [environmental
assessment] or an EIS [environmental impact statement] * * *'' Section
30.3 also states, ``The mere presence of one or more of these resource
conditions does not preclude use of a categorical exclusion. It is (1)
the existence of a cause-effect relationship between a proposed action
and the potential effect on these resource conditions, and (2) if such
a relationship exists, the degree of the potential effect of a proposed
action on these resource conditions that determines whether
extraordinary circumstances exist.''
The Forest Service has consistently considered best available
science and current information when approving the use of a categorical
exclusion. Pursuant to existing direction, the Forest Service must
conduct a sufficient review to determine that no extraordinary
circumstances preclude the use of categorical exclusions (FSH 1909.15,
sec. 30.3). This determination may include appropriate surveys,
consideration of the best available science, consultation with Tribes,
and coordination with agencies that have regulatory responsibilities
under other statues, such as the Endangered Species Act, National
Historic Preservation Act, Clean Water Act, and Clean Air Act.
Responsible officials will consider, on a project-by-project basis,
whether or not extraordinary circumstances exist.
Comment: Several respondents asked that the Forest Service conduct
NEPA analysis for this proposal, including a cumulative effects
analysis on the impacts of the proposed category.
Response: The CEQ does not require agencies to prepare a NEPA
analysis or document before establishing Forest Service procedures that
supplement the CEQ regulations for implementing NEPA (see Regulatory
Certifications section, titled ``Environmental Impact'').
Comment: A considerable amount of comment revolved around public
notification and involvement when using the proposed categorical
exclusion and the effect on the public's role in decisionmaking. Some
respondents believed that the Forest Service's use of categorical
exclusions would allow the Forest Service to bypass important
procedural steps for project planning, such as public notification and
involvement. Other respondents stated that use of the proposed
categorical exclusion would restrict public involvement activities.
Still other respondents commented that scoping is not warranted for
actions that may be categorically excluded.
Response: As directed by CEQ regulations (40 CFR 1507.3), the
Forest Service has developed Agency policy for implementing NEPA and
CEQ's regulations. As noted in Forest Service Handbook (FSH) 1909.15,
chapter 10, section 11: ``Although the Council on Environmental Quality
(CEQ) Regulations require scoping only for EIS [environmental impact
statement] preparation, the Forest Service has broadened the concept to
apply to all proposed actions.'' FSH 1909.15, chapter 30, section
30.3(3) further states: ``Scoping is required on all proposed actions,
including those that would appear to be categorically excluded.''
As part of the scoping process for proposals potentially covered by
this categorical exclusion, the responsible official must determine the
extent of interest and invite the participation of affected Tribes,
Federal agencies, State agencies, local agencies, and other interested
parties, as appropriate. The Forest Service is committed to fulfilling
its public involvement responsibilities with all parties interested in
projects potentially qualifying for these categorical exclusions.
Although not intended to be a substitute for scoping, the Forest
Service also provides notice of upcoming proposals through the use of a
Schedule of Proposed Actions (see FSH 1909.15, ch. Zero Code, sec. 07).
The schedule gives early and informal notice of proposals to make the
public aware of Forest Service activities and provide an opportunity
for the public to indicate their interest in specific proposals.
Schedules may be distributed in hard copy by the respective forest and
can be found at http://www.fs.fed.us/sopa.
[[Page 7395]]
Pursuant to the Federal Onshore Oil and Gas Leasing Reform Act of
1987, the Bureau of Land Management and the surface management agency
are required to post for public review a notice of proposed activities
as found on the Application of Permit to Drill (APD).
Comment: Some respondents commented that oil and gas development
activities are beyond the scope of what activities should be allowed
for under a categorical exclusion.
Response: Based on site-specific project-level analysis of
environmental effects and the belief that the profile of projects
reviewed representing the Agency's past practices is indicative of its
future activities, the Forest Service concludes that the category of
action proposed does not individually or cumulatively have a
significant effect on the human environment. While confident of the
conclusion, the Agency, nevertheless, has established limitations on
the type and extent of activities to be approved under this categorical
exclusion.
Comment: Some respondents stated that the proposed category is
inappropriate as it goes beyond congressional intent as expressed in
the Energy Policy Act of 2005, Section 390. Other respondents felt that
the proposed category is inconsistent with Section 390 and the intent
and activities of the two should be incorporated. Others suggested that
the effects of the Energy Policy Act of 2005 should be realized before
the Forest Service undertakes an effort of this type.
Response: 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 conducted pursuant to
the Mineral Leasing Act (30 U.S.C. et seq., as amended). Independent of
the categorical exclusion in this directive, the Forest Service has
provided direction to the field on the use of Section 390. Nothing in
the Energy Policy Act of 2005, Section 390 precludes agencies from adding
additional categorical exclusions to their respective NEPA procedures.
The categorical exclusion in this directive does not, and is not
intended to, overlap or duplicate the activities contained in Section
390 of the Energy Policy Act of 2005. It is separate and independent of
the provisions of Section 390. It is based on historical use of
environmental assessments and field data that support the conclusion
that the category generally would not result in significant impacts. It
is complementary to Section 390 and meets the intent of Executive Order
(E.O.) 13212 that provides: ``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.''
Taken in concert, the categorical exclusion in the final directive and
the five statutory categories in Section 390 further the goals set
forth in E.O. 13212.
Comment: One respondent encouraged the Forest Service to mitigate
skewed comments resulting from organized letter writing campaigns
focusing less on the number of comments and more on the quality and
substance of the comments.
Response: Every comment received is considered for its substance
and contribution to informed decisionmaking, whether it is one comment
repeated by many people or a comment submitted by only one respondent.
The public comment process is not intended to serve as a survey process
to determine public opinion. The emphasis in reviewing public comment
is on the content of the comment rather than on the number of times a
comment was received. The comment analysis process is intended to
identify unique substantive comments relative to the proposal to
facilitate their consideration in the decisionmaking process. All
comments are considered, including comments that support and that
oppose the proposal. That people do not agree on how public lands
should be managed is a historical, as well as modern dilemma faced by
resource managers. However, public comment processes, while imperfect,
do provide a vital avenue for engaging a wide array of the public in
resource management processes and outcomes.
Comment: Some respondents commented that the Forest Service should
track the use and progress of oil and gas exploration and development
projects under the proposed categorical exclusion and make this
information and associated NEPA documentation available for public review.
Response: The Forest Service tracks NEPA-related planning
information of projects, including those for oil- and gas-related
activities, whose decisions are expected to be documented in a Record
of Decision, Decision Notice, some Decision Memos, or Forest Plan
Approval Document. This tracking allows for an assessment use of
certain categorical exclusions and progress of individual projects.
Public viewing of this information is contained in the Schedule of
Proposed Actions which is distributed in hard copy and posted at http://
www.fs.fed.us/sopa four times a year: January, April, July,
and October. The schedule contains a list of proposed actions that will
soon begin or are currently undergoing environmental analysis and
documentation. It provides information so that the public can become
aware of and indicate interest in specific proposals. Oil and gas
projects analyzed and documented per this categorical exclusion will be
included on the Schedule of Proposed Actions.
Comment: A few respondents expressed opinions on subjecting
proposed actions under this categorical exclusion to the public notice,
comment, and appeal process requirement in the rules at 36 CFR part
215. Some respondents considered the public notice, comment, and appeal
process as absolutely essential for responsive decisionmaking.
Response: In Earth Island Institute v. Ruthenbeck, the Federal
District Court for the Eastern District of California ordered that
categorically excluded timber sales and 10 specific categorically
excluded activities are subject to notice, comment, and appeal under
the 36 CFR part 215 rules. Therefore, if use of this categorical
exclusion includes activities specified by the court, then notice,
comment, and appeal are currently required. Conversely, if activities
specified by the court are not included, then notice, comment, and
appeal pursuant to 36 CFR part 215 does not apply.
Comment: Some respondents opposed to the proposed categorical
exclusion feel that any increase in the use of categorical exclusions
represents a reduction in environmental review and the use of science
in decisionmaking. As a result, they feel that the proposed categorical
exclusion could result in adverse impacts to National Forest System
lands and resources including roadless areas, wilderness areas,
national recreation areas, threatened and endangered species, American
Indian sacred sites, and archeological sites.
Response: Categorical exclusions are to be used for routine actions
that have been found by the Forest Service through experience and
environmental review to have no significant environmental effects
either individually or cumulatively (40 CFR 1508.4). On August 23,
2002, the Forest Service published a final interim directive to Forest
Service Handbook (FSH) 1909.15, chapter 30, which provided direction
regarding how actions, which may be categorically excluded, should be
considered to determine if they warrant further analysis and
documentation in an
[[Page 7396]]
environmental assessment or environmental impact statement (67 FR 54622).
Forest Service NEPA procedures require that all proposed actions to
be categorically excluded from documentation in an environmental
assessment or environmental impact statement must be reviewed for
extraordinary circumstances, which may include appropriate surveys and
analyses, taking into account best available science, appropriate
consultation with Tribes and regulatory agencies, such as those
required by the Endangered Species Act, the National Historic
Preservation Act, Clean Water Act, and Clear Air Act. Accordingly, this
categorical exclusion does not apply where there are extraordinary
circumstances, such as potentially significant effects on the
following: Federally listed threatened or endangered species or
designated critical habitat, species proposed for Federal listing or
proposed critical habitat, or Forest Service sensitive species;
floodplains, wetlands or municipal watersheds; congressionally
designated areas such as wilderness, wilderness study areas, or
national recreation areas; inventoried roadless areas; research natural
areas; American Indian and Alaska Native religious or cultural sites;
archaeological sites, or historic properties or areas (FSH 1909.15, ch.
30, sec. 30.3, para. 2).
Comment: A number of respondents raised issues related to the
possible significant cumulative impacts of projects under this proposed
categorical exclusion or the impacts of implementing such projects in
combination with other activities under other authorities or on other
Federal lands. Most of the statements were general, but some mentioned
specific impacts, such as those on wildlife or water quality.
Response: For each of the 73 oil and gas projects considered in
defining this category, the question of whether there were significant
cumulative effects was specifically addressed. Reviewers examined the
possibility of significant cumulative effects from these activities and
all other activities within the appropriate boundaries for potential
resource effects. For example, based on an assessment of wildlife
conditions in the local habitat area, or water quality impacts relative
to a watershed, significant cumulative effects were not observed.
Some public concerns with regard to environmental effects, both
individual and cumulative, include those regarding wildlife populations
and water quality. As examples, soil and water resources are protected
during oil and gas projects through implementation of State and
Environmental Protection Agency approved Best Management Practices and
lease level stipulations. For Surface Use Plan of Operations, the
Forest Service has the capacity to protect surface resources through
the development of conditions of approval.
The Forest Service is required to consult with the U.S. Fish and
Wildlife Service (FWS) or National Oceanic and Atmospheric
Administration (NOAA) Fisheries whenever any proposed actions or
activities may affect an endangered or threatened species or adversely
modify designated critical habitat. The Forest Service regularly
coordinates and consults with the appropriate State wildlife agency,
FWS, and NOAA Fisheries on species protection and conservation efforts
to address potential individual and cumulative impacts of Forest
Service practices on threatened and endangered wildlife and fish
species and their habitat.
It is important to note that if a proposed project may have a
significant effect on a species listed or proposed to be listed on the
List of Endangered and Threatened Species or on designated critical
habitat for these species, the Agency under existing Forest Service
NEPA procedures may not use a categorical exclusion.
Concerns were raised regarding a cumulative effect of this
categorical exclusion combined with the Energy Policy Act Section 390
categories. This categorical exclusion is designed, in part, to be used
in new fields or areas at the preliminary stages of development, which
are designed to obtain data needed for planning potential subsequent
development and performing meaningful analysis of such development. The
use of Section 390 is for wells in existing fields where a site-
specific NEPA document for oil or gas exploration/development, or
analysis of drilling as a reasonably foreseeable activity has been
completed. These documents, in addition to the previously completed
leasing analysis, address the cumulative effects of field development.
Comment: Some respondents commented that the impacts considered
when reviewing the 73 projects used to support the proposed categorical
exclusion did not include effects to subsurface resources or the
``subsurface footprint.'' Respondents centered their comments on
subsurface impacts, including the appearance of extraction-related
sinkholes, which are argued likely to become more evident after the 5-
year period following initiation of extraction activities.
Response: Regardless of whether a well is analyzed and documented
in a categorical exclusion, environmental assessment, or environmental
impact statement, the BLM holds the primary responsibility for the
drilling plan portion of the APD and protecting the mineral estate of
the United States. As part of the drilling plan, the BLM requires
casing and cementing procedures to protect the ground water from
contamination from deeper aquifers and prevent the loss of oil or gas
from the well bore. The casing and cementing programs are also designed
to prevent the movement of fluid around the well bore that may result
in the rare occurrence of sink holes.
Comment: Some respondents stated that the Forest Service should
perform a thorough economic evaluation that takes into account the loss
of economic benefits that will result from the proposed categorical
exclusion. Respondents say that such an evaluation should include
consideration of existing uses and functions of National Forest System
lands including recreation, flood control, pest control, carbon
sequestering, and many other ecosystem services. Much greater attention
to the costs and benefits of the proposed categorical exclusion is
necessary.
Response: The primary economic effects of the proposed categorical
exclusion for oil and gas exploration and development are changes in
costs of conducting environmental analysis and documentation. Under
current NEPA procedures, the level of analysis and documentation
required for oil and gas exploration and development often required
agency personnel to extend processing timeframes and expend undue
resources and funding to complete minor exploration and development
projects in an environmental assessment. The purpose of the categorical
exclusion for oil and gas exploration and development on National
Forest System land under existing Federal leases is to streamline the
process of applications for permits to drill. In compliance with
Executive Order 12866, the Forest Service has prepared a cost-benefit
analysis and has determined that this categorical exclusion will not
have an annual effect of $100 million or more on the economy or
adversely affect productivity, competition, jobs, the environment,
public health or safety, or Tribal, State, or local governments. The
economic effect from this categorical exclusion is expected to result
in a reduction in the administrative burden of preparing
[[Page 7397]]
unnecessary environmental assessments and findings of no significant impact.
The economic analysis does not evaluate the loss of economic
benefits as a result of this change because the Forest Service does not
foresee that this new categorical exclusion will have a measurable
effect on the number of oil and gas projects approved by the agency.
Other factors, such as market forces resulting from fluctuations in
price due to weather, natural disasters, and demand, and available
industry infrastructure would likely have a more significant effect on
the pace of oil and gas exploration and development activities.
Additionally, the Forest Service's review and approval of an
applicant's surface use plan of operations is one step of an eight step
incremental decisionmaking process. Therefore, the agency has assumed
that the rule will not change the scope or types of projects being
approved, but only result in cost savings due to a more streamlined
process for approval.
Comment: Numerous respondents questioned the sample size and the
procedures used in selecting the 73 projects evaluated in determining
that this is a category of actions which does not individually or
cumulatively have a significant effect on the human environment. Some
respondents stated that the methodology for establishing the category
was not publicly available and, therefore, not available for review.
Other respondents expressed concern that the time period in which the
data was collected was too short for the actual environmental effects
to be realized and, therefore, unfairly biased the sample data.
Response: The Deputy Chief for the National Forest System
instructed field units to perform on-site monitoring and submit
corresponding data on 100 percent of oil and gas exploration and
development projects that had been assessed in an environmental
assessment and approved and constructed, or partially constructed,
between October 1, 1999, and September 30, 2004. The projects were
selected from this time frame because there have been substantial
improvements in technology and environmental protection requirements
for oil and gas exploration and development on NFS lands in the last 5
years. Therefore, the projects that were assessed during this period
are more representative of how future projects will be designed.
The objective of the on-site monitoring was to determine if surface
operations for oil and gas activities approved in site-specific
environmental assessments did or did not have individual or
cumulatively significant effects on the human environment and,
therefore, could or could not qualify for a categorical exclusion in
accordance with the Council on Environmental Quality regulations for
implementing NEPA. The Forest Service's review of the 73 projects was
not intended to determine whether the projects had effects on the
environment, but to determine whether these types of activities had
significant effects.
Upon publication of the December 13, 2005, Federal Register Notice
of the proposed category, the ``Methodology for Project Data Collection
And Results of Review'' paper was posted for public review, along with
other supporting documents, on the Forest Service Web site. The paper
and other documents remain posted at
http://www.fs.fed.us/emc/nepa/oged/.
The Forest Service relied on the professional judgment of the
responsible officials, using the implementing regulations for NEPA (40
CFR 1500-1508) concerning the significance of environmental effects.
The Agency believes that resource specialists and agency-responsible
officials involved in the design and analysis of each specific on-the-
ground project were best qualified to identify resulting environmental
effects and determine whether extraordinary circumstances were present.
Comment: Several respondents questioned why the proposed
categorical exclusion was limited to new fields and commented that no
rationale was given for why existing fields were excluded from the
categorical exclusion's use. Some respondents commented that limiting
the new categorical exclusion to new fields will unnecessarily prevent
expeditious processing of applications for permits to drill associated
with infill development and other activities that may have no
significant impact on the environment.
Response: Parameters of the proposed categorical exclusion (miles
of road construction, road reconstruction, pipeline and utility
installation, and number of drill sites) were selected because they
were found in the site-specific project-level review to individually
have no significant impacts on the human environment. With the
exception of 25 projects monitored on the Jicarilla Ranger District
located in the San Juan Basin, an area that is already largely
developed, projects monitored were determined to not have individually
or cumulatively significant effects. Therefore, the scope of the
categorical exclusion was limited to a single new field to address the
inconclusive cumulative effects results from the Jicarilla Ranger
District where numerous production wells are located in single fields.
It is expected that categorical exclusions identified in Section
390 of the Energy Policy Action of 2005 would assist in more
efficiently processing applications for permits to drill in existing
fields. This category complements Section 390 categorical exclusions
within new fields.
Comment: Various respondents questioned the methodology used to
gather and interpret activity information used in the agency's
conclusion that the proposed categorical exclusion does not
individually or cumulatively have a significant environmental effect on
the quality of the human environment. Some do not believe the evidence
is sufficient for this conclusion because it does not adequately typify
all potential National Forest System lands that are or may be put under
lease and subject to potential development. Others suggest various
biases toward certain regions of the country are reflected in the oil
and gas projects selected for review.
Response: The regional locations of the 73 projects were determined
by oil and gas development activities during the 60-month time period.
Geographic characteristics of the projects reviewed ranged from
relatively flat shrub and grass-covered prairie to rugged, timber-
covered mountainous terrain. Projects included in the sample were
located across the country from the Colorado Rockies to the eastern
broadleaf forests, covering nine different ecological subregions of the
United States. Subregions in the west included: Great Plains Palouse
Dry Steppe, Southern Rocky Mountain Steppe, Colorado Plateau Semi
Desert, and the Great Plains Steppe. Subregions in the southeast
included: The Ozark Broadleaf Forest, Outer Coast Plain Mixed Forest,
and Southeastern Mixed Forest. Subregions of the east included: Central
Appalachian Broadleaf Forest and Eastern Broadleaf Forest. The sample
of projects does not include every region with potential oil and gas
development activities. Yet, the Agency concluded that this sample size
was representative of future oil and gas development activity
locations, and the common activities associated with oil and gas
exploration and development were adequate to review for significant
environmental impacts.
In Alaska, for example, of the 21,969,321 total acres of National
Forest System lands, only two areas are known to be geologically
permissible for oil and gas production that is, possessing a reasonable
probability of having oil and
[[Page 7398]]
gas resources. These are the Yakutat Forelands on the Tongass National
Forest and the Katalla area on the Chugach National Forest. No oil and
gas exploration interest or activities have taken place within the past
40 years on these areas, and no leases currently exist. Though no
interest or activities exist today, this categorical exclusion would
apply to National Forest System lands in Alaska. Oil and gas
exploration and development activities are generally the same whether
in the lower 48 states or Alaska, and the application of the category's
extraordinary circumstances provides for screens against significant
environmental impacts.
Comment: Some respondents questioned whether the Forest Service
worked collaboratively with other Federal agencies, namely the Bureau
of Land Management and the Environmental Protection Agency, in
developing the proposed category. Others requested that the Federal
agencies work collaboratively on minerals management on Federal lands.
Response: In the development and review of the proposed category,
the Forest Service coordinated with the Bureau of Land Management, the
Environmental Protection Agency, the Council on Environmental Quality,
and other Federal Agencies. In general, the Forest Service coordinates
with these agencies on all oil and gas activities on NFS lands, as well
as State, Tribal and local governments.
In addition, the Forest Service and Bureau of Land Management have
coordinated their implementation efforts of the categorical exclusions
in Section 390 of the Energy Policy Act of 2005.
Comment: Several respondents commented that the evidence provided
by the 73 projects reviewed is not sufficient to make conclusions on
coalbed methane development or in unconventional fields requiring
specialized development techniques. These respondents commented that
methodology used to support the Forest Service's conclusion that the
proposed category for oil and gas exploration and development actions
does not individually or cumulatively have a significant environmental
effect on the human environment was inadequate and, therefore, these types
of activities should be excluded from the proposed categorical exclusion.
Response: The 73 projects considered in defining this categorical
exclusion included ``conventional'' oil and gas operations and
``unconventional'' operations, including coalbed methane projects.
Approximately half of the projects monitored were oil projects with the
other half being gas projects. Of the gas projects, about 25 percent
were coalbed methane. Because coalbed methane projects often contain
multiple wells, approximately 60 percent of all wells studied were coal
bed methane. The projects monitored for development of this categorical
exclusion did show that oil and gas exploration and preliminary field
delineation activities, irrespective of the type of oil or gas reservoir
(limestone, sandstone, or coal), have similar environmental effects.
The type of equipment and nature and duration of oil and gas
operations that could potentially affect other resources are similar
for oil and gas exploration and initial field delineation activities
for many types of deposits, including exploration for and development
of coalbed methane.
Comment: Some respondents commented that they would prefer to see
the limitations for road construction or reconstruction, miles of
pipeline installation, and number of drill sites of this category
decreased, while others would like to see these constraints increased.
Some respondents wanted geophysical activities included in this category.
Response: To determine the potential impacts of oil and gas
activities, data was gathered from 73 oil and gas projects that have
been implemented within the past 5 years. None of the projects
evaluated had significant impacts on the human environment. Rather than
setting any parameters at the limits of the range evaluated, the Forest
Service believes it is prudent and conservative not to exceed the mean
of each parameter within the proposed categorical exclusion.
Statistical analysis was utilized to determine the mean (average),
median, and mode of all compiled data on all 73 projects on which data
was collected. While all three are statistically valid measures, the
mean values of the 73 projects on which the Forest Service collected
data were used in development of this categorical exclusion. The mean
resulted in thresholds which created reasonable operability for oil and
gas operators with limited environmental impacts on National Forest
System lands. Use of the median or mode provided threshold values which
were too low (below a value of 1.0) to provide a meaningful scope for
future projects.
Limited mineral, energy, or geophysical investigations are
currently categorically excluded from documentation in an environmental
impact statement or environmental assessment by Forest Service NEPA
procedures in FSH 1909.19, 31.2(8) and, therefore, are not included in
this category.
Comment: Some respondents commented that the definition of
``pipeline'' in the proposed category needed clarification. In
particular, some respondents believe that utilities, such as electric
lines should be included in the proposal, and others stated that pipelines
buried within an existing road or pipeline corridor should be exempt.
Response: Of the 73 oil and gas projects monitored for development
of the proposed categorical exclusion, 16 of 73 project highlighted
utilities in their decision, and 50 of 73 projects included pipelines
and/or utilities being placed adjacent to or within the previously
disturbed and unreclaimed road prism. Thirty-two of the 73 projects
specified that the utilities be buried. The category's language has
been expanded to include utilities as well as pipelines.
It is common practice to co-locate pipelines, utilities, and roads
within the same corridor of disturbance. The BLM's Best Management
Practices For Oil & Gas Development on the Public Lands include co-
locating pipelines and utilities together to minimize surface
disturbance, including roads and utilities sharing common rights-of-
way. These Best Management Practices also state that to reduce visual
contrast in visually sensitive areas, flow lines and pipelines should
be buried, preferably in or adjacent to the roadway, particularly if
the lines are long-term. Where road, pipelines, and utilities share
common areas of disturbance, the disturbance will not be considered
cumulatively against the constraints of the categorical exclusion.
Comment: Many respondents felt that the definition of ``drill
site'' was not adequately defined in the proposed category and needed
clarification. Other respondents felt that as currently defined,
``drill site'' allowed too much flexibility in the categorical
exclusion's implementation that would ultimately lead to abuse and
inconsistent application. Some of the respondents felt that the drill
sites should limited by acres.
Response: A drill site, commonly referred to as a ``pad'', is a
location that is needed to accommodate the equipment used to drill a
well or wells. A drill site may contain more than one well. Not all
wells may ultimately be producers, at which case the drill site is
reclaimed. Productive well sites can often be reduced in size following
the drilling phase.
The 73 oil and gas projects monitored included a spectrum of drill
site sizes from small coalbed methane
[[Page 7399]]
development sites, (0.5 acres per site on the Thunder Basin National
Grassland) up to 3.5 acres for deep, 10,000 feet well on the Dakota
Prairie National Grasslands. Since the sample included all
environmental assessments for a 5-year period and individually no
project identified significant environmental effects, actual pad size
did not correlate to the significance of effects. Therefore, no change
to the text of the category is required.
Comment: Numerous respondents raised concerns that the Forest
Service could misuse the proposed categorical exclusion through the
definition of a ``field'', thereby segmenting larger projects into
sizes that qualify under the categorical exclusions. Some respondents
commented that such segmentation would violate Council on Environmental
Quality NEPA regulations. Other respondents stated they felt there is
not a clear process to establish the boundaries of a field. Some
respondents noted that a ``field'' is not established until production
is proven, therefore, exploration drill sites could not fall under this
categorical exclusion.
Response: The Society of Petroleum Engineers defines a field as:
``An area consisting of a single reservoir or multiple reservoirs all
grouped on, or related to, the same individual geological structural
feature or stratigraphic condition.'' The field name refers to the
surface area, although it may refer to both the surface and the
underground productive formations.
The comment about the establishment of fields only after the
discovery of oil or gas is correct. If an exploration well is drilled
in an area not previously classified as a field, and the well is
determined to be productive; then the applicable State oil and gas
regulatory agency follows procedures established for that State to
define the field. Some States may require more than one productive well
before they establish a field. If additional wells indicate that the
boundary defining the aerial extent of the field should be changed,
State agencies follow established procedures to change the field
boundaries. These procedures often include open, public hearings.
Information about the delineation of fields and the procedural process
for establishing and changing field boundaries vary and can be found on
the web pages of many States' oil and gas agencies.
The language in the proposed category has been adjusted for
activities adjacent to a new oil and/or gas field to more correctly
reflect that certain exploratory proposals could be approved per this
categorical exclusion if they met the listed constraints. ``Adjacent
to'' is defined as within an adjacent spacing unit to a new field or to
a first productive well in a new area. Temporary spacing units are
determined by the State's oil and gas regulatory agency through an
established process based on the formation or pool most likely to be
productive. This categorical exclusion is designed for preliminary
operations that are necessary to gather both the surface and subsurface
resource information necessary to assess the potential for field
development.
Regarding segmentation, the responsible official is required to
properly identify the characteristics of the proposed action (FSH
1909.15, ch. 10, sec. 11.2). The Forest Service follows the Council on
Environmental Quality (CEQ) regulations for all their proposals that
may undergo environmental review, including the documentation for
categorical exclusions; ``proposals or parts of proposals which are
related to each other closely enough to be, in effect, a single course
of action shall be evaluated in a single impact statement'' (40 CFR
1502.4(a)). The Forest Service also follows the CEQ definition for
determining the scope of a proposed action as defined at 40 CFR
1508.25, which discusses connected and related actions. Consequently,
segmenting a larger project into smaller projects in order to meet the
stated constraints and be considered under this categorical exclusion
is contrary to Forest Service guidance. Forest Service oversight of the
application of these categories through internal reviews such as
Chief's, regional, and forest reviews emphasizes these compliance
requirements and should prevent abuse.
Comment: Some respondents assert that the proposed category wrongly
assumes that all existing forest plans have comprehensive and recently
updated pre-leasing information and, because the perceived intense
future oil and gas development on National Forest System lands was not
anticipated when most existing plans were written, local forests have
not appropriately analyzed the environmental impacts. Other respondents
characterized the proposed category as a shell-game where little or no
review takes place during general planning and leasing, and then when
the time comes for such input and review at the drilling stage, a
categorical exclusion might apply which offers little NEPA analysis.
Response: The Forest Service has mechanisms for updating oil and
gas lease information. At the time a parcel is processed for leasing,
the parcel goes through a review to assure the stipulations are
correctly applied. As new information is identified, the Forest Service
reviews and determines if the information is of importance and
necessitates additional or adjusted stipulations.
Conditions of Approval, applied to Surface Use Plan Operations, may
be adjusted or changed when warranted after a review of new
information. The Forest Service considers all relevant information when
evaluating Surface Use Plans of Operations.
Regardless of the type of NEPA document used or the age or
complexity of prior analysis, the Forest Service develops mitigations
for each drill site per the terms of the lease. Minimum surface use
requirements are established in 36 CFR 228.108 and On-Shore Order
#1. Directions for bonding requirements are in 36 CFR 228.109.
Comment: Some respondent comments noted confusion over the staged
decisionmaking process involved with oil and gas development on Federal
lands. Some respondents stated that the proposal would frustrate the
staged decisionmaking approach established by Congress for onshore oil
and gas development. Other respondents commented that the proposed
categorical exclusion is inconsistent with Forest Service oil and gas
regulations in that the use of the proposed category would be the first
NEPA analysis conducted for the field.
Response: 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 makes initial determinations on
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 land management plans, as well as in separate forest-wide or
area-specific leasing decisions. 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 may be a cooperating agency in these
efforts. Final determinations regarding lease offerings and
stipulations are ultimately made by the BLM.
The Energy Policy and Conservation Act (EPCA) directed the BLM, in
cooperation with the Forest Service, to
[[Page 7400]]
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 National Forest System lands studied 47 percent 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 percent are available to exploration and
development under standard lease terms and restrictions, and 34 percent
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 significant adverse environmental effects 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.
At the stage that this categorical exclusion would be used, Forest
Service and BLM leasing decisions have been made, and stipulations have
been determined and applied to the lease. The lease has been issued
with certain constraints, and development is subject to the terms of
the lease. When a review of a SUPO has been completed, the Forest
Service responsible official may approve the plan as submitted, approve
the plan with specified conditions, or disapprove the plan with stated
reason (36 CFR 228.107(b)(2)).
Comment: Some respondents suggested that the Forest Service monitor
categorically excluded oil and gas exploration activities to ensure
that they do not have significant environmental impacts. Other
respondents expressed opinions over what is perceived as a poor track
record on the Forest Service's part in monitoring and; thus, it could
not be trusted to maintain their monitoring and enforcement obligations.
Response: Forest and land management plans already provide for
monitoring of management activities regarding applicable laws,
regulations, and standards and guidelines; effectiveness of project
implementation, including any specified mitigation measures; validation
of models and assumptions used in the planning processes; and
environmental impacts. Projects implemented under these categories will
be included in these ongoing monitoring efforts.
In addition to forest plan determined monitoring, Forest Service
personnel regularly inspect oil and gas wells and facilities and
compliance with the respective permit terms and conditions in the
Surface Use Plan of Operations (SUPO) thus, minimizing or prohibiting
effects on other resources. Actions required in the SUPO to help
mitigate various resource concerns are monitored to ensure they are
appropriately implemented. Upon identifying operations not in
compliance with permit terms and conditions and/or contributing to
undesirable effects, Forest Service personnel take steps to ensure that
noncompliant activities are corrected. Such steps include, but are not
limited to, requiring the operator to take corrective actions and
requesting assistance from the Bureau of Land Management to enforce
lease terms and conditions.
For oil and gas exploration and development on National Forest
System lands environmental protection is provided for in an element of
overlap or redundancy during the implementation of Best Management
Practices (BMPs) and mitigation measures. Individual NEPA analysis on
the SUPO, a component of the APDs, includes site-specific BMP and
mitigations measures, and implementation monitoring then occurs and
informs future development of BMPs, or mitigation measures.
Further, respective State inspectors routinely enter Federal lands
and inspect wells and facilities for compliance with State laws,
regulations, and requirements.
Conclusion
The Forest Service, U.S. Department of Agriculture (Forest Service)
finds that the category of action defined in the categorical exclusion
presented at the end of this notice does not individually or
cumulatively have a significant effect on the human environment. The
Agency's finding is first predicated on the reasoned expert judgment of
the responsible officials who made the original findings and
determinations in the oil and gas projects reviewed; the resource
specialists who validated the predicted effects of the reviewed
activities through monitoring or personal observation of the actual
effects; and, finally, the Agency's judgment that the profile of past
oil and natural gas exploration and development activities represents
the Agency's past practices and is indicative of the Agency's future
activities.
This categorical exclusion will permit timely response to an
applicant's SUPO for limited oil and gas exploration and development
activities involving small areas of National Forest System land.
Additionally, it will conserve limited agency funds.
The text of the final categorical exclusion is set out at the end
of this notice.
Regulatory Certifications
Environmental Impact
The revision to Forest Service Handbook 1909.15 would add direction
to guide field employees in the 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 environmental impact
statement; those that require preparation of an environmental
assessment; 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 directive has been reviewed under USDA procedures and
Executive Order 12866, as amended by 13422, on Regulatory Planning and
Review. The Office of Management and Budget (OMB) has determined that
this is a significant regulatory action as defined by the Executive
order. Accordingly, OMB has reviewed this directive.
The primary economic effects of the categorical exclusion for
review of SUPO associated with oil and gas lease operations are changes
in costs of conducting environmental analysis and
[[Page 7401]]
preparing NEPA documents. The new categorical exclusion would reduce
agency costs by reducing the documentation requirements for certain oil
and gas exploration and development on National Forest System land
under existing Federal leases.
Effects on local economies and small business entities are expected
to be nearly the same using either an environmental assessment or
categorical exclusion for oil and gas exploration and development
activities. There is potential for an increase in certain oil and gas
exploration and development projects, as well as an increase in site
administration since they would be faster and cheaper to prepare.
Agency costs for categorical exclusions were discounted at 3
percent and 7 percent discount rates for 10-year period from 2006 to
2015. By using 3 percent discount rate, total discounted cost for
categorical exclusions were estimated at $7.1 million with an
annualized cost of $0.81 million, while the total discounted cost for
environmental assessments would be $42.7 million with an annualized
cost of $4.9 million. An annualized cost saving of $4.05 million for
categorical exclusions is estimated by using a 3 percent discount rate.
While using a 7 percent discount rate for the same timeframe, the
results show that total discounted cost for categorical exclusions were
estimated at $6 million with an annualized cost of $0.8 million, the
total discounted cost for environmental assessments would be $36
million with an annualized cost of $4.8 million. An annualized cost
saving of $4 million is estimated for categorical exclusions by using a
7 percent discount rate. This quantitative assessment indicates a cost
savings for the Agency using categorical exclusions for reviewing SUPO
for oil and gas exploration and development projects.
The Cost-Benefit Analysis prepared for this categorical exclusion
can be found on the World Wide Web at
http://www.fs.fed.us/emc/nepa/oged/.
Federalism
The Agency has considered this directive under the requirements of
Executive Order 13132 issued August 4, 1999, ``Federalism.'' The Agency
has made an assessment that the 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 directive does not have Federalism implications.
Consultation and Coordination With Indian Tribal Governments
This directive has been reviewed under Executive Order 13175 of
November 6, 2000, ``Consultation and Coordination With Indian Tribal
Governments.'' This 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 directive impose substantial direct compliance costs on
Indian Tribal governments or preempt Tribal law. Therefore, it has been
determined that this directive does not have Tribal implications
requiring advance consultation with Indian Tribes.
No Takings Implications
This directive has been analyzed in accordance with the principles
and criteria contained in Executive Order 12630 on Governmental Actions
and Interference with Constitutionally Protected Property Rights, and
it has been determined that the directive does not pose the risk of a
taking of constitutionally protected private property.
Civil Justice Reform
In accordance with Executive Order 12988, it has been determined
that the categorical exclusion in this final directive does not unduly
burden the judicial system, and that they meet the requirements of
sections 3(a) and 3(b)(2) of the order.
Unfunded Mandates
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), which the President signed into law on March 22,
1995, the Agency has assessed the effects of the categorical exclusion
in this final directive on State, local, and Tribal governments and the
private sector. This categorical exclusion does not compel the
expenditure of $100 million or more by any State, local, or Tribal
government or anyone in the private sector. Therefore, a statement
under section 202 of the Act is not required.
Energy Effects
This directive has been reviewed under Executive Order 13211 on
Actions Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use. It has been determined that this directive does not
constitute a significant energy action as defined in the executive order.
Controlling Paperwork Burdens on the Public
This 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 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: February 9, 2007.
Abigail R. Kimbell,
Chief, Forest Service.
Text of 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 directive is included in this notice. Please note, however,
that category 16 is reserved. A notice for comment was published for
category 16 on January 5, 2005, (70 FR 1062). A final directive for
this categorical exclusion 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://www.fs.fed.us/im/directives/
fsh/1909.15/1909.15_30.doc. 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 paragraph 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
[[Page 7402]]
prepare a decision memo for routine, proposed actions within any of the
following categories:
* * * * *
17. Approval of a Surface Use Plan of Operations for oil and
natural gas exploration and initial development activities, associated
with or adjacent to a new oil and/or gas field or area, 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 individual or co-located pipelines and/or
utilities disturbance.
d. Four drill sites.
[FR Doc. E7-2617 Filed 2-14-07; 8:45 am]
BILLING CODE 3410-11-P