On March 26, 2015, the Bureau of Land Management (BLM) published in the FEDERAL REGISTER a final rule which would update its regulations governing oil and gas operations on public lands and Indian lands in order to regulate hydraulic fracturing. 80 Fed. Reg. 16128, https://federalregister.gov/a/2015-06658. As a final rule, it becomes legally effective on June 24, 2015, and is not open for public comment. BLM did publish the proposed rule twice for comments, on May 11, 2011, and May 24, 2013.
As discussed in the preamble to the final rule, BLM’s existing regulations addressing hydraulic fracturing were published in 1982 and had most recently been revised in 1988, long before the expansion of hydraulic fracturing in conjunction with the use of horizontal drilling techniques. BLM acknowledges that the rapid expansion of this practice has given rise to “public concern about whether fracturing can lead to or cause the contamination of underground water sources, whether the chemicals used in fracturing pose risks to human health, and whether there is adequate management of well integrity and the fluids that return to the surface during and after fracturing operations.” The new requirements are intended to address these concerns.
The new requirements also provide for public disclosure of chemicals used in fracturing operations, subject to exceptions for trade secret material, although disclosure is not required until fracturing operations are complete. The required disclosure can be done using an existing database with a public access website (www.fracfocus.org), which is managed by the Ground Water Protection Council (a non-profit organization of state water quality regulatory agencies) and the Interstate Oil and Gas Compact Commission (a multi-state government agency charged with balancing oil and gas development with environmental protection).
The preamble to the final rule summarizes BLM’s efforts to consult with tribes and coordinate with states, and it also provides BLM’s responses to comments. Some states and tribes had expressed concerns that BLM’s regulations might require duplicative efforts, if a state or tribe had adopted its own regulations. The final rule addresses this issue by allowing a state or tribe to obtain a variance from a specific provision in the BLM regulations if “specific state or tribal regulations are demonstrated to be equal to or more protective than the BLM’s rules.” A variance can apply to more than one specific requirement of the BLM regulations, but not from the entirety of the regulations.
In the absence of such a variance, an operator with a lease on federal lands must comply with both the BLM regulations and applicable state requirements, to the extent that the state requirements do not conflict with the BLM regulations. Similarly, an operator with a lease on Indian lands must comply with both the BLM regulations and applicable tribal requirements.
The first time that the proposed rule was published for comments, several tribal representatives commented that the rule should not apply to Indian lands or should allow tribes to “opt out.” BLM had previously rejected these comments, saying that the Indian Mineral Leasing Act does not authorize such an opt-out option. Such comments were again made the second time the proposed rule was published, and BLM again rejected the opt-out option. BLM did suggest that “there are opportunities for tribes to assert more control over oil and gas operations on tribal land by entering into Tribal Energy Resource Agreements under the Indian Energy Development and Self-Determination Act (part of the Energy Policy Act of 2005), and to pursue contracts under the Indian Self-Determination and Education Assistance Act of 1975.”
The final rule also defers to states (on federal land) and tribes (on Indian land) to designate aquifers in need of protection from oil and gas operations. States and tribes can also designate aquifers as exempt from the otherwise applicable requirement to isolate water-bearing zones, though such designations must be consistent with the Safe Drinking Water Act.
Some tribal commenters said that BLM has no authority under the Federal Land Policy and Management Act to regulate oil and gas operations on Indian lands. BLM agreed with this comment, and said that its authority on Indian lands is based on other statutes, which vest the Secretary of the Interior with authority, which the Secretary has delegated to BLM.
Please let us know if we may provide additional information regarding the BLM regulations governing hydraulic fracturing on public lands and Indian lands.