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 Statement of David AlberswerthSenior Policy AdvisorThe Wilderness SocietyRegardingOil and Gas Exemptions in Federal Environmental ProtectionsHouse Committee on Oversight and Government ReformSubmitted for the Hearing RecordOctober 31, 2007Thank you for the opportunity to submit for the record this statement on behalf of TheWilderness Society.Since assuming office in 2001, the Bush Administration has drastically revised federal policiespertaining to the management of the publicly-owned oil and gas resources that underlie manyareas of the federal lands of the western United States. These policies, flowing fromrecommendations articulated in Vice-president Cheney’s secretive energy task force report(
 National Energy Policy – Report of the National Energy Policy Development Group
, May,2001, pp. 5-1 through 5-10), have in effect transformed the Bureau of Land Management (BLM)from its legitimate and statutory role as steward of our public lands for all Americans into theobedient servant of the oil and gas industry. Numerous policy and management decisions duringthe past five years have firmly established that the BLM’s highest priority is to make as muchfederal public land available for oil and gas development as possible, while minimizing theenvironmental safeguards that should accompany oil and gas activities that can and do harmsensitive resources, such as wildlife habitat, water quantity and quality, air quality, public health,and the beauty of our great western landscapes.Unfortunately, until recently Congress has been complicit in the transformation of the BLM froma multiple-use agency to a land agent for the oil and gas industry. For instance, since 2000 theBLM’s oil and gas management program budget has doubled, from $57.8 million in FY 2000 to$115.3 million in FY 2007. Moreover, enactment of the Energy Policy Act of 2005 furthersolidified the primacy of oil and gas development on our federal public lands in a number of ways, for example: by exempting the oil and gas industry from compliance with the Clean WaterAct’s stormwater program for construction activities and from the Safe Drinking Water Act forhydraulic fracturing projects; dedicating federal onshore lease rental receipts to seven “pilotprojects” intended to expedite the issuance of drilling permits; foreshortening the timeframes forBLM reviews of drilling permit applications; prohibiting the BLM from assessing cost recoveryfees on operators to cover the costs of processing drilling permit applications; and providingseveral mandatory “categorical exclusions” from National Environmental Policy Act (NEPA)review for certain types of oil and gas activities on the public lands, an action that the BLM hasinterpreted as a license to ignore the rules governing the use of categorical exclusions put in
 
 2place by both the Council on Environmental Quality (CEQ) and the Department of the Interior.This issue is the subject of the remainder of this statement.Sec. 390 (42 U.S.C. 15942) of the Energy Policy Act of 2005 provided the following:
(a) NEPA REVIEW.—Action by the Secretary of the Interior in managing the public lands, or theSecretary of Agriculture in managing National Forest System Lands, with respect to any of theactivities described in subsection (b) shall be subject to a rebuttable presumption that the use of acategorical exclusion under the National Environmental Policy Act of 1969 (NEPA) would applyif the activity is conducted pursuant to the Mineral Leasing Act for the purpose of exploration ordevelopment of oil or gas.(b) ACTIVITIES DESCRIBED.—The activities referred to in subsection (a) are the following
:
(1) Individual surface disturbances of less than 5 acres so long as the total surface disturbance onthe lease is not greater than 150 acres and site-specific analysis in a document prepared pursuantto NEPA has been previously completed.(2) Drilling an oil or gas well at a location or well pad site at which drilling has occurredpreviously 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 anyenvironmental document prepared pursuant to NEPA analyzed such drilling as a reasonablyforeseeable activity, so long as such plan or document was approved within 5 years prior to thedate of spudding the well.(4) Placement of a pipeline in an approved right-of-way corridor, so long as the corridor wasapproved 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 buildingor facility.
 Though an improvement over the 2005 House bill’s original language, which broadly exemptedvarious oil and gas activities on public lands from compliance with the NEPA entirely, Sec. 390was almost immediately interpreted by the BLM as exempting the agency from having to complywith existing CEQ and Interior Department rules governing the application of categoricalexclusions. According to a September 30, 2005 BLM “Instruction Memorandum”:
“…the CXs established by Section 390 are not subject to the requirement in 40 C.F.R. 1507.3 thatwould preclude their use when there are extraordinary circumstances. This is because the CXxaddressed in this guidance are established by statute and not under the CEQ procedures pursuantto 40 CFR 1507.3 and 1508.4.” (BLM IM No. 2005-247, Attachment 2, p. 1, September 30,2005, excerpt attached)
The CEQ regulations implementing NEPA created and defined the concept of “categoricalexclusions” – there is no reference in the statute itself to this concept. Significantly, CEQ’sregulations defined the term “categorical exclusion” to incorporate the concept of “extraordinarycircumstances”, which if present, precluded the use of a categorical exclusion:
“Categorical exclusion means a category of actions which do not individually or cumulativelyhave a significant effect on the human environment and which have been found to have no sucheffect 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 environmentalimpact statement is required. An agency may decide in its procedures or otherwise, to prepareenvironmental assessments for the reasons stated in sec. 1508.9 even though it is not required to
 
 3
do so.
 Any procedures under this section shall provide for extraordinary circumstances in whicha normally excluded action may have a significant environmental affect 
. (40 C.F.R. 1508.4,emphasis added)
The Department of the Interior’s Departmental Manual, with which the BLM is obligated tocomply, paraphrases CEQ’s definition of categorical exclusion, and references the concept of extraordinary circumstances that may preclude their use, as follows:
Categorical exclusions are defined as a group of actions that would have no significant individualor cumulative effect on the quality of the human environment and,
 for which in the absence of extraordinary circumstances,
neither an environmental assessment nor an environmental impactstatement is required. (Department of the Interior
 Departmental Manual
at 516 DM 2.3 A.(1),cited in 69
Fed. Reg.
10876, March 8, 2004, emphasis added)
A listing of “extraordinary circumstances” that, if present, would preclude the use of acategorical exclusion is found in the Departmental Manual at Chapter 2; Appendix 2, andincludes the following examples: actions which may have significant impacts on health andsafety; sole or principal drinking water aquifers; wetlands; migratory birds; cultural resources,Indian sacred sites; threatened and endangered species habitat; and ecologically significant orcritical areas. (Department of the Interior
 Departmental Manual
Chapter 2; Appendix 2, cited in69
Fed. Reg.
10878, March 8, 2004, excerpt attached) When The Wilderness Society raised objections to the BLM’s interpretation of Section 390 of EPACT in correspondence dated December 1, 2005, we received a response from BLM DirectorClarke, dated December 30, 2005, stating that:
“In the near future, the BLM plans to publish in the Federal Resister a request for publiccomments on the proposed final regulations for Onshore Oil and Gas Operations, Onshore OrderNo. 1, Approval of Operations. These proposed regulations will address the categoricalexclusions adopted in the Energy Policy Act of 2005.” (Letter from Kathleen Clarke, Director,BLM, to Nada Culver, The Wilderness Society, December 30, 2005, attached) 
We had hoped that publication of the BLM’s interpretation of their Section 390 authority in aformal rulemaking procedure would afford the public an opportunity to express our views ontheir defective interpretation of the statute. However, when the BLM published its proposedchanges to Onshore Order #1 on March 13, 2006, no language was included addressing theimplementation of Sec. 390, as Director Clarke had promised in her December 30, 2005 letter.At a subsequent meeting between officials of the BLM and Department of the Interior Solicitor’sOffice on May 11, 2006, I reiterated The Wilderness Society’s position that the BLM wasobligated to issue formal rules implementing their interpretation of Sec. 390 of EPACT, and thatthe BLM was obligated to comply with both the existing CEQ and Interior Department rulesgoverning the application of Section 390 categorical exclusions to oil and gas drilling projects onpublic lands. In correspondence dated May 16, 2006, the BLM reiterated its intention to rely onthe interpretation of Sec. 390 first enunciated in IM # 2005-247 (quoted above), and therefore toignore existing CEQ and Interior Department rules in this regard. (Letter from Mr. Tom Lonnie,Assistant Director, BLM, to David Alberswerth, The Wilderness Society, May 16, 2006,attached)
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