Fish And Wildlife Service Considers Increased Regulation Of Oil And Gas In Refuges

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The U.S. Fish and Wildlife Service announced on February 24 that it will be developing proposed regulations to adopt a significantly more stringent approach to the management of oil and gas activities associated with any private, state, or tribally owned (nonfederal) subsurface mineral interests in the National Wildlife Refuge System.  Current regulations are limited and general, with minimal requirements, and management practices vary widely on a refuge-by-refuge basis.  Following Government Accountability Office reports recommending improvements in the management and oversight of such activities, the FWS is now signaling the development of comprehensive new regulations, including requirements for operating standards, performance bonds, access fees and the issuance of special use permits to enforce conditions in approved plans of operation.  The FWS is seeking public comments on its proposal through the issuance of an Advance Notice of Proposed Rulemaking.  See 79 Fed. Reg. 10080 (Feb. 24, 2014). 

Comments are due April 25, 2014.  Given the potential scope and impact of this rulemaking, it is especially important for affected stakeholders to submit comments at this early stage of the rulemaking process.

Comments Requested

The FWS is not currently proposing specific regulations, but rather is soliciting comments from the public on various topics listed below, including the scope of the proposed rule, the alternatives that should be considered in the associated Programmatic Environmental Impact Statement (PEIS) that will be prepared, and the physical, biological, social and economic effects that should be considered in the PEIS.  In addition, although the FWS does not specifically seek comment on its legal authority to promulgate comprehensive regulations, previous GAO reports found that the FWS’s authority to require permits varies, depending on the nature of the mineral rights, and that the FWS had not reported its determinations regarding the scope of its existing authority and what additional authority it might require.  The FWS seeks comment on the following:

  • Plans of Operation and Special Use Permits
  • Operating Standards
  • Financial Assurances
  • Access Fees
  • Noncompliance
  • Existing Operations
  • Impacts from the Proposed Rulemaking

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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