Friday, November 16, 2018

Shale Law in the Spotlight - U.S. Forest Service Proposes New Rulemaking for Oil and Gas Development on National Forest Lands

Written by Chloe Marie - Research Specialist

On September 13, 2018, the U.S. Forest Service (USFS) proposed an update for existing regulations and procedures codified at 36 CFR 228, Subpart E, relating to oil and gas resources on national forest lands. The current rules are described as “outdated and inefficient.” Existing regulations were first promulgated in 1990 and slightly amended in 2007. USFS declared in a News Release that the proposed reforms would “ensure the Forest Service and stakeholders have an efficient process to support local economies and protect and conserve valuable environmental resources.” Consequently, USFS published in the Federal Register an Advance Notice of Proposed Rulemaking seeking public comment.

Existing regulations and procedures set forth in 36 CFR 228, Subpart E govern the statutory responsibilities of USFS for the issuance of federal oil and gas leases as well as the management of subsequent oil and gas operations on national forest lands.

The proposed rulemaking is driven by the need to streamline processes and reduce administrative burdens and costs for energy-related projects, as required by the Trump administration. As stated in the Advance Notice, “the intent of these potential changes would be to decrease permitting times by removing regulatory burdens that unnecessarily encumber energy production.” Specifically, USFS states that the proposed revisions include “eliminating language that is redundant with the NEPA process, removing confusing options, and ensuring better alignment with the BLM regulations.”
As a primary matter, USFS will focus on reforming its internal process for identifying National Forest System lands; reviewing the regulatory provisions relating to lease stipulation waivers, exceptions and modifications; improving the procedures for review and approval of surface use plans of operations; clarifying operators’ responsibility in protecting natural resources and the environment; improving language regarding inspections and compliance; and developing procedures addressing geophysical/seismic operations associated with oil and gas operations that will be line with BLM regulations.

The American Petroleum Institute (API) released its comments on the proposed rulemaking and declared “strong support” for the current efforts on the part of the Trump administration to reduce administrative burdens and create an expedited environmental review process for energy-related projects. Among its recommendations, API suggested that USFS and BLM work hand in hand regarding the lease parcel review process. Furthermore, API stated that “USFS field offices shall have the discretion to participate in a BLM Interdisciplinary Parcel Review (IDPR) Team of resource specialists to review lease sale parcels as part of compliance with NEPA and other legal and policy requirements for adequate review of parcels.”

The public comment period on the proposed rule closed on October 15, 2018. Stay tuned for further legal developments!

This material is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture

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