Intermountain Oil and as BMP Project Use of “Required” vs. “Recommended” for BMPs

The Intermountain Oil and Gas BMP Project uses a very expansive definition of “best management practices”. Since we include this full range of practices, we have tried to characterize each BMP as either a required or a recommended practice. Sometimes the distinction is clear. For example, if a practice is mandated by valid federal, state, or local statute or regulation, it is always a legal requirement. However, in most instances, BMPs come from a variety of sources, such as resource management plans, government agency guidelines, National Environmental Policy Act (NEPA) documents, or Nongovernmental Organization (NGO) publications, and it is not always readily apparent where a practice is required or merely recommended.

Because BMPs are state-of-the-art mitigation measures that are frequently changing and improving over time, BMPs typically start out as a menu of “recommended” practices. It is then up to the agency or applicant to select the appropriate BMP for mitigating a specific resource impact. BMPs become “required” when they are have been included in a NEPA decision document or have been incorporated into an enforceable permit or authorization. The agency may incorporate the BMP into the permit as a condition of approving the permit, or the applicant may proactively incorporate the BMP into their project proposal. Either way, the applicant is now “required” to ensure the BMP is used.

For the purposes of this project, three criteria have been used to distinguish between required and recommended BMPs:

1) the type of agency or entity identifying the BMP,
2) the type of source document containing the BMP, and
3) the language used in the BMP.

The type of entity identifying a BMP as a desired practice can be an indicator for determining whether a BMP is required or recommended. Most legally required practices are statutory – passed into law by the federal, state or local legislative body (Congress, state legislatures, and local governments). Required practices may also be regulatory – created by a specific rulemaking process by a federal, state or local government agency. These required practices – statutes and regulations – are summarized in the LAWS section of the website, but are not included – provision by provision – in the database.

Generally, government agencies, when authorized by statute, are the only agencies with authority to identify particular practices as legal requirements. Consequently, BMPs identified by NGOs, such as advocacy groups, certain industry associations and working groups, or academic institutions, must always be promoted as voluntary or recommended practices. However, government agencies publish a host of other documents in addition to regulations, such as guidelines, handbooks, and environmental impact statements, that often contain only suggested or encouraged practices. Alternatively, many nonprofit organizations and industry groups issue publications that may summarize or duplicate required industry standards. Therefore, we have also considered the type of source document, the introductory language in the source document, and the particular language of a BMP in determining whether a BMP is required or recommended.

The following are the common types of source documents (excluding statutes and regulations) used in this database along with brief explanations describing how the BMPs contained in each are categorized as either required or recommended. Helpful language from example documents is highlighted as well.

1. Government Agency Documents with Recommended Practices

Government documents with BMPs include agency guidelines, handbooks, resource strategies, and management plans. Typically, they contain recommended practices and are published to educate and encourage industry, regulators, and the public about available best management practices for oil and gas operations. Sometimes required standards are explained in these documents as well.

Examples:

1a. Colorado Greater Sage-grouse Conservation Plan, Colorado Division of Wildlife – Suggested Management Practices (SMPs) Applicable for Oil and Gas Development, within Lease Rights:

“This is partial list of suggested management practices that may be applied to oil and gas operations or other surface-disturbing activities…”

1b. Recommendations for Development of Oil and Gas Resources within Crucial and Important Wildlife Habitats, Wyoming Game and Fish Department:

“The recommendations in this document are a planning tool that provides advanced disclosure of potential wildlife-related concerns, and suggests mitigation and management options companies and resource agencies can incorporate into project designs and operations to benefit wildlife. The general recommendations should be considered within areas of crucial and important wildlife habitats, in which intensive energy developments are planned.”

1c. Handbook on BMPs and Mitigation Strategies for CBM in the Montana Portion of the Powder River Basin, U.S. Department of Energy:

“This handbook is intended to serve as a resource to industry, regulators, land managers, and concerned citizens. The handbook presents background information on CBM activity in the Montana portion of the Powder River Basin while also presenting a number of Best Management Practices and Mitigation Strategies specific to CBM that have been successfully used throughout the United States. The handbook is not intended to be a prescriptive document that specifies required practices. Rather it should be recognized that actual practices and mitigation measures used for a particular site or area will be largely dependent upon land and mineral ownership, geologic and hydrologic conditions, soil types, local and regional wildlife issues, and other unique conditions.”

2. General Government Agency Documents with both Required and Recommended Practices

An example of an agency document containing both required and recommended BMPs:

2a. Bureau of Land Management “Gold Book” – Surface Operating Standards and Guidelines for Oil and Gas Exploration and Development:

“The [Gold Book] was developed to assist operators by providing information on the requirements for obtaining permit approval and conducting environmentally responsible oil and gas operations on Federal lands… The Gold Book provides operators with a combination of guidance and standards for ensuring compliance with agency policies and operating requirements…”

“All pits must be reclaimed to a natural condition that blends with the rest of the reclaimed pad area … the reclaimed pit must be restored to a safe and stable condition … pits must be free of oil and other liquid and solid wastes, allowed to dry, be pumped dry, or solidified in-situ prior to filling.”

“Pits, water impoundments, and surface discharges that present a potential hazard to humans, livestock, wildlife, and other resources should be subject to appropriate mitigation, such as fencing, netting, caging, or covers, as appropriate.”

“Operators are encouraged to substitute less toxic, yet equally effective products for conventional drilling products.”

“Containment dikes are not to be constructed with topsoil or coarse, insufficiently impervious spoil material. Containment is strongly suggested for produced water tanks.”

To add to uncertainty of designating BMPs as required or recommended, the specific language of a BMP (using words like “must”, “will” or “will be required”) sometimes appears to conflict with a document’s more general introductory statements about the content of the source document (that it is only a “guideline” or “includes suggested practice”). In these cases, we have categorized the BMP as “recommended.”

3. National Environmental Policy Act (NEPA) Documents – Required or Recommended Practices (Federal Agencies)

The NEPA requires federal agencies to integrate environmental values into their decision making processes by considering the environmental impacts of their proposed actions and reasonable alternatives to those actions. Agencies typically prepare detailed environmental assessments (EAs) or environmental impact statements (EISs) before they can implement the proposed actions. For example, as they move through the completion process, EISs consist of Draft Environmental Impact Statements (DEIS), Final Environmental Impact Statements (FEIS), and Records of Decision (ROD), all of which may contain BMPs.

In the EIS process, formal adoption of an FEIS occurs with a ROD. Therefore, on the whole, both a DEIS and a FEIS are “recommended documents,” with any BMPs they propose being recommendations as well. However, a DEIS or FEIS may include information on current practices required under present management schemes, often as “existing conditions” or as the “no action alternative” for purposes of comparison with proposed practices. These current practices are labeled as “required” in the database. Similarly, a ROD for a particular EIS is, on the whole, a “required document,” but it may also specify certain BMPs as conditionally applicable, voluntary, or recommended on a site-specific basis. Once the BMPs from the ROD are included within a permit, their status as “required,” becomes absolute.

Example of a DEIS with recommendations:

3a. Vernal Resource Management Plan – Draft Environmental Impact Statement
Appendix A – Vernal Field Office Best Management Practices for Raptors and Associated Habitats:

“Raptor management would be administered under the auspices of Best Management Practices (BMPs). Management activities and land disturbing actions would be subject to the criteria and processes specified within these BMPs.”

“All leases: Land use activities which would have an adverse impact would not be allowed within the spatial buffer of occupied nests.”

Example of a ROD with both requirements and recommendations:

3b. Jonah Infill Drilling Project Record of Decision, Bureau of Land Management

The individual BMPs of this document use mandatory language, but the introduction indicates that only some of the provisions will be conditions of approval for the project. We designate the potential requirements as “recommendations.”

Appendix A – Jonah Infill Drilling Project Administrative Requirements, Conditions of Approval and Mitigation:

“All approved actions within the Jonah Infill Drilling Project Area (JIDPA) may include all or some of the following Conditions of Approval (COAs), administrative requirements, mitigation requirements, and/or Best Management Practices (BMPs).”

“Surface disturbing activities shall not be conducted on slopes in excess of 25 percent or within 500 feet of surface water and/or riparian habitat.”

“The following seasonal restrictions for surface-disturbing activities near active raptor nests/roosting sites/foraging areas will be imposed…”

“Surface disturbance and occupancy will be prohibited within 0.25 mile of the perimeter of the greater sage-grouse leks, and human activity in these areas will be avoided between 8 p.m. and 8 a.m. from March 1 through May 15.”

But some decision on practices to be implemented have been finalized in the ROD. These we characterize as “required.”

Appendix B – [Jonah Infill Drilling Project] Operator Committed Practices:

“Operator-committed practices, which become mandatory requirements with publication of this decision, are included in Appendix B.”

“All of the proposed operator-committed practices identified in this section will be implemented on all federal lands and minerals within the JIDPA.”

Example of BMPs from an ROD that are generally labeled as “required” but may be implemented on a conditional or case-by-case basis. Whether they are indicated as “required” or “recommended” in the database is indicated in brackets:

3c. Record of Decision and Resource Management Plan Amendments for the Powder River Basin Oil and Gas Project, Bureau of Land Management Wyoming State Office

Appendix A – Permit Authority, Mitigation Measures, Management Actions, Standard Conditions of Approval, and Programmatic Mitigation:

“Table A-2 displays the possible mitigation measures as they appeared in Chapter 4 of the Final EIS. Mitigation measures in Table A-2 that have not been adopted are shown with an asterisk [recommended], the remainder have been adopted [required].”

“Standard Conditions of Approval are those measures that apply to all oil and gas development [required] … It is important to note that site-specific mitigation measures are also developed … as needed, on a case-by-case basis at the onsite inspection to address special, unanticipated issues not addressed by a programmatic mitigation measure or standard condition of approval.”

“Programmatic mitigation measures are those, determined through analysis, which may be appropriate to apply at the time of APD approval if site-specific conditions warrant. These mitigation measures can be applied by BLM, as determined necessary at the site-specific NEPA APD stage, as Conditions of Approval and will be in addition to stipulations applied at the time of lease issuance and any standard conditions of approval.” [recommended]

4. Lease Stipulations – Required Practices

Lease stipulations are, be definition, part of the oil and gas lease itself, but they may also be found in secondary source documents, such as NEPA documents or government agency publications. They are important to note because the practices they stipulate are required.

Examples:

Montana Statewide Oil and Gas (Final) Environmental Impact Statement, Bureau of Land Management
4a. Wildlife Appendix, CBM Programmatic Wildlife Monitoring and Protection Plan – Lease Stipulations:

“Wildlife protection measures have been put in place through lease stipulations or terms and conditions … These are mandatory measures or actions that have been developed as a result of wildlife research and input from agencies and Operators.”

The mandatory measures may, however, be limited in scope. If a BMP is “self limiting” (i.e., has a limitation or condition of application within it), we still designate the mandatory BMP as required, but include its range of application.

“In order to protect elk parturition range, surface use is prohibited from April 1 to June 15 within established spring calving range. This protection measure does not apply to the operation and maintenance of production facilities.”

“BLM and Operators will seek input from the private surface owner to include conservation measures in split estate situations.”

While stipulations are mandatory measures, they may also be subject to waiver, exception or modification. Since these changes are made on a case by case basis, the database will still list them as “required” by the document in which they are found.

4b. Waivers, Exceptions and Modifications:

“Waivers – A lease stipulation may be waived by the Authorized Officer (AO) if a determination is made by the BLM, in consultation with FWS, that the proposed action will not adversely affect the species in question.”

“Exceptions to protection measures may be granted by the AO … if the Operator submits a plan that demonstrates that impacts from the proposed action will not be significant or can adequately be mitigated.”

“Modifications may be made by the AO if it is determined that portions of the area do not include habitat protected by the stipulation.”

“In order to protect elk parturition range, surface use is prohibited from April 1 to June 15 within established spring calving range. This protection measure does not apply to the operation and maintenance of production facilities.”

“In order to minimize impacts to sharptail and sage grouse leks, surface occupancy within ¼ mile of known leks is prohibited. The measure may be waived if the AO, in coordination with MFWP, determines that the entire leasehold can be occupied without adversely affecting grouse lek sites, or if all lek sites within ¼ mile of the leasehold have not been attended for 5 consecutive years.”

5. Nongovernment/Nonprofit Organization Documents -- Recommended

BMPs proposed by nongovernment and nonprofit organizations are always recommended.

Examples:

5a. Biodiversity Conservation Alliance – Drilling Smarter: Using Directional Drilling to Reduce Oil and Gas Impacts in the Intermountain West

5b. Earthworks Oil and Gas Accountability Project – The Landowner’s Guide to the New Mexico Surface Owners’ Protection Act

5c. The Western Heritage Alternative – A Sustainable Vision for the Public Lands and Resources of the Great Divide

6. Industry Documents -- Recommended

Unless representative of self-imposed, industry-wide regulations or standards, industry publications generally consist of only recommended or suggested BMPs.

Example:

Petroleum Association of Wyoming – Sage Grouse Management, Recommended Management Practices:

“The [Petroleum Association of Wyoming Sage-Grouse Management Team] will … share the latest research findings and recommended management practices for sustaining balanced and thriving sage-grouse populations.”

7. Academic Documents -- Recommended

BMPs proposed in academic documents, such as published studies, dissertations, and research papers, are always recommended.

Example:

Greater Sage-grouse Population Response to Natural Gas Field Development in Western Wyoming by Matthew J. Holloran, a dissertation submitted to the Department of Zoology and Physiology and the Graduate School of the University of Wyoming