Final Rule - Management of Non-Federal Oil and Gas Rights (81 FR 79948)

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Federal Register / Vol. 81, No. 219 / Monday, November 14, 2016 / Rules and Regulations

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Parts 28 and 29
[Docket No. FWS–HQ–NWRS–2012–0086;
FXRS12610900000–156–FF09R24000]
RIN 1018–AX36

Management of Non-Federal Oil and
Gas Rights
Fish and Wildlife Service,
Interior.
ACTION: Final rule.
AGENCY:

We, the U.S. Fish and
Wildlife Service (Service), are finalizing
regulations governing the exercise of
non-Federal oil and gas rights outside of
Alaska in order to improve our ability
to protect refuge resources, visitors, and
the general public’s health and safety
from potential impacts associated with
non-Federal oil and gas operations
located within refuges. The exercise of
non-Federal oil and gas rights refers to
oil and gas activities associated with
any private, State, or tribally owned
mineral interest where the surface estate
above such rights is administered by the
Service as part of the Refuge System.
The existing non-Federal oil and gas
regulations have remained unchanged
for more than 50 years and provide only
vague guidance to staff and operators.
This rule will make the regulations
more consistent with existing laws,
policies, and industry practices. It is
designed to provide regulatory clarity
and guidance to oil and gas operators
and refuge staff, provide a simple
process for compliance, incorporate
technological improvements in
exploration and drilling technology, and
ensure that non-Federal oil and gas
operations are conducted in a manner
that avoids or minimizes impacts to
refuge resources.
DATES: This rule is effective December
14, 2016.
ADDRESSES: Supplementary documents
prepared in conjunction with
preparation of this rule, including an
economic analysis and an
environmental impact statement, and
the public comments received on the
proposed rule are available at
www.regulations.gov at Docket No.
FWS–HQ–NWRS–2012–0086.
FOR FURTHER INFORMATION CONTACT:
Scott Covington, U.S. Fish and Wildlife
Service, Division of Natural Resources
and Planning, MS: NWRS, 5275
Leesburg Pike, Falls Church, VA 22041;
telephone 703–358–2427.
SUPPLEMENTARY INFORMATION:

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SUMMARY:

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Executive Summary
This rule revises the existing
regulations at subpart C, part 29, of title
50 of the Code of Federal Regulations
(CFR) and adds new regulations at
subpart D of 50 CFR part 29 to govern
the exercise of non-Federal oil and gas
rights within refuges outside of Alaska.
This revision improves the effectiveness
of the Service to protect refuge resources
and uses from avoidable, unnecessary
impacts by non-Federal oil and gas
operations. It will also bring consistency
and clarity for both operators and the
Service as to the process by which
operators may access non-Federal oil
and gas on the National Wildlife Refuge
System (NWRS). The Service defines the
National Wildlife Refuge System to
consist of all lands, waters, and interests
therein that it administers (25 CFR
25.12) and does not apply its regulations
to the non-Federal lands found within
refuge boundaries (i.e., inholdings).
The Service promulgated the current
regulations at 50 CFR 29.32 to govern
the exercise of non-Federal mineral
rights on the NWRS more than 50 years
ago, and they have not been updated
since. The current regulations outline a
general policy to minimize impacts to
refuge resources to the extent
practicable from all activities associated
with non-Federal mineral exploration
and development where access is on,
across, or through federally owned or
controlled lands or waters of the NWRS.
However, they have been ineffective at
protecting refuge resources because they
do not provide operators or refuge staff
with an explicit process or requirements
for operating on refuge lands, resulting
in inconsistency in protections for
refuge resources and uses.
Therefore, updating these regulations
is a necessary exercise of the Service’s
authority to ensure that we are meeting
our responsibilities under the National
Wildlife Refuge System Administration
Act (NWRSAA), as amended by the
National Wildlife Refuge System
Improvement Act (NWRSIA) (16 U.S.C.
668dd et seq.), to protect refuge
resources and uses while ensuring that
mineral rights holders have reasonable
access to develop their non-Federal oil
and gas.
Key components of the rule include:
• A permitting process for new
operations;
• A permitting process for wellplugging and reclamation for all
operations;
• Information requirements for
particular types of operations;
• Operating standards so that both the
Service and the operator can readily
identify what standards apply to
particular operations;

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• Fees for new access beyond that
held as part of the operator’s oil and gas
right;
• Financial assurance (bonding);
• Penalty provisions;
• Exemption of refuges in Alaska
from these requirements;
• Codification of some existing
Service policies and practices.
Background
Advance Notice of Proposed
Rulemaking, Proposed Rule, and Public
Comment Period
This rulemaking effort began on
February 24, 2014, when we issued an
advance notice of proposed rulemaking
(ANPR) (79 FR 10080) to assist us in
developing the proposed rule. The
ANPR had a 60-day comment period,
ending April 25, 2014. On June 9, 2014,
we reopened the comment period for
another 30 days, ending July 9, 2014 (79
FR 32903). We received comments from
unaffiliated private citizens (36),
conservation organizations (14), State
agencies (8), counties (2), Alaska Native
Corporations (2), a tribal agency, oil and
gas owners and operators (6), business
associations (5), and a Federal agency,
along with almost 80,000 form letter
comments from members of two
environmental organizations. The
majority of commenters were in favor of
strengthening and expanding the
regulations to better protect refuge
resources and values. Some commenters
requested that we not revise the existing
regulations, while others questioned
whether the Service had the statutory
authority to regulate non-Federal oil and
gas operations on refuges.
We utilized these comments to
prepare the proposed rule, which we
published on December 11, 2015 (80 FR
77200), and opened, with the associated
draft Environmental Impact Statement
(EIS), a 60-day comment period. During
this comment period we received
approximately 39,600 responses (mostly
form letters) indicating general support
regulating oil and gas activities on
refuges and our proposed rule.
However, many commented that the
proposed rule did not go far enough in
regulating these activities, with some
requesting a ban on any oil and gas
activity, or at least hydraulic fracturing,
in refuges. We also received 12 letters
from State agencies, oil and gas
associations, oil companies, and an
individual opposing the rulemaking.
Primary reasons for opposition are that
these entities believe that the Service
lacks authority to regulate private oil
and gas and existing State and Federal
regulations are sufficient to protect
refuges. More information on the ANPR,

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Federal Register / Vol. 81, No. 219 / Monday, November 14, 2016 / Rules and Regulations
proposed rule, and public comments is
available at http://www.fws.gov/refuges/
oil-and-gas/rulemaking.html and also at
www.regulations.gov at Docket No.
FWS–HQ–NWRS–2012–0086.
A detailed discussion of all changes
made after consideration of comments
on the proposed rule is contained in the
Summary of and Response to Public
Comments section below.

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Non-Federal Oil and Gas on the NWRS
Non-Federal oil and gas rights exist
within the NWRS in situations where
the oil and gas interest has been severed
from the estate acquired by the United
States, either because:
• The United States acquired
property from a grantor that did not own
the oil and gas interest; or
• The United States acquired the
property from a grantor that reserved the
oil and gas interest from the
conveyance.
Non-Federal oil and gas interests can
be held by individuals, partnerships,
for-profit corporations, nonprofit
organizations, tribes, or States and their
political subdivisions. We recognize
that interests in non-Federal oil and gas
are property rights that may be taken for
public use only with payment of just
compensation in accordance with the
Fifth Amendment of the U.S.
Constitution. Application of this rule is
not intended to result in the taking of a
property interest, but rather to impose
reasonable regulations on activities that
involve or affect federally owned lands
and resources of the NWRS to avoid or
minimize impacts from such activities
to the maximum extent practicable.
These regulations do not apply to the
development of the Federal mineral
estate, including Federal oil and gas,
which are administered by the Bureau
of Land Management (BLM), under the
Mineral Leasing Act and the Federal
Land Policy and Management Act. In
areas where oil and gas rights are owned
by the United States, and leasing is
authorized, the applicable regulations
are found at 43 CFR part 3100 et seq.
There is a general prohibition to leasing
Federal oil and gas on refuge lands (43
CFR 3101.5–1). These regulations do not
apply to refuges located in Alaska.
Examples of non-Federal oil and gas
operations conducted on refuges
include: Geophysical (seismic)
exploration; exploratory well drilling;
field development well drilling; oil and
gas well production operations,
including installation and operation of
well flowlines and gathering lines;
enhanced recovery operations; well
plugging and abandonment; and site
reclamation.

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Impacts of Oil and Gas Activities on
Refuge Resources and Uses
Oil and gas activities have the
potential to adversely impact refuge
resources and uses in some or all of the
following manners:
• Surface water quality degradation
from spills, storm water runoff, erosion,
and sedimentation;
• Soil and groundwater
contamination from existing drilling
mud pits, poorly constructed wells,
improperly conducted enhanced
recovery techniques, spills, and leaks;
• Air quality degradation from dust,
natural gas flaring, hydrogen sulfide gas,
and emissions from production
operations and vehicles;
• Increased noise from seismic
operations, blasting, construction, oil
and gas drilling and production
operations;
• Reduction of roadless areas on
refuges;
• Noise and human presence effects
on wildlife behavior, breeding, and
habitat use;
• Disruption of wildlife migration
routes;
• Adverse effects on sensitive and
endangered species;
• Viewshed (an area of land, water, or
other environmental element that is
visible to the human eye from a fixed
vantage point) intrusion by roads,
traffic, drilling equipment, production
equipment, pipelines, etc.;
• Night sky intrusion from artificial
lighting and gas flares;
• Disturbance to archaeological and
cultural resources associated with
seismic exploration and road/site
preparation, associated with
maintenance activities, or by spills;
• Visitor safety hazards from
equipment, pressurized vessels and
lines, presence of hydrogen sulfide gas,
and leaking oil and gas that can create
explosion and fire hazards;
• Wildlife mortality from oil spills or
entrapment in open-topped tanks or
pits, poaching, and vehicle collisions;
• Fish kills from oil and oilfield brine
spills; and
• Vegetation mortality from oilfield
brine spills.
Service Authority To Regulate NonFederal Oil and Gas Activities
As noted in the preamble to the
proposed rule, one of the principal
recommendations of the 2003
Government Accountability Office
report to Congress was for the Service to
clarify its regulatory authority with
respect to the exercise of non-Federal oil
and gas rights within the Refuge System.
We provided in the preamble to the

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79949

proposed rule an explanation of the
basis for the Service’s authority. As
further discussed below, the Service
received opposing public comments on
its analysis. While some commenters
asserted that the Service lacked the
authority to regulate such private
property rights, others agreed that we do
have this regulatory authority.
After carefully considering the public
comments, as well as engaging in
further discussions with the Office of
the Solicitor of the Department of the
Interior, the Service concludes that the
National Wildlife Refuge System
Administration Act, as amended in 1997
by the National Wildlife Refuge System
Improvement Act (NWRSAA) (16 U.S.C.
668dd et seq.), provides us the statutory
authority to promulgate these
regulations. In turn, Congress’s
authority to enact the NWRSAA is the
Property Clause of the United States
Constitution, which provides it the
power ‘‘to dispose of and make all
needful Rules and Regulations
respecting the Territory or other
Property belonging to the United
States.’’ U.S. Const. art IV, sec. 3, cl. 2.
In 1997, Congress declared the
Service’s mission to be: ‘‘to administer
a national network of lands and waters
for the conservation, management, and
where appropriate, restoration of the
fish, wildlife, and plant resources and
their habitats within the United States
for the benefit of present and future
generations of Americans.’’ (16 U.S.C.
668dd(a)(2)). The NWRSAA further
directs the Secretary of the Interior, in
administering the System, to:
• Provide for the conservation of fish,
wildlife, and plants, and their habitats
within the NWRS;
• Ensure that the biological integrity,
diversity, and environmental health of
the NWRS are maintained for the benefit
of present and future generations of
Americans;
• Ensure that the mission of the
NWRS and the purposes of each refuge
are carried out;
• Ensure effective coordination,
interaction, and cooperation with
owners of land adjoining refuges and
the fish and wildlife agency of the States
in which the units of the NWRS are
located;
• Assist in the maintenance of
adequate water quantity and water
quality to fulfill the mission of the
NWRS and the purposes of each refuge;
• Recognize compatible wildlifedependent recreational uses as the
priority general public uses of the
NWRS through which the American
public can develop an appreciation for
fish and wildlife;

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Federal Register / Vol. 81, No. 219 / Monday, November 14, 2016 / Rules and Regulations

• Ensure that opportunities are
provided within the NWRS for
compatible wildlife-dependent
recreational uses; and
• Monitor the status and trends of
fish, wildlife, and plants in each refuge.
To carry out its mission and these
statutory directives to administer the
Refuge System, Congress provided the
Service the authority to issue
regulations to carry out the NWRSAA
(16 U.S.C. 668dd(b)(5)), as well as to
prescribe regulations to ‘‘permit the use
of any areas within the System for any
purpose. . . .’’ (16 U.S.C.
668dd(d)(1)(A)). In this regard, the
statutory authority of the Service is
substantially similar to that of the
National Park Service (NPS), which
since 1979 has regulated the exercise of
non-federal oil and gas rights within the
Park System on the basis of its authority
to issue regulations ‘‘necessary or
proper for the use and management of
System units’’ (54 U.S.C. 100751).
The rule ‘‘applies to all operators
conducting non-Federal oil and gas
operations outside of Alaska on Serviceadministered surface estates held in fee
or less-than fee (excluding coordination
areas) or Service-administered waters
within the boundaries of the refuge to
the extent necessary to protect those
property interests.’’ Thus, the regulation
directly relates to the Service mission
‘‘to administer a national network of
lands and waters for the conservation,
management, and where appropriate,
restoration of the fish, wildlife, and
plant resources and their habitats . . .’’
and various statutory directives,
including the conservation of fish and
wildlife within the NWRS and ensuring
their biological integrity. The rule,
therefore, falls within the Service’s
authority to issue regulations to carry
out the NWRSAA (16 U.S.C.
668dd(b)(5)). Regulating the use of
Service-administered surface estates and
waters also falls within the Service’s
statutory authority to issue regulations
to ‘‘permit the use of any areas within
the System for any purpose. . . .’’
Several relatively recent appellate
court decisions support our
interpretation of the NWRSAA. In
Burlison v. United States (533 F.3d 419
(6th Cir. 2008)), the appeals court held
that the Service’s authority to permit the
use of roads on refuge lands included
the power to reasonably regulate a
reserved easement within a refuge:
We do conclude, however, that the Fish
and Wildlife Service may legitimately
exercise the sovereign police power of the
Federal Government in regulating the
easement. Section 668dd(d)(1)(B) delegates
the power to the Secretary of the Interior (and
the Fish and Wildlife Service) ‘‘under such

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regulations as he may prescribe,’’ to ‘‘permit
the use of . . . any areas within the System
for purposes such as . . . roads.’’

Id. at 438. Burlison also relied on the
decision of the U.S. Court of Appeals
Eighth Circuit in Duncan Energy Co. v.
United States Forest Service, 50 F.3d
584 (8th Cir. 1995), which upheld the
Forest Service’s authority to regulate
non-Federal oil and gas rights on the
basis of statutory authority that is also
very similar to that of the NWRSAA:
Under the Bankhead-Jones Farm Tenant
Act, Congress directed the Secretary of
Agriculture ‘‘to develop a program of land
conservation and land utilization.’’ 7 U.S.C.
Sec. 1010 (1988). The Act directs the
Secretary to make rules as necessary to
‘‘regulate the use and occupancy’’ of acquired
lands and ‘‘to conserve and utilize’’ such
lands. 7 U.S.C. Sec. 1011(f) (Supp.V.1993).
The Forest Service, acting under the
Secretary’s direction, manages the surface
lands here as part of the National Grasslands,
which are part of the National Forest System.
See 16 U.S.C. Sec. 1609(a) (1988). Congress
has given the Forest Service broad power to
regulate Forest System land. See, e.g., 7
U.S.C. Sec. 1011 (1988 & Supp.V.1993); 16
U.S.C. Sec. 551 (Supp.V.1993).

Id. at 589. Similarly, the U.S. Court of
Appeals for the Fifth Circuit has
interpreted the NWRSAA to authorize
the Service to regulate access and use of
refuge lands by holders of valid interests
in land. School Board of Avoyelles
Parish v. United States Department of
the Interior (647 F.3d 570 (5th Cir.
2011)). The School Board administered
an enclosed estate within the refuge and
under Louisiana property law was
entitled to a right of passage over
neighboring property to the nearest
public road. The Service did not dispute
that a right to cross refuge lands existed,
but asserted it could condition such use,
and imposed permit limits on the times
of day and types of vehicles that could
use the right-of-way to access the
enclosed estate. Reversing the district
court, the Fifth Circuit affirmed the
authority under the NWRSAA and
Service regulations to require a permit
and to impose reasonable conditions for
‘‘any person entering a national wildlife
refuge’’ even where that person held
property rights afforded under the laws
of Louisiana. Citing Burlison and a
series of Supreme Court and circuit
court cases interpreting the Property
Clause, the Fifth Circuit held that
requiring a permit for entry and use, and
imposing reasonable restrictions on the
exercise of the non-Federal property
rights, was well within Federal
authority under the Property Clause.
The primary arguments that the
Service lacks the necessary regulatory
authority are based on the analysis
contained in a 1986 memorandum from

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the Associate Solicitor, Division of
Conservation and Wildlife (‘‘1986
Opinion’’) that concluded the Service
then lacked the authority from Congress
to adopt regulations requiring permits
for access by holders of mineral
interests, unless the authority was
provided for in the deed by which the
United States acquired title to the
surface estate. That opinion relied in
part on Caire v. Fulton, 1986 U.S. Dist.
LEXIS 31049 (W.D. La. 1986), an
unpublished district court decision,
where the United States had explicitly
agreed during eminent domain
proceedings to delete from the proposed
deed a provision authorizing Service
regulation of the oil and gas interests
not being acquired.
The 1986 Opinion was also premised
on a provision of the Migratory Bird
Conservation Act (MBCA), originally
enacted in 1929 and amended in 1935,
that now provides:
The Secretary of the Interior may do all
things and make all expenditures necessary
to secure the safe title in the United States
to the areas which may be acquired under
this subchapter, but no payment shall be
made for any such areas until the title thereto
shall be satisfactory to the Attorney General
or his designee, but the acquisition of such
areas by the United States shall in no case
be defeated because of rights-of-way,
easements, and reservations which from their
nature will in the opinion of the Secretary of
the Interior in no manner interfere with the
use of the areas so encumbered for the
purposes of this subchapter, but such rightsof-way, easements, and reservations retained
by the grantor or lessor from whom the
United States receives title under this
subchapter or any other Act for the
acquisition by the Secretary of the Interior of
areas for wildlife refuges shall be subject to
rules and regulations prescribed by the
Secretary of the Interior for the occupation,
use, operation, protection, and
administration of such areas as inviolate
sanctuaries for migratory birds or as refuges
for wildlife; and it shall be expressed in the
deed or lease that the use, occupation, and
operation of such rights-of-way, easements,
and reservations shall be subordinate to and
subject to such rules and regulations as are
set out in such deed or lease or, if deemed
necessary by the Secretary of the Interior, to
such rules and regulations as may be
prescribed by him from time to time. (16
U.S.C. 715e)

The Service broadly construes its
statutory authority to issue regulations
‘‘to permit the use of any area within the
System for any purpose’’ and that the
NWRSAA, not the MBCA, is therefore
the controlling authority with respect to
regulating non-federal oil and gas rights.
While the specific facts of the
unreported decision in Caire have
always suggested that it was of limited
precedential value, the Fifth Circuit’s

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Federal Register / Vol. 81, No. 219 / Monday, November 14, 2016 / Rules and Regulations
decision in Avoyelles Parish is the
controlling juridical authority to apply
in that circuit. Moreover, even if the
MBCA provisions were construed to
limit the applicability of the NWRSAA
authority, which clearly it does not,
those limits would apply only to lands
acquired under that Act. As of the end
of Fiscal Year 2015, approximately 31.3
percent of the total 8,100,204.93 acres of
Federal lands and interests in lands in
252 of the Nation’s approximately 560
National Wildlife Refuges have been
purchased under authority of the
MBCA.
In our review of various deeds used
by the Service over the years to acquire
lands and interests in lands that make
up the NWRS, we find many variations
were used and that it is not possible to
review or summarize here all such
provisions, or ensure that we are
familiar with the circumstances
surrounding each acquisition of NWRS
lands that did not include oil and gas
rights. As part of the pre-application
meeting with the Service (see § 29.91),
and/or the submission of a permit
application (see § 29.94), we will
provide the opportunity to receive
copies of any deeds and other relevant
information that the applicant believes
would control or otherwise limit the
applicability of any provision of this
rule to the particular applicant’s
operations. We intend this process to
ensure on a case-by-case basis that the
Service fully considers all relevant
information concerning the particular
acquisitions before imposing specific
requirements on the applicant’s
operations. The Service will respect
applicable deed conditions; however,
the rule requirements will apply to the
extent that they do not conflict with
such deed conditions, which we believe
will be the situation in most cases. The
Solicitor’s Office has withdrawn the
1986 Opinion on the basis that the
opinion is out of date and does not
reflect the current state of law with
regard to the Service’s full authorities to
manage lands within units of the
NWRS. The Solicitor will be issuing a
new opinion in the near future that sets
out the supporting legal analysis of the
underlying authorities upon which the
Service is adopting this rule.

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Final Rule
Summary of Final Rule
The rule generally requires that
operators receive permits for new nonFederal oil and gas activities on the
NWRS; provide a regulatory framework
to achieve the necessary protections for
refuge resources; and improve
regulatory consistency to the benefit of

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both refuge resources and oil and gas
operators. The rule contains
performance-based standards that
provide flexibility to resource managers
and operators to use evolving
technologies within different
environments to achieve the standards.
It establishes standards for surface use
and site management, specific resource
protections, spill prevention and
response, waste management, and
reclamation. Additionally, the rule
contains procedures for permit
applications and Service review and
approval. Finally, there are provisions
for financial assurance (bonding), access
fees, mitigation, change of operator,
permit modification, and prohibitions
and penalties. We incorporated public
input received during the rulemaking
process to shape the rule.
Permitting Approach
The permitting process allows the
Service to ensure that refuge resources,
as well as public health and safety, are
protected to the greatest extent
practicable. Under the rule, the Service
requires the following:
a. New operations are by permit only.
Operators conducting new operations
must obtain an operations permit before
commencing new or modified
operations within a refuge (§ 29.42).
This requirement addresses exploration,
drilling, production, enhanced recovery
operations, transportation, plugging,
and reclamation operations. We
encourage operators to contact the
Service early in the process so that the
Service can provide suggestions to
improve the application. Additionally,
an operator will be authorized to begin
operations only after the operator has
received all other required State and
Federal permits.
b. Operations under an existing
Service permit may continue under the
terms of that permit, but must comply
with existing Federal, State, and local
laws and regulations and the applicable
general terms and conditions of this rule
(§ 29.43). Operators are required to
obtain a new permit or amend their
existing permit if they propose to
conduct new operations or modify their
existing operations (i.e., proposed
activities outside the scope of their
existing approval that will have impacts
on refuge resources as determined by
the Service). At the time of reclamation,
the Service will review existing permits
and modify them as necessary to ensure
compliance with all Service reclamation
standards.
c. Operators with operations not
under a Service permit being conducted
prior to the effective date of this rule, or
prior to a boundary change or

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establishment of a new refuge, are
considered ‘‘pre-existing operators’’ and
may continue to operate as they have
been, but they must comply with
existing Federal, State, and local laws
and regulations and the applicable
general terms and conditions of this rule
(§ 29.44). Additionally, these operators
are required to obtain an operations
permit for any new operations or for any
modification to their existing operation.
Finally, once production operations
cease, the operator must obtain an
operations permit for plugging and
reclamation, or to maintain their well(s)
in extended shut-in status.
d. All operators must have a permit
for plugging and reclamation and
comply with all Service reclamation
standards.
e. When pre-existing operations are
transferred, the new operator must
obtain an operations permit.
f. Wells drilled from outside refuges or
on non-Federal inholdings to access
non-Federal minerals are exempt from
these regulations.
g. Operations on refuges in Alaska are
exempt from these regulations.
However, the performance-based
standards of this rule may be used, as
appropriate, as guidance in determining
how an operator would meet the various
requirements of ANILCA and ANCSA to
protect refuge resources and uses.
The Service finds that this permitting
process is the best way to manage oil
and gas operations and protect refuge
resources on the NWRS and using time,
place, and manner stipulations are the
most effective way for the Service to
avoid or minimize impacts. The ‘‘place’’
factor in the ‘‘time, place, and manner’’
equation is often most important in
terms of ability to protect an
environmental resource. The risks
created by a poorly selected location
cannot easily be overcome with even the
best operational methods. Conversely,
proper site selection can do much to
mitigate the effects of accidents or
environmentally unsound practices. The
‘‘time’’ factor restricts the timing of
operations to remove or minimize
impacts on resources that are only
seasonally present. The ‘‘manner’’ factor
is the method in which oil and gas
activities are conducted, using best
management practices. Therefore,
requiring a permit that contains such
stipulations is the most effective way to
avoid or minimize impacts of new
operations.
Proper site planning, timing
restrictions, and best management
practices established through the permit
process for new operations will
accomplish great improvements in
resource protection. Because existing

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operations with a special use permit
already have stipulations in those
permits that have been implemented to
protect refuge resources and uses, they
are allowed to continue their operations
under the terms of that permit.
Furthermore, the Service is not
requiring a permit for operators with
existing operations not currently under
a permit (pre-existing operations)
because a majority of the impacts
avoided or mitigated under the permit
have already occurred, and the permit
process can result in substantial
administrative and operational costs on
both the Service and the operator. These
costs (similar to those of permitting new
operations) could be disproportional to
the environmental benefits gained
where the operator’s well has already
been drilled and the area of operations
(access route, well site, production
facilities, and routes for gathering lines)
has already been established.
Our analysis found that the Service
could eliminate many of the ongoing,
unnecessary impacts to refuge resources
and uses resulting from the production
phase of pre-existing operations by
enforcing State laws and regulations on
Service-administered lands and waters.
Making violation of applicable State
laws related to oil and gas a prohibited
act under the rule allows the Service to
enforce these requirements as Federal
requirements, and so gives us greater
enforcement capabilities in ensuring
that unnecessary impacts from these
operations, such as leaks and spills, are
avoided or minimized. This approach to
permitting allows the Service to focus
its limited time and resources on those
new operations that create the highest
level of incremental impacts. Also, by
requiring all operators, pre-existing,
existing with a Service-issued permit,
and new, to have a permit for plugging
and reclamation, we can ensure
rehabilitation of impacted habitat.
When a well is drilled on inholdings
or non-Federal adjacent lands, impacts
to refuge resources are avoided or
minimized to a great extent. Therefore,
the Service’s approach of exempting
downhole aspects of these operations
that occur within a refuge from the
regulations is intended to provide an
incentive for operators to use drilling
from a surface location not administered
by the Service in order to reach their oil
and gas rights under the refugeadministered surface estate. However,
anytime an operator needs to physically
cross Service land for access, including
access to a non-Federal surface location,
such as an inholding, to conduct
operations, then the operator must
comply with the applicable provisions
of this subpart for obtaining approval

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from the Service for such access,
including obtaining an operations
permit covering the new access or
modification to the existing access.
Operating Standards
The Service developed this rule using
a suite of performance-based standards
that establish goals and define a desired
level of protection for refuge resources
and uses. This approach provides
flexibility to resource managers and
operators to best protect refuge
resources and uses over time and across
various environments by uses of varied
technologies and methods. Resource
managers and operators will identify
and develop specific actions and best
management practices that are then
incorporated into operations permits. In
contrast, prescriptive regulations define
specific requirements of time, place, and
manner and may not fully consider how
these measures achieve the desired level
of resource protection or how they may
apply in different environments. The
Service examined other Federal and
State oil and gas regulations and
determined that the performance-based
standards approach provided the most
efficient means of successfully avoiding
or minimizing the effects of oil and gas
operations on refuge resources and
visitor uses. A one-size-fits-all (i.e.,
prescriptive) approach does not work
due to the widely differing
environments found at the various
refuges with non-Federal oil and gas
rights across the country. A
performance-based standards model has
been successfully used by NPS for more
than 35 years and applied in the context
of a permit that contains specific actions
an operator must take to meet the
regulatory standards.
In developing and analyzing the rule
and alternatives, the Service found that
the preponderance of impacts and risks
of impacts to refuge resources associated
with exploration and development of oil
and gas emanate from surface activities.
However, mishaps below the surface
can adversely affect the surficial
groundwater systems that are important
to the success of many national wildlife
refuges. This finding holds true for
operations that include the use of
hydraulic fracturing. The Service found
that well drilling and production
operations that include the use of
hydraulic fracturing have similar types
of surface activities (e.g., road and pad
construction, tractor-trailer truck traffic,
use of water, use of chemicals, use of
large diesel-powered engines,
generation of waste) as operations that
do not include hydraulic fracturing.
Hydraulic fracturing operations,
particularly those used in combination

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with horizontal drilling techniques to
access oil or gas in shale or other ‘‘tight’’
formations, usually increase the scope,
intensity, and duration of activities
commonly associated with oil and gas
well drilling and completion, as well as
the pressures to which the well casings
are subjected.
In the context of this rule, the term
‘‘hydraulic fracturing’’ means those
operations conducted in an individual
wellbore designed to increase the flow
of hydrocarbons from the rock formation
to the wellbore through modifying the
permeability of reservoir rock by
applying fluids under pressure to
fracture it. It does not include the
comprehensive list of all oil and gas
activities associated with development
that happens to include hydraulic
fracturing. While the rule’s operating
standards are not specific to hydraulic
fracturing operations, they were
developed with the expectation that
hydraulic fracturing will occur on
refuge lands and give the Service the
ability to effectively manage the
additional impacts that hydraulic
fracturing may have on refuge resources
and uses.
The Service notes that BLM has
recently promulgated regulations
addressing hydraulic fracturing on
Federal and Indian lands at 43 CFR part
3160 (80 FR 16128, March 26, 2015). We
carefully considered the recently
promulgated BLM oil and gas
regulations on hydraulic fracturing.
(The Service also notes that those
regulations have been set aside by the
U.S. District Court in Wyoming, and
that decision is on appeal to the United
States Court of Appeals for the Tenth
Circuit.) The Service and BLM take
different approaches to operating
standards because of our differing
statutory bases for regulating the
exercise of oil and gas rights.
Specifically, the BLM has regulatory
authority over the development of the
Federal mineral estate, including
Federal oil and gas resources under
Federal and Indian lands. Instead, these
Service regulations address private
property rights within refuges and are
based on the authorities and directives
of the NWRSAA, including ‘‘to
administer a national network of lands
and waters for the conservation,
management, and where appropriate,
restoration of the fish, wildlife, and
plant resources and their habitats within
the United States for the benefit of
present and future generations of
Americans.’’ Therefore, the Service’s
regulations are focused on avoiding or
minimizing impacts to federally owned
and administered lands and resources of
the NWRS to the maximum extent

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practicable by using the most
technologically feasible, least damaging
oil and gas development methods to
protect refuge resources and uses.
The rule maintains the nonprescriptive operating standards from
the proposed rule, which are similar to
the existing NPS regulations in 36 CFR,
subpart B (the ‘‘9B’’ regulations), and
provide operators flexibility to design
operations while protecting refuge
resources, uses, and visitor health and
safety. The Service’s approach is to
review an operator’s submissions to
determine if they are avoiding or
minimizing impacts to the maximum
extent practicable, and if not, to include
in the operating permits the terms and
conditions that will ensure that they do
so.
State Regulations
The Service’s goal in this rule is to
provide a regulatory regime that
complements State regulatory programs
to the benefit of the surface estate and
the resources for which we are
entrusted, while not compromising the
ability of operators to develop their
resource. The Service and State oil and
gas agencies have fundamentally
different missions. The Service’s legal
mandate is to conserve fish, wildlife,
and plant resources and their habitats
for the benefit of present and future
generations. In contrast, State oil and
gas regulations typically focus on the
protection of mineral rights and
‘‘conservation’’ of the oil and gas
resources (i.e., minimizing waste of oil
and gas resources). From a regulatory
perspective, management of oil and gas
operations is necessary in order for the
Service to protect its surface resources
and meet its congressionally mandated
mission.
The Service’s intention is to avoid or
minimize potential procedural and
operational duplication of State
programs, while working cooperatively
to achieve common objectives between
the Service, States, and operators. The
Service received several comments from
the public on the effectiveness of State
regulations in protecting refuge
resources and uses, and that issue is
discussed further below in our response
to comments.
In the context of enforcing State oil
and gas regulations, the Service focus is
on noncompliance issues that have the
potential to adversely affect refuge
resources and visitor uses. Making
violation of non-conflicting provisions
of State oil and gas law and regulations
a prohibited act under the rule allows us
to enforce on refuges as a matter of
Federal law, the same requirements
already imposed on operators by a State.

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States may not have enough inspectors
to ensure companies are meeting State
standards. Louisiana, the State with the
most non-Federal oil and gas production
on refuge lands, recently reported that it
lacks an adequate number of inspectors
and its inspection rate is too low. Under
this rule, Refuge Law Enforcement will
work cooperatively with States to
ensure that operators on refuges are
meeting Service and State regulatory
requirements with a minimum of
duplication.
Summary of and Response to Public
Comments
A summary of substantive comments
and Service responses is provided
below followed by a table that sets out
changes we have made to the proposed
rule based on the analysis of the
comments and other considerations.
Authority
1. Comment: We received comments
both in opposition to and in support of
our general authority to manage oil and
gas operations on Refuge lands.
Commenters opposing our authority
generally noted that they believe the
Service has limited authority to regulate
oil and gas operations based on the
authority by which the Service acquired
the land and specific deed language in
the Migratory Bird Conservation Act
(MBCA; 16 U.S.C. 715e) and the
Supreme Court decision in United
States v. Little Lake Misere Land Co.
(412 U.S. 580,597–98 (1973)), which
interpreted the MBCA to require the
Service to express in the deed language
that non-Federal mineral rights will be
subject to regulation. Commenters also
cited subsequent case law and the
legislative history of both the National
Wildlife Refuge System Administration
Act, as amended by the National
Wildlife Refuge System Improvement
Act (16 U.S.C. 668dd) (NWRSAA and
NWRSIA), to contend that the Service
has not since been granted specific
authority to regulate non-Federal
mineral rights and so, absent specific
deed language, the Service is limited to
common law in protecting refuge
resources and uses from impacts
associated with oil and gas operations.
Other commenters expressed support
for our general authority and
responsibility to promulgate regulations
to manage non-Federal oil and gas based
on the Property Clause of the
Constitution (U.S. Const.) and the
NWRSIA, as well as subsequent case
law that has held that the Service does
have the authority to reasonably
regulate access to private rights on the
NWRS (see Sch. Bd. of Avoyelles Par. v.
U.S. Dep’t of Interior, 647 F.3d 570, 581,

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581 n.4 (5th Cir. 2011); Burlison v.
United States, 533 F.3d 419, 434–35
(6th Cir. 2008)).
Service Response: We have carefully
considered all the comments, and the
Service concludes that the NWRSAA, as
amended by the NWRSIA, provides us
the statutory authority pursuant to
Congress’ Property Clause powers to
promulgate and implement these
regulations as further explained in the
preamble to the proposed rule.
Furthermore, we conclude these
regulations are also consistent with
common law principles that a mineral
rights holder’s access to their minerals
cannot unreasonably impact the surface
estate. These regulations respect an
operator’s right to use the surface estate
on refuges while protecting and
minimizing impacts to refuge resources
and uses to comply with the unique
mission of these public lands ‘‘for the
conservation, management, and where
appropriate, restoration of the fish,
wildlife, and plant resources and their
habitats within the United States for the
benefit of present and future generations
of Americans.’’ (16 U.S.C. 668dd(a)(2)).
For additional information on our
authorities, see the section on Service
Authority to Regulate Non-Federal Oil
and Gas Activities. With regard to the
comment citing the Supreme Court Case
U.S. v. Little Lake Misere Land Co., as
we state in the Service Authority to
Regulate Non-Federal Oil and Gas
Activities section, the Service will
respect applicable deed conditions,
however, the rule requirements will
apply to the extent that they do not
conflict with such deed conditions.
Acquisition of Minerals Under the
NWRS
2. Comment: The Service received
several comments suggesting that the
Service consider buying all non-Federal
mineral rights to ensure complete
protection of refuge resources and uses
from these activities.
Service Response: The Service has
determined that acquisition of all
mineral rights in refuges is financially
infeasible and unnecessary to protect
refuge resources and uses. While the
Service did not undertake a costly and
time-intensive evaluation of the fair
market value of the non-Federal oil and
gas rights within the NWRS, in the EIS
associated with this rulemaking we did
consider full acquisition of such oil and
gas rights, but this alternative was
dismissed from further consideration
because it was financially infeasible and
unnecessary. Relying on our general
knowledge of what acquiring a mineral
right can cost in areas where there is
potential for oil and gas development,

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we conclude that it would be too costly
for the Service to acquire all mineral
rights that exist within the NWRS.
Additionally, the Service concludes
that it can sufficiently protect refuge
resources and uses as required by the
NWRSAA and provide access to
operators for developing their nonFederal oil and gas rights under this
rule, and so acquisition of all mineral
rights is unnecessary. Under the rule,
the Service will determine on a case-bycase basis, and in collaboration with
prospective operators, whether a
proposed operation meets the operating
standards and approval standards
contained in this rule. If the proposed
operation cannot meet Service standards
for protecting refuge resources and uses,
the Service has general statutory
authority to acquire the mineral right
from a willing seller in those instances.

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Rule’s Function With State and Federal
Regulations
3. Comment: Several comments stated
that State regulations fully accomplish
all the necessary protections of NWRS
resources and uses, and, therefore, the
proposed rule is duplicative and
unnecessary. Commenters contended
that many of the operational restrictions
of the proposed rule were duplicative or
in conflict with State regulations,
although no specific examples were
provided. The Service also received
comments that supported the Service’s
analysis that State regulations are not
uniformly designed or intended to fully
protect the surface owner’s interests or,
as in this case, mandates of the Service
to protect NWRS resources and uses.
Service Response: While developing
the proposed rule, the Service reviewed
the oil and gas regulations of 43 States.
Because of the differences between the
objectives of State regulation and the
rule, we found that State regulations do
not fully address necessary protections
for the conservation of fish and wildlife
resources and public use on refuges.
The Service’s legal mandate is to
conserve fish, wildlife, and plant
resources and their habitats for the
benefit of present and future
generations. In contrast, State oil and
gas regulations typically focus on the
protection of mineral rights and
conservation of oil and gas resources
(i.e., minimizing waste). States do
provide for protection of surface and
groundwater via well design
requirements, setbacks, and oil
pollution control measures. However,
State programs vary in these areas, and
also in regard to protection of many
other surface resources and surface use
conflicts.

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Most States are consistent in deferring
to landowners and operators to work out
many of the details of surface uses, and
formal surface use agreements between
landowner and operator are common. In
some States, like Oklahoma and New
Mexico, oil and gas companies are
required by statute to enter into these
agreements before production begins. A
surface use agreement may direct the
specific locations of access routes,
drilling sites, and flowlines that are
placed on the property. Timing
considerations may be critical for
protections of wildlife that may be
present only seasonally. The final
regulations provide a consistent set of
procedures and operational standards
which when incorporated into an
operations permit are the functional
equivalent of a ‘‘surface use agreement’’
between the Service and operator.
Furthermore, the Service has carefully
designed this rule to work in concert
with the State oil and gas regulatory
processes. The Service has analyzed
which aspects of State oil and gas
regulatory regimes are generally
sufficient for protecting refuge resources
and uses and which are not, and have
sought to regulate in this rule only those
activities where State regulatory regimes
are not generally sufficient. Our analysis
found the preponderance of impacts to
refuge resources and uses associated
with oil and gas activities emanate from
surface uses, not the downhole aspects
of an operation. Our analysis also found
that there is a possibility of impacts to
groundwater from downhole operations,
so the rule provides the Service with the
ability to go further than State
regulations when necessary to protect
groundwater.
Accordingly, the rule does not
regulate most downhole activities
related to an operation, including well
construction and blowout prevention.
The regulation does include a downhole
operating standard to prevent the escape
of fluids to the surface and for isolation
and protection of usable water zones
throughout the life of a well. Otherwise,
the Service finds that State regulations
are sufficient to ensuring that downhole
operations are protective of refuge
resources and uses, as well as public
safety. As this example shows, the
Service regulations avoid unnecessary
procedural and operational duplication
with State programs, and reflect the
Service’s intention to work
cooperatively with States and operators
to achieve common objectives.
4. Comment: Additionally, the Service
received comments that recommended
the Service not rely on State regulations
to protect refuge resources and uses
from the impacts associated with pre-

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existing operations, believing that the
Service has been somewhat
contradictory in its analysis that State
regulations are not sufficient, but then
relying on State regulations to protect
refuge resources and uses from preexisting operations in the proposed rule.
Service Response: The Service has
considered these comments and would
like to clarify its prior explanation why
relying on existing Federal and State
regulatory regimes is sufficiently
protective. As required by Executive
Order (E.O.) 12866, the Service analyzed
the costs and benefits of each regulatory
requirement being considered. This
analysis found that new operations
create the greatest additional impacts on
refuges and that proper site planning,
timing restrictions, and best
management practices (BMPs) through a
permit system accomplish the greatest
improvement in resource protection.
The permit process focuses on the full
suite of time, place, and manner
considerations on those new operations
that create the highest level of
incremental impacts. By applying a
reclamation standard for all operations
on refuges, including pre-existing
operations, the rule also ensures longterm rehabilitation of habitat damaged
by all operations.
While applying the full regulatory
requirements to pre-existing operations
may provide some incremental
protection for refuge resources and uses,
it would not retroactively eliminate a
majority of the impacts to refuge
resources and uses that have already
taken place as a result of pre-existing
operations. For example, pre-existing
wells have already been drilled, the area
of operations (access route, well site,
production facilities, and routes for
gathering lines) established, and
impacts to refuge resources, such as to
geology and soils, wetlands, and
wildlife-dependent recreation, have all
occurred prior to this rule being
effective.
In terms of ongoing impacts from
production, our analysis indicates that
an operator’s compliance with State
laws will serve to improve protection of
refuge resources and uses from ongoing
impacts from these operations, in areas
such as removal of waste, storage of
chemicals, and leak and spill
prevention. Where individual States’
regulations do not specifically address
an issue, the Service will continue to
work cooperatively with operators to
reduce impacts, or risks of impacts, to
refuge resources and uses. This
approach enables managers to focus
limited resources on those operations
with the greatest possible impacts to
refuge resources and uses rather than an

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indiscriminate administration of
permits for the approximately 4,000 preexisting operations. A general permit
requirement would necessitate the
Service to roughly double its oil and gas
management resources from current
levels, while the administrative costs to
operators of pre-existing wells would be
approximated to be initially $1,800 per
well annually. Our analysis indicates
these costs, in general, would be
inefficiently applied and
disproportionately high in general
relative to the benefits to refuge
resources and uses.
Scope: Inholdings
5. Comment: The Service received
comments both expressing a lack of
authority for the Service in regulating
inholdings as well as comments
asserting that the Service has both the
authority and the responsibility to
regulate operations on private lands,
including inholdings, under the
Property Clause and the NWRSIA,
which commenters contend granted the
Service the authority to regulate outside
the boundaries of the Refuge to the
extent that such activities interfere with
the designated purpose of Federal lands
(citing Minnesota v. Block, 660 F.2d
1240, 1249 (8th Cir.1981)). Some
commenters also noted that the Service
has taken a different approach from the
NPS and suggested the Service adopt
the NPS approach to inholdings.
Service Response: The Service has
carefully considered these comments;
however, the Service has concluded that
no change should be made in the rule,
which appropriately balances refuge
protection, private property rights, and
feasibility of administration. As
discussed in the Final EIS, there are
some potential cross-boundary impacts
from oil and gas development on refuge
resources and uses, such as spills or
leaks migrating into refuge lands or
waters or noise disturbance on wildlife
and visitor experience. The Service has
always worked, and will continue to
work, with operators on inholdings and
adjacent lands to mitigate or avoid any
potential cross-boundary impacts,
particularly those that may impact
species protected under the Endangered
Species Act. For instance if an operator
were proposing to site an operation
close to a refuge boundary, we might ask
them to set the operation back, ensure
they have proper spill or leak protection
methods, and site the operation away
from any waterways that flow into a
refuge. Furthermore, even when
exempted from these regulations,
operators do not have a right to cause
unreasonable damage to refuge
resources and uses and are responsible

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for any damage done from their
operations (e.g., leaks or spills). Existing
Federal and/or State laws provide
enforcement remedies for activities on
non-Federal lands that damage Refuge
resources and uses. Additionally, by not
imposing regulations on inholdings or
non-Federal adjacent lands, the Service
is incentivizing operators to locate such
operations off refuges.
As to the differences between the
proposed revisions to the NPS 9B
regulations (80 FR 65572; October 26,
2015) and this rule, an operator working
on both NWRS and NPS lands will
experience little difference in regulatory
resource and use protections, regulatory
structure based on performance
standards, operations permit processes
and requirements, monitoring and
compliance, and other terms and
conditions. However, there are some
variations between the two proposed
rules necessitated by differing
authorities and missions and the scope
and resources of the two agencies’ nonFederal oil and gas programs. The
existing and future potential for
operations on inholdings within the
NPS is much smaller than that of the
NWRS, and, therefore, the
administrative burden is more
manageable for NPS’s oil and gas
program to regulate activities on
inholdings to the extent necessary to
protect park resources and uses.
In designing this rule, the Service has
carefully considered the environmental
benefits of these regulations in light of
the Service’s mission and limited
resources and has chosen to prioritize
regulation of activities on Service lands.
As noted above, the Service defines the
National Wildlife Refuge System to
consist of all lands, waters, and interests
therein that it administers (25 CFR
25.12) and does not apply its regulations
to the non-Federal lands found within
refuge boundaries (i.e., inholdings).
Furthermore, the Service has concluded
that it can manage the cross-boundary
impacts from inholdings and nonFederal adjacent lands through
cooperation with operators instead of
through direct regulation, which places
a heavy administrative burden on the
Service and operators.
Scope: Operations on Non-Federal Land
6. Comment: The Service received
similar comments regarding directional
drilling operations on non-Federal land
as it did for inholdings, recommending
that the Service extend regulations
beyond the NWRS to operations on
private lands as described in the
Modified Proposed Rule alternative of
the DEIS. We also received comments
from others that the Service has no

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authority to do so. Some commenters
also noted that the Service has taken a
different approach from the NPS and
suggested the Service adopt the NPS
approach to directional drilling
operations.
Service Response: The Service has
considered these comments; however,
we have not extended the rule to
operations on inholdings and nonFederal adjacent lands from which there
is directional drilling under Serviceadministered surface estate. The Service
has a clear legal and policy directive to
protect refuge lands and resources, and
having oil and gas operations sited off
refuge property is preferable to having
impacts occur on refuge lands. Our
analysis shows avoiding the cost and
time delay of Service regulation
provides an incentive for operators to
drill from a non-Federal surface location
to reach their oil and gas rights within
a refuge. Exempting downhole
operations that occur inside a refuge
from these regulations will result in
fewer wells drilled on refugeadministered lands and waters resulting
in an overall benefit to refuge resources
and uses (avoidance or minimization of
direct impacts).
If the Service extended its regulation
beyond the NWRS as evaluated in
Alternative C of the EIS, the Service
could require actions, such as noise
abatement or visual screening, which
serve to reduce cross-boundary effects
on Service resources and uses. However,
these benefits to resources and uses
could evaporate, and many adverse
consequences could occur, if just a
small percentage of wells that otherwise
would have been located outside a
refuge are drilled in a refuge. Gains in
resource protection under Alternative C
would likely be lost due to loss of the
incentive to locate operations outside
the refuge. Locating all operations
(surface and downhole) inside the
boundary of a refuge would subject
refuge resources and values to the longterm impacts of surface occupancy
within the park—impacts that would
last years, if not decades. Therefore, the
Service concludes the best course of
action is to maintain the incentive in the
proposed rule to encourage operators to
locate operations outside a refuge.
The Service will continue to work
with operators, landowners, and other
permitting agencies to address issues
that may arise from operations on nonFederal adjacent lands. For example, the
Service could advocate for setbacks
from the refuge boundary or waterways
and strong spill control and response
measures to reduce the risk of damage
to refuge resources from accidents. As
mentioned above, even where exempt

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from these regulations, operators do not
have a right to cause unreasonable
damage to refuge resources and uses and
are responsible for any damage done
from these operations (e.g., leaks or
spills).
Additionally, based on the comments
the Service received, it appears that
some commenters misunderstood the
NPS rule as related to operations on
non-Federal lands outside the park
boundary from which there is
directional drilling underneath a park
unit. NPS’s regulatory authority over
directional drilling operations begins at
the subsurface point where the
proposed operations (borehole) cross the
park boundary and enter federally
owned or administered lands or water,
and applies to all infrastructure and
activities within a park unit.
Additionally the NPS provides an
exemption to the operations permit
requirement for these in-park operations
if it determines they ‘‘pose no
significant threat of damage to park
resources.’’ In the many decades that the
NPS has had this exemption in place, it
has not made a single finding that such
operations pose a significant threat. In
only a few instances has NPS included
in its determination suggestions to the
operator to modify its planned
operations in any way.
The Service has concluded that the
risk of any impacts to refuge resources
by the Service not regulating the portion
of a wellbore beneath a refuge is
exceedingly low. The Service has
carefully designed this rule to ensure
that it is prioritizing its limited
resources on those oil and gas activities
that have the greatest impact to refuge
resources and uses. Commenters from
both industry and non-governmental
organizations have asked the Service to
ensure it has the resources to effectively
implement this rule. The Service has
carefully analyzed its resources and
capabilities and has specifically tailored
this rule to ensure maximum refuge
protection within the constraints of its
management capabilities. The Service
agrees with commenters that it must
ensure that it has sufficient resources to
implement the rule in order for it to be
successful. Balancing the low risk of
impacts from the downhole aspects of
these directional-drilling operations on
refuge resources and uses with the high
administrative costs of regulating all of
these operations, the Service has
exempted these operations in the rule.
Hydraulic Fracturing and Regulation of
Downhole Activities
7. Comment: Several commenters
requested that the Service ban hydraulic
fracturing completely from the NWRS.

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Service Response: The Service
considered these comments, as well as
other information and studies provided
by commenters regarding hydraulic
fracturing, and we have concluded that
the additional information provided did
not justify a change from the proposed
rule’s approach to hydraulic fracturing.
Comments requesting the ban on
hydraulic fracturing used the term to
encompass all the activities and impacts
that are associated with oil and gas
development that happens to use
hydraulic fracturing. These comments
did not provide new information to the
Service.
The information provided by
commenters was available and
considered by the Service in developing
the proposed rule. The Service has
determined that the actual process of
hydraulic fracturing does not create
impacts or risks of impacts that are so
elevated above those of conventional oil
and gas operations in general that a
hydraulic fracturing ban is justified. It is
the Service’s policy that ‘‘scientific and
scholarly information that we consider
in our decision-making must be robust,
of the highest quality, and the result of
the most rigorous scientific and
scholarly processes as can be achieved’’
(212 FW 7).
As the Service has noted in the EIS
accompanying the rule, studies show
that oil and gas operations that include
hydraulic fracturing stimulation
methods can negatively affect
surrounding resources and the
environment and can increase the risks
of such impacts where appropriate
measures are not taken before, during,
and after hydraulic fracturing operations
(e.g., improper cementing of casing and
well integrity issues or surface
mismanagement of fracking and
flowback fluids). However, studies also
show that proper implementation of
such measures can substantially
reduce—to a level close to that of
conventional well operations—the risks
to the surrounding environment from
hydraulic fracturing operations.
Based on the Service’s review of
studies provided during the public
comment period, we do not find that a
ban on hydraulic fracturing completion
methods in refuges is necessary or
appropriate at this time. The Service
will continue to revisit and update its
policy as more information on hydraulic
fracturing completion methods becomes
available. Further, the Service notes that
well completion programs using
hydraulic fracturing were not given
approval under the proposed rule. The
rule also does not give such approval,
and includes operating and approval
standards developed with the

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knowledge that hydraulic fracturing
operations will likely be proposed by
operators and were designed to ensure
that operators employ technologically
feasible least-damaging methods that
will not impact refuge resources and
uses. The Service will consider
hydraulic fracturing operations on a
case-by-case basis and analyze potential
impacts on refuge resources and uses
under the regulations’ approval
standards.
8. Comment: The Service was asked to
clarify how the rule would, or would
not, be impacted by BLM’s impending
fracking rule and associated litigation.
Service Response: As explained in the
proposed rule, we have taken different
approaches to regulating hydraulic
fracturing activities based on our
different statutory authorities and the
specific needs of the NWRS. The
Service has concluded that our rule is
consistent with our statutory authorities
and, therefore, should not be affected by
the pending litigation.
9. Comment: The Service received
several comments recommending that
the Service extend its regulations to
more comprehensively cover all aspects
of downhole operations, particularly
with regard to wellbore construction
standards for operations that include
use of hydraulic fracturing. Commenters
also requested that the Service require
baseline flowback requirements. On the
other hand, the Service received
comments that that Service regulation
will only duplicate existing State and
Federal requirements that fully address
these downhole issues.
Service Response: The Service
analyzed both the costs and benefits of
further regulating downhole operations
on the NWRS through this rulemaking
and found the increased costs necessary
to hire and maintain engineering staff to
oversee our own separate downhole
requirements and standards would not
likely provide a comparable benefit in
reduction of impacts or risks of impacts
to surface resources. The Service
reviewed and considered the comments
and studies provided by the public on
this issue, but found they did not
change the Service’s analysis of the
benefits. On the other hand, the Service
did identify additional costs for both the
Service and industry if the Service were
to regulate downhole operations. The
Service would need additional
specialized technical staff to evaluate
proposals and subsequently monitor
and inspect downhole operations for
compliance. Industry costs would
involve providing downhole well
construction information such as
drilling, mud, casing, cementing, and
stimulation programs. This information

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is developed as a matter of course by
industry, so there would be some
minimal costs to provide copies of these
programs.
Recognizing the public concern
regarding impact to water resources
from these activities and the Service’s
responsibility to ensure that it protects
these resources, the rule does include
standards for well control and isolation
and protection of usable water
(§ 29.119(a)(3) and (4)). The standard
serves to inform the public and the
operators that the Service retains
regulatory control for management and
protection of all its resources including
groundwater. However, as discussed
above, the Service would have to
substantially augment its engineering
capacity to review, approve, and
monitor downhole well construction.
Comprehensive Service regulation of
downhole wellbore construction and
maintenance for the isolation and
protection of usable water would
duplicate state programs in many areas,
and thus provide a diminished return in
terms of reduction of risks to
groundwater. Additionally, the rule
includes provisions (information
requirements, operating standards, and
reporting requirements) that address the
management of wastes including
flowback fluids. Under the rule, all new
hydraulic fracturing operations will be
conducted under new operations
permits or modifications to existing
Service-approved permits. Thus, new
operations under the rule are required to
provide for management of flowback
fluids, including tanks to capture and
temporarily store flowback fluids, no
use of earthen pits, and prompt removal
of wastes from the refuge.
Easements
10. Comment: Some commenters
requested clarity on the applicability of
these regulations to easements.
Service Response: The definition of
the National Wildlife Refuge System
includes less than fee interests in land
such as easements (50 CFR 25.12).
Therefore, the exercise of non-federally
owned oil and gas rights underneath the
Service’s easement estate are subject to
these regulations to the extent necessary
to protect the interests held by the
United States under the easement (see
§ 29.40(b)). The Service holds many
unique and varied easement interests
throughout the United States. For this
reason, it is difficult to generalize how
the rule applies to any particular
easement. To determine the
applicability of these regulations, the
Service will review the terms of the
legal instrument by which the United
States acquired or reserved its easement

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interest to determine what regulation is
appropriate in relation to that interest.
Oil and gas operations will be subject to
some and not necessarily all, of the
requirements and standards of this
subpart. Depending on the easement
interest acquired, the Service may
require an operator to obtain a permit
from the Service to ensure that
operations minimize the destruction of
vegetative cover, control spread of
invasive species, and/or avoid
ecologically sensitive habitats by using
technologically feasible, least-damaging
methods. On the other hand, if an
operator avoids burning, draining,
filling, or dredging wetlands on one of
the Service’s conservation easements
acquired for the purpose of protecting
wetlands, the operator is likely exempt
from these regulations.
Ultimately, the Service wants to
ensure it is notified of operations that
may affect the Service’s less-than-fee
interests and work cooperatively with
the landholder and mineral rights
holder, if different, to minimize or avoid
impacts to our conservation interest in
the land. However, the Service will
continue to provide reasonable access to
mineral rights holders for the
development of their mineral rights, as
we do on fee-title lands of the NWRS.
The Service will work with operators
and landowners in determining what is
reasonable to protecting the Service’s
property interests under the easement.
Oil and Gas Operations in Alaska
11. Comment: The Service received
several comments on how the proposed
rule would affect oil and gas operations
on refuges in Alaska and asking for
clarification from the Service on how
the rule would work in conjunction
with the Alaska National Interest Lands
Conservation Act (94 Stat. 2371; Pub. L.
96–487) and implementing regulations
(43 CFR part 36). The Service got several
comments recommending that the
Service should clarify and revise the
rule to fully recognize the controlling
role of ANILCA and its implementing
regulations in Alaska, and to address
other issues. For instance, the Service
received a comment to specifically
replace the multiple references to
ANILCA with the following blanket
provision stating that ANILCA and
implementing regulations at 43 CFR part
36 govern access, including but not
limited to access to inholdings in
Alaska, in lieu of the provisions of the
non-Federal oil and gas regulations in
subpart D: ‘‘In lieu of the provisions of
this subpart, authorization and
management of access in Alaska,
including but not limited to access to
inholdings, shall be governed by the

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applicable provisions in 43 CFR part
36.’’ Additionally, it was recommended
that the final regulations should clarify
that the only operations permit that
would be required with regard to access
across the NWRS associated with oil
and gas development activities on
private inholdings in Alaska would be
a right-of-way issued pursuant to title XI
of ANILCA and the regulations at 43
CFR part 36.
Service Response: We agree with the
many comments we received that our
rule was unclear about how this rule
applies to operations in Alaska. After
careful consideration of comments
received on this issue, the Service has
concluded that the rule does not need
to include operations in refuges in
Alaska as the existing Departmental
regulations implementing section
1110(a) of ANILCA, access to
inholdings, provide sufficient protection
of refuge resources and use. The Service
has revised § 29.41 ‘‘When does this
subpart apply to me?’’ to clarify that the
rule does not apply to operators in
Alaska. In addition to this revision, the
Service has removed any reference to
ANILCA in other provisions of this rule.
The specific references in various parts
of the proposed rule were more
confusing than helpful.
Refuges in Alaska will continue to be
governed by title XI of the Alaska
National Interest Lands Conservation
Act (ANILCA; 16 U.S.C. 410hh–410hh–
5, 16 U.S.C. 3101 et seq., 43 U.S.C. 1601
et seq.), and the Department’s
implementing regulations and standards
found at 43 CFR part 36. Additionally,
section 22(g) of the Alaska Native
Claims Settlement Act of 1971 (ANCSA)
(43 U.S.C. 1601–1624) and its
implementing regulations found at 50
CFR 25.21 will continue to apply to
lands conveyed to Alaska Native
Corporations that are within the
boundaries of a National Wildlife
Refuge in existence on the date of
enactment of ANCSA. However, the
performance-based standards outlined
in this rule may be used, as appropriate,
as guidance in determining how an
operator would meet the various
requirements of ANILCA and ANCSA to
protect refuge resources and uses.
ANILCA provides the Service with the
authority to ensure that operators
accessing non-Federal mineral rights
underneath refuges in Alaska must work
cooperatively with the Service through
a permitting process outlined in section
1110 and 43 CFR part 36 to avoid or
minimize impacts from these operations
to refuge resources and uses. For
example, under the ANILCA
regulations, the Service may require an
operator to: Obtain a permit for

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operations on federally owned surface
estate; provide the Service with
financial assurance; restrict the time,
place, and manner of activities as
necessary to protect refuge resources
and uses; and ensure the operation is
properly plugged and reclaimed after
production operations are complete.
12. Comment: The Service also
received comments asking to further
clarify that this rule would not be used
to regulate activities conducted on
Alaska Native Corporation (ANC)owned or other non-Federal lands in
Alaska.
Service Response: The scope of this
rule is limited to activities on Federal
lands within the National Wildlife
Refuge System. In the case of refuges in
Alaska, it does not apply to inholdings
or non-Federal adjacent lands.
Commenters generally seemed to be
clear about the scope of this rule on this
point, and, therefore, the Service
concludes it does not need to clarify this
further in the final rule. As discussed
above, access through refuges to ANCowned or other non-Federal lands in
Alaska will continue to be governed by
ANILCA, ANCSA, and their
implementing regulations.
13. Comment: The Service also
received comments recommending that
the Service clarify further how the
operations standards outlined in the
proposed rule would apply to
operations under an ANILCA permit.
Based on concern about how some of
the standards would further limit
landowners’ ability to specify route or
method of access and, therefore,
diminish their rights to adequate and
feasible access to inholdings as
authorized under ANILCA, these
commenters asked that the Service not
apply these operation standards to
operations in Alaska. On the other hand,
the Service also received comments
asking that the final rule avoid citing
specific sections of the operating
standards that may apply to operations
under an ANILCA permit, because
doing so would raise doubts about the
application of the rest of the rule to
these operations (see 80 FR 77206;
December 11, 2015).
Service Response: As discussed
above, this rule does not apply to oil
and gas operations in Alaska. However,
the Service has developed these
operating standards through a thorough
analysis of what is needed to properly
protect refuge resources and uses.
Therefore, to the extent consistent with
these existing ANCSA and ANILCA
regulations, the Service may use these
standards as guidance in approving
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Alaska. The standards that will be
applicable will be determined on a caseby-case basis and will only be used if
consistent with the standards outlined
in ANILCA and its implementing
regulations.
14. Comment: Other commenters
recommended that the Service apply the
rule more comprehensively to
operations in Alaska, believing that
ANILCA is not sufficient at protecting
NWRS resources and uses from impacts
of oil and gas operations.
Service Response: The Service has
concluded that ANILCA provides
sufficient regulation of oil and gas
operations in Alaska where the Service
has been able to effectively work with
operators to minimize or avoid impacts
to refuge resources and uses while
providing operators access to their
minerals under the existing regulations.
As discussed above, implementation of
the existing ANILCA regulations
provides stringent protection of refuge
resources and uses and provides the
Service the appropriate tools for
regulating non-Federal oil and gas
operations on refuge-administered
surface estate. As one commenter
suggested, if the Service does, in the
future, decide we need different tools to
effectively manage oil and gas resources
in Alaska, we can propose revisions to
the ANILCA implementing regulations.
15. Comment: The Service received a
comment highlighting the fact that the
statutory authority and obligation to
review and approve geological and
geophysical exploration plans per
section 1002 of ANILCA (16 U.S.C.
3142) (and associated regulations at 50
CFR part 37) has expired (see
Memorandum Decision and Order, U.S.
District Court for the District of Alaska
(State of Alaska v. Jewell, et al. Case No.
3:14-cv–00048–SLG)), and
recommending that the final rule should
clarify that the Service cannot accept
further applications for geological or
geophysical exploration for oil and gas
in the coastal plain of the Arctic Refuge.
The comment also recommended that
the final rule should also explicitly
mention prohibitions on oil and gas
leasing, development, and production in
the Arctic National Wildlife Refuge (16
U.S.C. 3143).
Service Response: The Service agrees
that we cannot accept any further
application for geological or geophysical
exploration in the coastal plain of the
Arctic National Wildlife Refuge and that
oil and gas leasing is prohibited in the
refuge for the reasons stated in the
comment; however, the recommended
revisions are not necessary in the final
rule because they are outside the scope
of this rulemaking.

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Existing Production Operations Under a
Service Permit
16. Comment: The Service received
comments that the proposed rule was
unclear as to which provisions of this
subpart applied to existing operators
under a Service-issued permit.
Service Response: The Service agrees
with the commenter that the proposed
rule was not clear as to which
provisions of the rule applied to existing
operators with a Service-issued permit.
For operations being conducted under
§ 29.43, all administrative or operational
requirements that are specific to
obtaining or operating under an
operations permit issued under this
subpart do not apply. The operator with
an existing permit may continue to
operate under the terms and conditions
of that Service-issued permit, unless the
operator proposes to modify its
operations or propose new operations
not covered by the existing Serviceissued permit, such as plugging and
reclamation. If an operator wishes to
modify their operations or proposes new
operations outside the scope of their
existing Service-issued permit, the
permit will need to be amended such
that any modification or new operation
meets applicable operating standards of
the rule. We have revised § 29.43
accordingly.
17. Comment: Several commenters
recommended that operators conducting
production operations under a currently
approved special use permit should be
required to obtain a new permit under
the proposed rule, as the Service
considered in Alternative C of the DEIS,
to ensure that they are following certain
performance-based standards regarding
waste management and disposal, leaks,
spills, and pits.
Service Response: The Service has
been very successful at working with
operators through these Special Use
Permits (SUP) to ensure that impacts to
refuge resources and uses are avoided
and minimized. As explained above, the
Service has concluded that a new
permit requirement for these existing
operations would bring little to no
beneficial impacts to refuge resources
and uses, and would impose an
unnecessary administrative burden on
the Service and operators by requiring a
new permit to replace the existing
permit. In issuing permits to existing
operators, the Service considered and
included many provisions to protect
refuge resources and uses, such as waste
management and disposal, spill
prevention, and spill response. Some
SUPs have authorized the creation of
reserve pits, while others have
prohibited them. Such inconsistency in

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the future has been addressed and
eliminated by this rule. The Service has
decided that requiring these operators to
get a new permit is not reasonable or
appropriate, considering that these
operators have been cooperative in
working with the Service to protect
refuge resources and uses and have
reasonable expectations from their work
with us that the operations permitted by
the Service in their SUP are sufficient.
However, as discussed above, any
modifications to their operations or
proposals for new operations not
covered by the original permit are
subject to all applicable requirements of
part 29.
Also, the Service has further clarified
in § 29.43, as discussed above, that an
existing operator must comply with the
Service’s plugging provisions at
§§ 29.180 and 29.181. Some commenters
stated there should be a clear
requirement for operators with an
approved SUP to provide financial
assurance prior to proceeding with
plugging and reclamation. The Service’s
intent under § 29.43 is to allow
operators who have cooperated with the
Service in conducting activities under a
Service-issued permit to continue under
the terms and conditions that have been
agreed upon. While financial assurance
would provide the benefit of ensuring
the public does not become responsible
for plugging and reclamation costs
should an operator default or abandon
their operation, based on the knowledge
and experiences of current and past
refuge managers engaged in oil and gas
oversight, we were not able to identify
any well becoming orphaned by an
operator within the past 20 years.
Therefore, the Service declines to add a
financial assurance provision at great
cost to these operators with little benefit
to refuge resources and uses. However,
if an operator’s original permit did not
include authorization to conduct
plugging and reclamation, the operator
would be required to amend their
Service-issued permit or obtain a new
operations permit, either of which
requires compliance with the plugging
and reclamation provisions of this rule,
including providing financial assurance.
Pre-Existing Operations
18. Comment: The Service received
several comments suggesting the Service
clarify how pre-existing operations
would be subject to provisions of the
rule absent a new permit requirement.
One commenter expressed concern that
the proposed rule did not include a
mechanism for ensuring pre-existing
operations are following the
requirements of the rule. Additionally,
commenters wanted more clarity as to

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what general terms and conditions
apply to pre-existing operations.
Service Response: The Service agrees
that the rule should further clarify
which provisions of the subpart would
apply to these classes of operations. For
operations being conducted under
§ 29.44, all administrative or operational
requirements that are specific to
obtaining or operating under an
operations permit issued under this
subpart do not apply unless the operator
chooses to obtain a new operations
permit instead of amending their
existing permits under the terms and
conditions of that permit. We have
made this clarification in the rule at
§ 29.44. Additionally, we agree the
language needs to be clearer as to the
plugging and reclamation
responsibilities of a pre-existing
operator. After production operations
have been completed, a pre-existing
operator must obtain an Operations
Permit from the Service, either to
maintain the well in shut-in status or to
plug and reclaim operations in
compliance with this subpart. The
Service has made this clarification in
§ 29.63. Finally, the Service has made
specific revisions to the rule at § 29.64
that identify the specific ‘‘General
Terms and Conditions’’ applicable to
pre-existing operations.
The Service has concluded it does not
need to impose a permit requirement on
pre-existing operators in order to notify
them of the applicable requirements of
the rule or to ensure they are in
compliance with its requirements. The
Service has a duty to ensure that all preexisting and existing operators are
notified of the requirements of the rule.
The Service is working on guidance
documents for all classes of operators,
including pre-existing operators.
Additionally, the Service has already
developed relationships with many of
the pre-existing operators. The Service
will be in contact with operators to
ensure they are informed about the
requirements of the rule.
19. Comment: Some commenters
agree with the Service’s proposed
approach not to require operations
permits for pre-existing operations
during the production phase. Other
commenters believe that pre-existing
operations should be subject to the same
requirements as new operations under
the rule (as the Service considered in
Alternative C of the DEIS), specifically
requiring a new permit for pre-existing
operators that would ensure that they
are following the applicable
performance-based standards of the
proposed rule, including waste
management and disposal, spill
prevention and response, and the

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general prohibition on the use of pits,
for example; and/or obtaining financial
assurance for the full cost of plugging
and reclamation during the production
phase.
Service Response: After weighing the
comments on both sides of the issue, the
Service has decided to continue the
approach outlined in the proposed rule
that a pre-existing operator not be
required to get a permit or post financial
assurance during the production phase
of its operation. In the cost-benefit
analysis and environmental impact
statement, the Service evaluated the
range of alternatives related to the
management of pre-existing operations
from no additional regulatory oversight
to full regulatory oversight. The Service
did identify unnecessary impacts to
refuge resources and uses related to the
ongoing production phase of preexisting operations, but also recognized
the potential to apply a different, more
efficient approach to address many of
the refuge resource and use issues for
this class of operation.
The primary issue with pre-existing
operations, as identified by refuge
managers, is that reclamation has not
been typically or consistently performed
in a way that restores disturbed areas to
productive habitat. This issue is
addressed by the rule. First, in
accordance with § 29.63 (which has
been revised to clarify), after production
operations have been completed, a preexisting operator must obtain an
Operations Permit from the Service,
either to maintain the well in shut-in
status or to plug and reclaim operations
in compliance with this subpart,
including the requirement that an
operator obtain financial assurance at
this time. Second, a pre-existing
operator is subject to the reclamation
standards of § 29.117(d), which provides
for removing all above-ground
structures, equipment, roads, well pads,
and contaminating substances,
reestablishing native vegetation,
restoring conditions to pre-disturbance
hydrologic functions, and restoring
disturbed areas to productive habitat.
Our analysis found that the Service
could eliminate many of the ongoing,
unnecessary impacts to refuge resources
and uses resulting from the production
phase of pre-existing operations by
making violation of non-conflicting
State laws and regulations relating to oil
and gas operations a prohibited act in
the rule. Though not required to obtain
a Service operations permit during
production, the Service would have
greater authority to ensure these
operations are in compliance with
applicable laws because Refuge Law
Enforcement would be able to enforce

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State law on the NWRS. Any violation
of State laws on the NWRS would
constitute a violation of the law under
the rule, and all applicable penalties
and prohibitions would apply.
State laws usually address ongoing
impacts from these pre-existing
operations, such as waste disposal and
prevention and cleanup of leaks and
spills. Where an individual State’s
regulations do not specifically address
an issue, the Service would continue to
work cooperatively with State agencies
and operators to reduce impacts or risks
to refuge resources and uses. For
example, in an assessment of State
regulations conducted by the Ground
Water Protection Council (GWPC) for
the U.S. Department of Energy (DOE),
the GWPC found that 23 of 27 oilproducing States assessed required oil
production site storage tanks to have
secondary containment dikes to contain
leaks and spills (GWPC 2014).
Additionally, the GWPC (2014) reported
that 23 of the 27 States require reporting
and remediation of spills and 13 of the
27 States specify cleanup standards for
spills. Some States also have siting or
setback requirements for pits
(production skim pits and reserve pits)
with some States prohibiting the use of
pits in 100-year floodplains or in areas
with shallow aquifers (GWPC 2014). An
operator’s compliance with these types
of laws and the Service’s ability to assist
in the enforcement of these laws would
provide additional protection to refuge
resources and uses.
While full regulation of pre-existing
operations during their production
phase would provide some additional
protection to refuge resources and uses,
it would not be able to remedy a
majority of the impacts to refuge
resources and uses caused when the
operators chose the time, place, and
manner of these pre-existing operations.
For example, on existing operations, the
operator’s well has already been drilled
and the area of operations (access route,
well site, production facilities, and
routes for gathering lines) were
established, and impacts to refuge
resources, such as geology and soils,
wetlands, and wildlife-dependent
recreation, occurred prior to the
acquisition of a refuge. The Service
could require actions not addressed by
applicable State rules—site maintenance
for erosion control, vegetation
management, noise abatement,
housekeeping, for examples—by
imposing a permit requirement and
undergoing the associated
administrative processes and costs. Our
analysis estimated that approximately
4,000 wells operated by perhaps 400
different operators would fall under the

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operations permit requirement. Many
wells could be grouped under a single
operations permit by an operator, but
the volume of operations permit
applications required would likely
exceed 1,000. The Service would need
to roughly double its oil and gas
management resources from current
levels, while the administrative costs to
operators of pre-existing wells is
estimated to be approximately $1,800
per well.
Based on our analysis, we determined
enforcing a pre-existing operator’s
compliance with State laws and
regulations best meets the purposes and
needs of revising the existing rule and
will provide the maximum protection of
refuge resources when balanced with
the cost to operators and to the Service
for administration. This approach
enables managers to focus limited
resources on those operations with the
greatest possible impacts to refuge
resources and uses rather than an
indiscriminate administration of
permits for the approximately 4,000 preexisting operations. Comments from the
public have not provided us with
substantial new information that would
change our analysis or conclusion.
20. Comment: The Service received a
comment requesting that we revise the
definition of ‘‘modification,’’ so that a
pre-existing operation must obtain a
permit when they transfer operators.
Service Response: After considering
this comment, the Service agrees that a
change in operator should trigger the
requirement that the new operator
obtain an Operations Permit from the
Service. However, revising the
definition of modification is not the best
way to accomplish this objective.
Instead, the Service has revised the rule
language to replace ‘‘operation’’ with
‘‘operator’’ in § 29.44 to clarify that the
exempt status follows an operator not an
operation. Also, in § 29.171, we have
included language that would allow an
operator to continue operations for 90
days while the operator files the permit
application and posts bond to ensure
continuity of new operations. The new
operator would need to obtain an
Operations Permit that meets operating
standards and general terms and
conditions of the rule, including posting
of financial assurance. The Service will
not require a change in the time or place
of these operations, but rather will
ensure that any ongoing unnecessary
impacts from these operations are
avoided or minimized by requiring the
new operator to employ
‘‘technologically feasible, least
damaging methods’’ moving forward.
This change in what constitutes loss of
pre-existing status ensures that more

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operations on the NWRS will be
operating under Service standards
sooner, and provides greater protection
of refuge resources and uses from the
ongoing unnecessary impacts of preexisting operations.
21. Comment: We received comments
from the public requesting that the rule
require more than just basic information
from pre-existing operators on refuge
lands (e.g., mitigation, spill control,
emergency preparedness plans).
Commenters stated that the Service
should require other important
information necessary for the proper
management and conservation of refuge
resources from these pre-existing
operators. For instance, one comment
suggested that the Service’s requirement
in proposed § 29.61 for a scaled map
that delineates only an ‘‘area of
operation’’ may not be sufficiently
detailed to provide refuge managers
with baseline information to monitor
operations, changes in operations, and
violations, and that the Service should
require a scaled map, as well as detailed
schematics of existing wells and
infrastructure.
Service Response: After further
considering these comments, the
Service has concluded that some
additional, basic information from preexisting operators would enhance the
protection of refuge resources through
better documentation of the equipment,
materials, and operational practices
being used on location. Additional
operational information will also help to
establish an operator’s reclamation
responsibilities as well as a baseline for
determining whether future actions
constitute a modification as defined
under § 29.50. Therefore, the Service
has amended the rule at § 29.61 to
require pre-existing operators to also
submit to the Service: a brief description
of the current operations and any
anticipated changes to the current
operations, including documentation of
the current operating methods, surface
equipment, and materials produced or
used.
22. Comment: Some commenters
requested that the Service delete the
phrases ‘‘subject to the provisions of
this subpart’’ and ‘‘subject to applicable
requirements of this subpart’’ from
proposed §§ 29.43 and 29.44, believing
that subjecting pre-existing operations
and existing operations currently under
a Service permit retroactively was
inappropriate.
Service Response: In developing the
rule, the Service identified several key
objectives that needed to be addressed
in considering the extent to which to
regulate pre-existing operations and
operations already being conducted

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under Service authorization. These
objectives included that: (1) These
operations not create additional
unnecessary impacts on refuge
resources and uses; and (2) all
operations within refuges are eventually
plugged and reclaimed to Service
standards. Pre-existing operations and
existing operations are subject to
specific provisions of this rule that
ensure that these objectives are met and
that future activities of these operators
do not result in additional, unnecessary
impacts. Therefore, subjecting these
operations to these provisions is not
inappropriate, as the commenter
suggested, because the provisions are
not focused on retroactively regulating
past activities and impacts of these
operations (i.e., time, place, or manner
of operations) but rather on regulating
new or modified activities and impacts
of these operations.
Financial Assurance
23. Comment: Some commenters
expressed the desire that the Service go
beyond what was in the proposed rule
and periodically review reclamation
costs and corresponding requirements
for financial assurance, and update
these estimates as necessary to
accurately reflect the cost of reclamation
upon the decommission of the well.
Service Response: The concern that
financial assurance amounts will
become outdated and insufficient to
ensure reclamation was already
addressed in proposed § 29.152, which
we, therefore, have not revised. The
Service may require, or the operator
may request, an adjustment to the
financial assurance amount because of
any circumstance that increases or
decreases the estimated costs of
plugging and reclamation. Cost changes
due to inflation would be a
circumstance that would allow the
Service to require an adjustment in the
amount of financial assurance.
24. Comment: The Service also
received comments that requiring
financial assurance above and beyond
financial assurance already required by
the State is not necessary because the
State bonds are sufficient. Commenters
stated that this additional financial
assurance requirement was ‘‘unfair and
unreasonable,’’ and should only be done
on a case-by-case basis as necessary to
supplement bonds already lodged with
the State.
Service Response: The Service’s rule
does not rely on State bonds to ensure
timely well plugging and site
reclamation to Service standards for two
primary reasons: (1) Bonds furnished to
operators by the State are not usually
directly available to the Service to plug

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and reclaim that particular site; and (2)
State bonding programs do not typically
require well plugging and reclamation
to Service standards. State bond
amounts are generally insufficient in
themselves to cover the actual costs of
plugging and reclamation. However,
States administer well plugging funds
with money derived from sources other
than forfeited bonds, e.g., permitting
fees, taxes on production, or penalties.
Most States with regulations overseeing
oil and gas activities have developed
programs for plugging and reclaiming
orphaned wells, and, theoretically, the
State may have sufficient funds to plug
and reclaim orphaned wells on the
NWRS. However, many State programs
remain backlogged with a number of
orphaned wells that need to be plugged
or reclaimed.
Orphaned wells on Federally
managed lands do not usually rank as
top priorities on State lists for plugging.
(Office of Inspector General, Report No.
CR–EV–FWS–002–2014: Oil and Gas
Development on U.S. Fish and Wildlife
Service Refuges). So the bond that an
operator furnishes to the State is often
not available to ensure that wells are
plugged and areas of operation
reclaimed in the event of operator
default or abandonment of the
operation. Even where a State may
expeditiously address plugging of an
orphaned well on a refuge, State
plugging programs typically do not
require restoration of a site in a manner
that meets Service standards in the rule
(§ 29.117(d)). For these reasons, State
bonds are typically not sufficient to
ensure protection of refuge resources in
the event that an operator defaults or
abandons his or her operation.
However, in the event that a State and
the Service were in formal agreement
that State plugging funds would be used
to plug a well directly upon its
becoming orphaned as well as to
conduct site reclamation, the Service
would consider this to be a condition
under § 29.152 that would justify
reducing the financial assurance
required by the Service.
Modification of Operations and Permits
25. Comment: The Service received
several comments requesting clarity of
the proposed rule’s definition of
‘‘modification’’ (proposed § 29.50).
Some commenters wanted the Service to
clarify the definition to ensure it
includes certain changes. Specifically,
one commenter suggested the Service
amend the definition to read: ‘‘Examples
of a modification could include, but are
not limited to, drilling additional wells
from the same pad, conducting
hydraulic fracturing or other well

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stimulation activities, creating
additional surface disturbance
(expanding the footprint of a well pad,
realigning a road, constructing new
pipelines or gathering lines), or
converting a natural gas well into a
wastewater disposal well so that the
resulting modification has notable
impacts to the refuge resource.’’
Service Response: The Service agrees
that many of the examples listed by the
commenters require a pre-existing
operator to obtain a new permit or an
operator under an existing Serviceissued permit to obtain an amendment
to its permit, including drilling
additional wells from the same pad,
conducting hydraulic fracturing or other
well stimulation activities, creating
additional surface disturbance
(expanding the footprint of a well pad,
realigning a road, constructing new
pipelines or gathering lines), or
converting a natural gas well into a
wastewater disposal well, will also
likely be considered ‘‘modifying’’ an
operation. The Service had identified
several examples in the preamble of the
proposed rule, and examples of a
modification include drilling additional
wells from the same pad, creating
additional surface disturbance (e.g.,
expanding the footprint of a well pad,
realigning a road), or converting a
natural gas well into a wastewater
disposal well, as these modifications
will have impacts beyond the scope,
intensity, and/or duration of existing
impacts. This provision was not
intended to apply to minor actions, such
as repositioning of surface facilities
within the current footprint of preexisting operations, minor changes in
color schemes, or minor, non-routine
maintenance actions.
The Service has decided it is not
necessary to revise the definition of
‘‘modification’’ in the rule to include
these specific examples. Instead, these
examples and others the Service
develops in the future will be included
in guidance documents provided to preexisting operators and holders of
existing Service authorizations as well
as Service staff who will administer the
rule.
26. Comment: Another commenter
recommended two changes to the
regulations addressing modification of
existing operations. First, the
commenter asked the Service to add the
word ‘‘significant’’ before ‘‘additional
impacts’’ in the definition for
‘‘modifying.’’ This change would clarify
that modified permits are not (and
should not be) required for minor
modifications to operations that do not
result in significant changes in effects to
the environment. Second, proposed

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§ 29.160 should be modified to clarify
that the Service may amend a permit
only when there is a ‘‘significant’’ or
‘‘substantial’’ modification to the
permitted operation.
Service Response: The Service
considered the addition of the word
‘‘significant,’’ as well as other adjectives
to provide more clarity for what the
Service would consider to be a
‘‘modification.’’ However, we decided
that adding any such language was not
useful, because such terms themselves
remained subject to various
interpretations. For instance, an
operator, the Service, or a nongovernmental organization or individual
may have very different beliefs as to
what constitutes a ‘‘significant’’ impact
to refuge resources and uses. Therefore,
we have provided several examples of
what would likely constitute a
modification (see above) to provide
some clarification to our intentions in
regulating modifications, and as
previously stated we will provide
further guidance documents for this
purpose. However, determining whether
a change is a ‘‘modification’’ of the
operation must be done on a case-bycase basis because the details of when,
where, and how such changes are
accomplished will determine whether
such a change is ‘‘beyond the scope,
intensity, and/or duration of existing
impacts.’’ Therefore, the Service did not
revise the rule as suggested by this
comment.
Performance-Based Standards
27. Comment: The Service received
conflicting comments regarding our
proposed approach of regulating oil and
gas operations based on performancebased standards. Some commenters
requested that the Service require
prescriptive actions, at least in some
instances. For example, one commenter
suggested the general reclamation
standard to ‘‘remove or neutralize
contaminating substance’’
(§ 29.117(d)(3)) be modified to include a
strict prohibition of onsite remediation
of contaminants. Also, the Service
received comments that these
performance-based standards leave too
much discretion to the Service to either
be too lenient with operators or too
strict.
Service Response: Pursuant to
Executive Order 12866 (58 FR 51735),
‘‘[e]ach agency shall identify and assess
alternative forms of regulation and shall,
to the extent feasible, specify
performance objectives, rather than
specifying the behavior or manner of
compliance that regulated entities must
adopt’’ (E.O. 12866(b)(8)). Consistent
with the direction provided in E.O.

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12866, and as stated in the proposed
rule, the rule is based on performancebased standards rather than prescriptive
operating standards. A prescriptive
standard may seem stricter because it
ensures that an operator follows a
certain practice that seems like it would
protect refuge resources and uses and
allows the operator no flexibility to use
a less-protective standard. However, in
implementation, these standards can, in
some instances, have the unintended
consequence of actually being more
harmful to refuge resources and uses.
For example, onsite remediation of a
hydrocarbon spill may result in less
overall impacts or risks of impacts by
reducing heavy truck traffic than a
prescriptive standard of requiring offsite
removal of soils, which also increases
the potential for introduction of
invasive plant species associated with
import of new fill material. The
flexibility for refuge managers and
operators to accomplish a desired end
allows site-by-site evaluation of
alternatives that are least damaging
overall. Additionally, science and
technology are constantly advancing,
and new methodologies used today are
much more environmentally protective
than those available only a few years
before. If these trends continue in the
future, the performance-based standards
in the rule easily adapt to those
changing methodologies and will be at
least as effective in the future as they are
today.
In response to comments that using
performance-based standards leaves too
much discretion to the Service, this rule
will be accompanied by detailed
guidance for both operators and Service
staff on what are current best
management practices for meeting these
standards. This guidance will provide
consistency of interpretation and
application of the standards across the
NWRS and decrease the possibility that
the discretion afforded refuge managers
will be misapplied. Furthermore,
through compliance with the National
Environmental Policy Act (NEPA)
process at the site-specific permit level,
the public will have the opportunity to
review and comment on Service
proposals.
28. Comment: Other commenters were
generally supportive of the more flexible
approach, but recommend that the
Service remove what they saw as more
prescriptive standards in the rule in
favor of more general goals to be
achieved. For example, a commenter
recommended removing the proposed
regulations requiring the installation
and maintenance of secondary
containment, applying seasonal
restrictions, and specifying the location,

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type, and design of facilities (proposed
§§ 29.111–29.119) as unreasonable,
burdensome, and unlawfully
diminishing the value of the mineral
estate. The commenter suggested that
the Service replace these standards with
more general goals to be achieved to
‘‘the extent technologically and
economically feasible, and a
requirement to use best management
practices.’’
Service Response: The Service
recognizes that some arguably
prescriptive management practices are
included in the suite of performancebased standards. The observation that
an operator must install and maintain
secondary containment is a good
example (§ 29.111(b)). In part, the
provision is prescriptive, but
acknowledges the widespread use of the
best management practice of secondary
containment by industry and regulatory
agencies to capture spills, prevent their
spread, and facilitate their cleanup. In
this instance, the Service does not
envision any alternatives that would
exclude the use of secondary
containment and still meet the
‘‘technologically feasible, least
damaging method’’ standard, and so the
provision serves to inform operators and
the public of an aspect of the rule’s
approach to managing contaminating
substances. Additionally, the
requirement still leaves flexibility for
the refuge manager and operators to
decide on the design and operation of
the secondary containment system.
Similarly, in a few other instances the
Service has included practices that we
find to be more informative but which
may be seen as somewhat prescriptive;
however, we have maintained flexibility
for site-specific implementation. The
rule includes the necessary general
goals applied with the overall standard
of technologically feasible, least
damaging methods. The rule will result
in best management practices being
identified and included in the sitespecific operations permit.
29. Comment: One commenter asked
whether what is practical for a
particular operator would be a
consideration in what is
‘‘technologically feasible, least
damaging methods.’’
Service Response: While we do
consider economics in determining
appropriate methods, we look at what is
feasible in terms of industry-wide
practice, not what is affordable for a
specific operator. The Service does not
intend to allow operators to use
methods that unreasonably harm refuge
resources and uses just because the
operators don’t have the adequate
financial resources to employ

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technologically feasible, least damaging
methods.
30. Comment: The Service also
received a comment that it does not
have the authority to permit only the
‘‘least damaging’’ operational methods
and that the Service’s use of the term
‘‘technologically feasible, least
damaging methods’’ is not appropriate
and should be replaced with ‘‘feasible
methods’’ that are technologically and
economically feasible, as determined by
the best industry practices available.
This commenter contended that the
Service may only recommend, not
require, the ‘‘least damaging’’ methods,
stating that the mineral interest owner is
not required to conduct its operations in
a manner that is not economically or
technologically feasible in order to
access its mineral rights.
Service Response: The Service has
considered this comment and does not
agree. First, we note that NPS has in fact
used this standard for new operations
since January 1979. This term, defined
at § 29.50, ensures that the Service does
not go beyond what is technologically
feasible in the methods required of an
operator and considers the industrywide economics of those methods in
making those decisions. It also ensures
that an operator uses those methods that
are least damaging of refuge resources
and uses, which is a responsibility of
the Service to maintain under the
NWRSAA. Therefore, the Service
concludes that requiring
‘‘technologically feasible, least
damaging methods’’ is well within the
authority of the Service.
31. Comment: The Service received
several comments recommending that
the Service remove any ambiguous
language contained in the proposed
rule, including the term ‘‘greatest extent
practicable’’ found at proposed § 29.32.
Commenters were concerned that such
language would allow the operators the
unnecessary ability to pressure the
Service into allowing methods that are
based more on economic factors rather
than NWRS resource and use protection.
Service Response: In response to these
comments, the Service went back to the
regulations to review for any ambiguous
language. The Service did use these
terms quite frequently in the preamble
to the proposed rule where it outlined
the Service’s general intent regarding
the proposed rule. The Service has
avoided using such ambiguous terms in
the preamble to the final rule. When the
Service reviewed the proposed rule text
in consideration of this comment, we
found that the term ‘‘greatest extent
practicable’’ only appeared at § 29.32,
which is a revised version of a general
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to managing all non-Federal mineral
rights. This language remains from the
previous regulations found at § 29.32
and pertains to rights other than oil and
gas rights, so the Service decided not to
revise this language at this time. Other
than this section, the Service found one
other instance of ambiguous language in
the proposed rule (see in proposed
§ 29.111(g) ‘‘to the extent reasonably
practicable’’) and has removed such
language.
Timeline for Approval
32. Comment: The Service sought
comment on whether the 180-day
timeline for final action is reasonable.
The Service received some comments
stating that this timeline was too long
for operators to wait to get authorization
on their permits. Other commenters
suggested that this timeline was too
short and would hinder the Service’s
ability to fully comply with NEPA
requirements.
Service Response: The Service has
considered these comments, but has
determined that the timeline from the
proposed rule should be maintained in
the final rule. The timeline does provide
for hard deadlines and limits the
Service’s discretion to delay the
processing of Operations Permit
applications. For instance, under the
rule, the Service has 30 days to conduct
its ‘‘initial review’’ to determine
whether an operator’s application is
complete, request more information
from the operator, or inform the
operator that more time is necessary and
provide written justification for the
delay. Once the application is deemed
complete, the Service must generally
take final action within 180 days. Any
additional time after the 180 days may
be taken only if the operator agrees to
additional time, or that time is
necessary for the Service to comply with
applicable laws and regulations. The
Service’s purpose in using the 180-day
timeframe is to provide operators with
greater certainty regarding the
permitting process. While the Service
cannot always guarantee meeting this
deadline and has, therefore, provided an
extension provision in the rule, it is the
Service’s intention to process these
permits as quickly as possible and not
unreasonably impede a private mineral
rights owner’s right to access those
minerals.
33. Comment: One commenter
recommended that the Service add a
provision to the regulations that would
provide a Categorical Exclusion under
NEPA for permits issued under this
subpart and additionally include a
provision that compliance with the
terms of the permit is ‘‘deemed to be not

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likely to adversely affect any species
listed under the federal Endangered
Species Act.’’
Service Response: The Service
declines to adopt the commenter’s
recommendation because it is beyond
the scope of this rulemaking and we do
not currently have the record that we
would need to demonstrate to the
Council on Environmental Quality to
establish a new categorical exclusion.
As the Service gains experience in
implementing the rule, we may find that
it is appropriate to pursue adoption of
a new categorical exclusion. Similarly,
with respect to the inclusion in the rule
of a provision regarding compliance
with the Endangered Species Act (ESA),
we are unable to accept the
recommendation because such
determinations must be made on a caseby-case basis in compliance with
section 7 of the ESA (16 U.S.C. 1531 et
seq.).
Information Requirements and Public
Access to Information
34. Comment: The Service received
some comments that the proposed
information requirements for permit
applications (50 CFR 29.94–29.97) were
extraordinarily extensive and unduly
burdensome. These commenters
believed that these sections, as well as
§ 29.121(f), also unlawfully require the
disclosure of confidential and/or
proprietary information and requested
that any provisions requiring the
disclosure of such information be
removed. These commenters also
requested that the Service scale down
information requirements to only the
basic information needed for the Service
to assess the location and type of
operations that will be undertaken.
Service Response: The Service
carefully considered what information
was necessary from operators so that the
agency could properly administer nonFederal oil and gas activities on the
NWRS and ensure that operators avoid
or minimize impacts to refuge resources
and uses. We analyzed each of the
information requirements in compliance
with the Regulatory Flexibility Act to
ensure that the benefit of these
information requirements to NWRS
resources and uses were appropriate
based on the administrative costs to the
operator and the Service, and we
concluded that all information
requirements in the rule are appropriate.
Furthermore, we understand that
information requirements can be
burdensome on operators, so in
instances where the Service needs
information gathered in compliance
with other Federal or State laws under
this rule, the Service does not require an

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operator to duplicate that information
but rather provide the Service copies
(see, e.g., §§ 29.61(d), 29.121(g)).
35. Comment: Commenters suggested
that the Service information
requirements are inadequate because
they do not require full disclosure of
chemicals used for hydraulic fracturing
prior to obtaining a permit. They
questioned how the Service could do a
full analysis of the environmental risks
of a hydraulic fracturing operation if
they did not have all of the information
regarding chemical uses by the operator.
Commenters also stated that proposed
§ 29.210 would allow operators to avoid
any obligations to disclose the identity
of fracking chemicals used simply by
submitting nothing more than an
affidavit in support of their claim that
the information is confidential and the
Service would have no power to
disclose the information to the public if
the operator were to provide it.
Service Response: While an operator
will be able to provide an affidavit to
support the protection of proprietary or
confidential information, an operator
still must provide the Service any
information the agency needs to fully
assess the environmental impacts of an
operator’s activities, including all
chemical uses in the operation.
Information requirements included
under § 29.95(p) include identification
of contaminating or toxic substances
used or expected to be encountered
during operations, including material
safety sheets. In the rule, the Service
also used the ‘‘including, but not
limited to’’ term in the list of
information requirements to reserve the
ability to require additional information
(see § 29.96) if necessary.
The information requirements of
§ 29.95(p) provide the Service with the
necessary information upfront to
sufficiently analyze the environmental
risks of a hydraulic fracturing operation
and to ensure that operators are
following best management practices for
storing and removing these chemicals.
The post-operational chemical
disclosure information that operators
commonly provide via FracFocus is for
the different purpose of identifying
specific sources of contamination and
responsible parties should
contamination occur.
36. Comment: One commenter
requested the Service provide an easy
way for the public to access information
about proposed operations and report
perceived violations, including the
option for anonymity to encourage
workers and others with sensitive
positions to report problems.
Service Response: The Service’s
approval of any proposed operations on

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the NWRS will be done in compliance
with NEPA, and the Service will
provide the public with information
about proposed operations and the
opportunity to participate as afforded by
that Act. As for reporting perceived
violations, contact information for each
refuge is readily available and is the
fastest and most efficient way of
notifying the Refuge of any perceived
violations. We encourage the public and
workers to contact that refuge with any
concerns they may have regarding
perceived violations by these operators.
Such information can be provided to the
refuge anonymously through letters,
phone calls, or any other means that
will allow an individual to feel
comfortable doing so.
Penalty and Enforcement Provisions
37. Comment: The Service received
several comments recommending that
the final rule provide for robust
enforcement of rule requirements and
include specific penalties for noncompliance. For instance, commenters
requested specific provisions regarding
notifying and working with operators to
bring them into immediate compliance;
issuing formal written notices of noncompliance; specific penalties for noncompliance; seeking civil penalties for
failure to comply with a notice of noncompliance; and for more egregious
cases, filing a civil action in Federal
court seeking an injunction or
restraining order to stop damaging
operations. One commenter also
suggested that the Service adopt NPS
current regulations for approval of an
operations permit (50 CFR 9.37(a))
believing that the language contained in
that section, if adopted by the Service,
would provide the Service the ability to
deny a permit if it is not protective
enough of a refuge.
Service Response: The Service
considered these comments, but
concluded that modifying our
enforcement provisions as the
commenter suggested is not warranted.
In speaking with Refuge law
enforcement, the Department of Justice,
and the Solicitor’s Office, the Service
finds these provisions provide sufficient
tools for the Service to ensure
compliance with this subpart on penalty
and enforcement. Administrative
corrective actions are not normally
contained within the prohibited acts
sections of regulations. The Service
would adopt the recommended
progressive enforcement action
suggested by the comment through
Service policy.
Furthermore, the rule provides the
Service the ability to deny a permit if
the operator does not meet several

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requirements (§ 29.103). The Service
finds that these requirements are both
more specific and clearer than the
language suggested by the commenter.
These requirements have been carefully
crafted to ensure that the Service’s
approval (or denial) process for an
Operations Permit meets the objectives
of the rulemaking to ensure operations
avoid or minimize impacts to refuge
resources and uses.
38. Comment: Additionally, a
commenter requested that the Service
provide further clarity on how
prohibited acts and penalties apply to
pre-existing operations and
recommended that violation of the
informational requirements,
modifications, reclamation, general
terms and conditions, and other
operational requirements in §§ 29.60–
29.64 be added to prohibited acts and
penalties for pre-existing operations at
§ 29.190.
Service Response: The Service agrees
with the commenter that the proposed
rule could have been clearer as to which
provisions apply to pre-existing
requirements or not and has revised the
rule accordingly at § 29.60 through
§ 29.64 and § 29.190. A violation by a
pre-existing operator of informational
requirements, modifications
requirements, reclamation requirements,
and applicable general terms and
conditions is considered a prohibited
act and subject to applicable penalties.
Appeals
39. Comment: The Service received
comments that the two-tiered appeals
process proposed in the regulations is
unreasonable and unduly burdensome.
There should be a single, expedited
administrative appeal available for
challenges to actions taken by the
Service under the proposed regulations.
This administrative decision should be
directly appealable in Federal court.
Service Response: The appeals
process outlined at § 25.45 is the
process by which the Service currently
reviews all appeals of the Service’s
permit decisions for public uses on
refuge lands. The Service will not
provide a different appeals process
under this subpart, because we find that
the current process works well and that
the changes requested would lead to
less consistency and efficiency for the
administration of permits by the
Service. The two-tiered appeals process
provides additional opportunities to
resolve disagreements, while preserving
opportunities for judicial review of final
agency action under the Administrative
Procedure Act. As to the other concern
raised by the commenter, we revised
§ 29.200 to clarify that the decision of

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the Regional Director will constitute the
Service’s final agency action.
Finally, in reviewing the appeals
process under the proposed rule as it
would relate to pre-existing operations,
the Service realized that it needed to
revise this section to provide an
operator the opportunity to appeal
decisions made by the Service that do
not apply to a permit granted by the
Service and so has added the following
provision to § 29.200: ‘‘The process set
forth in § 25.45 is to be used for any
written decision concerning approval,
denial, or modification of an operation
made by the Service under this
subpart.’’

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Access
40. Comment: The Service received
comments requesting the final rule
contain a provision stating that the
Service cannot place conditions on
operations in a permit that only allows
an operator to access and traverse
Federal lands (i.e., in order to access
operations on non-Federal lands).
Service Response: In administering
access across Federal lands, the Service
is required by law to analyze the
impacts of authorizing that access under
NEPA. Through that analysis, the
Service may find impacts to refuge
resources and uses resulting from
operations on non-Federal land
resulting from the authorization of that
access. In those cases, the Service will
work with those requesting access
across Federal lands to minimize or
avoid those impacts, and, if agreeable to
both the Service and the operator, those
avoidance or mitigation measures may
be included in the access permit.
However, as stated in the proposed rule
and maintained in the rule, the Service
has made clear that we are permitting
the access and not regulating the
operations on non-Federal land.
Accordingly, no change in the
regulatory text is required.
Fees
41. Comment: Some commenters
suggested that the Service ensure that
they are assessing the appropriate and/
or additional fees of operators in order
to ensure that the Service has adequate
funding to administer these operations.
Additionally, the Service received
comments stating that the agency
should have full authority to charge fees
to cover annual inspections as well as
any more frequent inspections needed
during construction and pre-production
activities, as well as for repeat violators
or higher risk operations. Commenters
recommended that the Service replace
‘‘may’’ with ‘‘will’’ at § 29.120(c), not
understanding why the Service would

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not charge for the costs of processing
and administering temporary access
permits and operations permits,
particularly in an era of limited agency
budgets. Other commenters stated that
fees cannot be required for access or
administering operating permits that are
already within the scope of the
operator’s oil and gas right or other right
provided by law and that there should
be no fees for emergency access.
Additionally, they stated that if an
access fee can be applied, then it must
be reasonable and cannot burden the
underlying oil and gas right or
otherwise diminish the value of the
mineral estate.
Service Response: After considering
these comments, the Service did not
revise the rule with respect to fees
charged by the Service for either access
or administering operations permits.
Related to access fees, the Service is not
charging for access that is pursuant to a
deeded or statutory right to use the
refuge-administered lands without
payment, but only for access that is
granted as a privilege ‘‘outside the scope
of an operator’s oil and gas right’’ for
which the fees are subject to the
provisions of the Refuge Revenue
Sharing Act (16 U.S.C. 715s). Such
access is a special benefit that warrants
a user charge commensurate with fees
and charges for similar privileges and
products made by private land owners
in the vicinity or in accordance with
local value (see 50 CFR 29.5). In terms
of recovery costs of permit
administration and operations
monitoring allowed under § 29.120(c),
the Service uses ‘‘may’’ instead of
‘‘will’’ to provide flexibility to refuge
managers and foster cooperation with
operators. In some instances, operators
may choose to share the costs with the
Service in administering permits in
order to expedite the process. For
example, an operator may provide
funding for a third-party contractor to
prepare an environmental assessment
for the Service during the permitting
process. Periodic and annual
inspections are aspects of administering
a permit, and charging fees for such
activities fall under that section. With
flexibility in charging fees, operators
and refuge managers may develop a mix
of self-reporting and refuge monitoring
that reduces administrative
requirements on both parties.
Implementation
42. Comment: The Service got one
comment suggesting that the Service
have refuge-specific management plans.
Service Response: The Service
appreciated this comment and will
further consider it in implementing the

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79965

rule. The Service already has developed
refuge-specific oil and gas management
plans through Comprehensive
Conservation Plans, Habitat
Management Plans, or other planning
documents created to manage specific
refuges. On refuges where there is the
potential of oil and gas development,
they include management strategies for
these operations. The Service will
continue to develop and update these
plans as necessary to ensure they are
consistent with this rule.
43. Comment: Several commenters
from industry and non-governmental
organizations expressed concern that
the Service does not have adequate
staffing to properly implement the rule.
In particular, some commenters
expressed the need to ensure that, along
with this rule, the Service has the
necessary level of funding, staffing, and
training to properly implement the rule,
as highlighted by the 2007 Government
Accountability Office (GAO) report that
assessed the status of oil and gas
operations on the National Wildlife
Refuge System in 2007. Their report
highlighted the inadequacy of the
Service’s current regulations and, in
part, led to the promulgation of these
proposed revisions. The GAO stated that
‘‘[w]e recommend[ ] that FWS determine
the level of staffing necessary to
adequately oversee oil and gas
operations and seek the necessary
funding to meet those needs through
appropriations, the authority to assess
fees, or other means.’’ The report further
stated, ‘‘we recommend that FWS
ensure that staff are adequately trained
to oversee oil and gas activities’’ (GAO–
07–829R). One comment requested the
Service scale back the rule based on its
limited resources. Another comment
suggested that this rule may require
assessing additional fees on operations,
periodically ensuring that fees are
adequate to cover the costs of
monitoring and enforcement.
Service Response: In crafting the
proposed and final rules, the Service
carefully considered the administrative
burden the rule placed on operators and
Service staff and on the resources
required by the Service to successfully
implement the rule. Therefore, the
Service has weighed the cost of
administration versus the resource
benefits gained from regulation and
decided on several occasions that were
discussed in the responses to several
comments above that the cost-benefit
analysis did not support a more
stringent regulatory regime. As
promulgated, the rule prioritizes and
regulates those activities with the largest
potential impacts on refuge resources
and uses. As discussed above, this is

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one of the main reasons the Service for
the most part has declined to regulate
downhole activities associated with
operations and to exempt inholdings
and non-Federal adjacent lands from the
rule.
The Service currently has dedicated
staff that manages oil and gas
development on National Wildlife
Refuge System lands. This rule brings
more consistency and guidance to staff
already dedicated to these issues. While
there are additional responsibilities
involved in processing operations
permit applications and monitoring
operations, the Service has determined
this increase in need can be effectively
met with the reallocation of refuge staff
and resources. Additionally, the rule
contains cost recovery or cost-sharing
provisions that help ensure the Service
has the necessary resources to
implement the rule effectively and
efficiently.
Section-by-Section Recommendations
The Service received several other
recommendations on specific section
revisions to the proposed rule. The
Service has considered all of these
recommendations and has made
changes, as appropriate, to provisions of
the rule as discussed below and/or
outlined in the table in the section
Changes from the Proposed Rule.
44. Comment: The Service received
comments requesting that the definition
of ‘‘access’’ (proposed § 29.50) be
revised so that ‘‘access’’ does not
include use of an aircraft when the
aircraft doesn’t take off of or land on
Service-administered lands or waters.
On the other hand, the Service received
other comments recommending that the
Service carry over the definition of
‘‘access’’ to the final rule, at least
subjecting aircrafts landing on nonFederal lands to timing limitations to
avoid disturbing wildlife.
Service Response: The Service has
considered these comments and has
revised § 29.50 to clarify that access
does not include aircrafts that both take
off from and land on inholdings or nonFederal adjacent lands, because the
Service does not have the authority to
condition aircraft landings outside of
the NWRS.
45. Comment: The Service received a
comment asking that the Service further
clarify the process for authorizing use of
water outside of a State right and that
it should be done in line with a
compatibility determination.
Service Response: The Service has
concluded that determining sources of
water for use in operations is best
evaluated using the procedures and
performance standards of the rule.

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Absent a demonstration by the operator
that they have a right to use the water
(e.g., State-held water right, specific
deed language), water use,
transportation, and storage on a refuge
would be evaluated for the
technologically feasible, least damaging
method. Considerations would include,
among other things, the volume of water
needed, capacity of water sources to
meet those needs and resulting
consequences on aquatic resources, and
transportation and storage methods.
46. Comment: The Service received a
comment suggesting the definition for
‘‘usable water’’ includes water for
wildlife purposes so that shallow-water
aquifers, seeps, and springs will be
protected for wildlife on the NWRS.
Service Response: The definition for
usable water does not need to be
changed in the rule in order for the
Service to protect water for wildlife
purposes. The rule includes hydrologic
standards (§ 29.113) and fish and
wildlife protection standards (§ 29.112),
as well as other standards, that serve to
maintain water quality and quantity for
use by wildlife. The term ‘‘usable
water’’ is a specific term and definition
that has been developed and used by
other Federal agencies (i.e., the
Environmental Protection Agency (EPA)
and BLM) to ensure protection of
specific resources that may be impacted
by oil and gas operations or other
activities. So the Service did not revise
this definition.
47. Comment: The Service received a
comment requesting that the Service
remove fuel drums, pipes, oil,
contaminated soil, etc., with any residue
of oil or hazardous chemicals from the
definition of ‘‘waste,’’ because they
include ‘‘contaminating substances’’
and should be defined and treated as
such.
Service Response: The Service intends
that these terms are not mutually
exclusive, and something may be both
‘‘waste’’ and a ‘‘contaminating
substance.’’ An operator must comply
with the applicable rule requirements
for dealing with each.
48. Comment: We received comments
requesting that the Service increase the
distance an operator is required to place
operations away from surface waters
from 500 feet to 2 miles based on BLM’s
determination that ‘‘surface and
groundwater contamination, due to oil
and gas development . . . occurred
between 1,000 to 1,800 feet from . . .
drilling’’ in Colorado (BLM Grand
Junction Resource Management Plan
FEIS at 6-271).
Service Response: The Service is
aware of this BLM finding, but has
concluded that a revision of the rule is

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not necessary to protect surface and
groundwater resources from
contamination. The establishment of
setbacks of operations from sensitive
resources such as surface waters or
wetlands is based on common
knowledge that providing time and
space to react to incidents such as spills
or poor operating practices is key to
minimizing risks. However, there is no
single setback distance that is
appropriate for all conditions of
proposed activities and environmental
conditions. Environmental conditions
may provide natural or human-made
barriers that would justify a reduced
setback. On the other hand, site
conditions such as steep slopes or
annually high precipitation can enhance
pathways between the activity and
resource, and thus justify greater
setbacks.
Regulatory establishment of a ‘‘good
offset’’ that considers both the activities
and the average environmental
conditions provides a beginning point
for site location considerations.
Additionally, having a regulatory
process for adjusting site-specific
setbacks—either lower or higher—based
on project and environmental
conditions is the key to successful use
of setbacks. Through the Service’s own
analysis in the associated EIS, we
continue to believe that 500 feet
provides the necessary time and space
in the majority of circumstances.
However, the rule (§ 29.113)
appropriately gives the ability to the
Service to require an even greater
setback if conditions, such as those
highlighted by the comment, would
justify a greater setback distance. We
also recognize that exceptions to the
setback are sometimes essential to
balancing overall impacts of an
operation. A prime example occurs in
coastal environments where the practice
of locating drilling operations in open
water has been demonstrated to be least
damaging by avoiding the impacts of
cutting and dredging drilling slips and
canals into sensitive marshland.
Therefore, the Service believes that
flexibility in this standard is appropriate
and gives the Service the ability not
only to ensure the least damaging
methods to refuge resources and uses,
but also to ensure that an operator has
reasonable access to their minerals
based on a case-by-case determination.
49. Comment: The Service received
comments recommending that we
include provisions in the final rule that
require an operator to collect additional
information, such as water and soil
samples and wildlife surveys, prior to
beginning operations.

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Service Response: In response to these
comments, it is our intention that
reconnaissance surveys will be used to
collect this type of information and any
other necessary natural and cultural
resource conditions the Service deems
necessary to ensure protection of refuge
resources and uses. We acknowledged
above that proposed § 29.94 was not
clear, and we have revised the rule to
clarify that reconnaissance surveys will
be used to collect this type of baseline
information.
50. Comment: The Service received
comments stating that the Service does
not have the authority to require
mitigation for impacts by mandating
that operators provide for ‘‘habitat
creation, habitat restoration, land
purchase, or other compensation’’ and
recommending that proposed
§ 29.120(g) be eliminated from the
regulations as it amounts to an access
fee that unreasonably and unlawfully
restricts access to mineral rights.
§ 29.40
§ 29.41
§ 29.42
§ 29.43

.......................
.......................
.......................
.......................

§ 29.44 .......................
§ 29.50 .......................

§ 29.61 .......................
§ 29.62 .......................
§ 29.63
§ 29.64
§ 29.70
§ 29.90
§ 29.92

.......................
.......................
.......................
.......................
.......................

§ 29.94 .......................
§ 29.101 .....................
§ 29.111 .....................
§ 29.112 .....................
§ 29.113(a) .................
§ 29.117(d)(5) ............
§ 29.118 .....................

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§ 29.119(b)(5) ............
§ 29.120(d) .................
§ 29.120(e) .................
§ 29.120(g) .................
§ 29.121(e) .................
§ 29.140 .....................
§ 29.141 .....................

VerDate Sep<11>2014

Service Response: After considering
these comments, the Service has revised
proposed § 29.120(g), redesignated as
§ 29.120(f) in the final rule, to clarify
that mitigation tools must be mutually
agreed upon by the Service and the
operator. The Service believes this
provision is within the scope of the
Service’s authority under the NWRSAA
to protect refuge resources and uses, and
may in some circumstances be
appropriately used by an operator to
offset impacts to refuge resources and
lost use.
51. Comment: The Service received
comments recommending that the
Service expand the monitoring and
reporting requirements. For instance,
some commenters recommended that
the Service decrease the reporting time
from 90 days to 30 days and include
explanations of what happened, why it
happened, who was involved, the
results, and how the company intends

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to prevent similar incidents in the
future.
Service Response: The Service finds
that these recommendations are not
warranted. This provision in the rule is
intended to provide the Service with
information about occurrences on the
NWRS. Due to the nature of accident
investigations and the time it may take
to get the official report, we concluded
that 90 days is an appropriate
timeframe. There are also existing State
and Federal laws governing various
accident occurrences, and we have
determined that additional regulatory
provisions are not needed at this time to
better enable the Service to protect
Refuge resources and uses.
Changes From the Proposed Rule
After taking the public comments into
consideration and after additional
review, the Service made the following
substantive changes in the rule:

Revised to clarify the scope of this rule as related to Alaska inholdings and waters within NWRS boundaries.
Revised to clarify that this rule does not apply to operations in Alaska.
Revised to remove provisions related to operations in Alaska.
Revised to clarify which provisions of the rule apply to existing operators with a Service-issued permit and to clarify requirements in regards to plugging and reclamation.
Revised to clarify requirements for pre-existing operators in regard to plugging and reclamation. Also, replaced ‘‘operation’’ with ‘‘operator’’ to clarify that exemption from a permit requirement applies to a pre-existing operator, not the
operation.
Revised to: (1) clarify that access does not include aircrafts that both take off from and land on inholdings or non-Federal adjacent lands; (2) clarify that the term ‘‘area of operations’’ can include pre-existing, proposed, and approved
areas; (3) clarify that ‘‘modifying’’ applies to a changes in existing operations; (4) remove the definition of right-of-way
(ROW) permits as it was only applicable to operations in Alaska.
Revised to require additional information from pre-existing operators, including a brief description of the current operations and any anticipated changes to the current operations; and documentation of the current operating methods,
surface equipment, and materials produced or used.
Revised to clarify that the requirement to obtain an operations permit for a new operation or a modification will be limited to that new operation or modification, not the entire existing operation.
Revised to clarify that pre-existing operators must plug and reclaim their operations in compliance with this rule.
Revised to clarify which additional provisions of the rule would apply to the various classes of operations.
Removed language regarding operations in Alaska.
Removed language regarding operations in Alaska.
Revised to clarify that if an operator is using previously submitted information, they should reference it in the permit application.
Revised to remove language regarding an unnecessary ROW form; also revised to clarify the Service’s authority to require an operator to collect certain natural and cultural resource information if necessary and other minor changes to
and deletions of unnecessary language for clarity.
Removed language regarding operations in Alaska.
Revised to remove ambiguous and repetitive language and be consistent with the NPS 9B regulations; also added paragraph (h) related to operation setbacks from surface water locations previously found in the hydrological standards
section.
Revised to clarify our standards for protecting wildlife.
Combined the provision related to operation setbacks from surface water locations with the general facility design and
management standard for setbacks from refuge structures or facilities in § 29.111(h).
Revised to clarify the objective of grading requirements during reclamation.
Deleted provisions related to geophysical operations in Alaska; and revised paragraph (d)(3) to clarify that an operator
must not leave a site in a condition that poses hazards to wildlife.
Revised to clarify that an operator must not leave a site in a condition that poses hazards to wildlife.
Revised to clarify that any use of Federal water on the NWRS absent a demonstrated right must be approved by the
Service as the technologically feasible, least damaging method.
Moved to § 29.103(b)(3) to clarify that providing a statement under penalty of perjury that an operator is in compliance
with applicable State and Federal laws is part of the permit approval process.
Revised to clarify that mitigation must be mutually agreed upon and that it may be required to offset impacts to refuge
resources or lost uses. Redesignated as § 29.120(f).
Revised to clarify that an operator would need to provide the Service with information only to the extent necessary to
demonstrate compliance with a Service-issued permit.
Removed language regarding operations in Alaska.
Removed (c) as the Service does not currently have the authority to accept in-kind services to offset fees.

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§ 29.151 .....................
§ 29.160 .....................
§ 29.171 .....................
§ 29.180 .....................

§ 29.190 .....................
§ 29.190(e) .................
§ 29.192 .....................
§ 29.200 .....................
§ 29.210(g) .................

Revised to clarify that operator is responsible for reclaiming any disturbances inside or outside of their area of operation
and that an operator is liable for the full cost of reclamation.
Revised to clarify that an operator will be given a chance to respond to the Service’s notice of a proposed modification
to their operations.
Revised to include the requirement that, when a pre-existing operator transfers operations, the new operator must obtain an Operations Permit from the Service. Also revised to allow continuity of operations while they file the permit application.
Revised to clarify that this section applies to any Service-issued permit (i.e., existing operators under a Service-issued
permit) not just an Operations Permit granted under this rule for new operations; and revised language from ‘‘continuously inactive for a period of 1 year’’ to ‘‘has no measurable production quantities for 12 consecutive months’’ to provide further clarity on when an operator must plug a well.
Deleted provisions related to operations in Alaska.
Revised to separate violations of Federal and State law into two different prohibited acts, (e) and (f), and to make wording consistent with other Service regulations.
Revised to clarify that a violation will not affect your ability to get a permit for plugging and reclamation.
Revised to clarify that an operator must administratively appeal under § 25.45 before going to Federal court. Also, revised to clarify that this process would be used to appeal all written decisions made under this subpart, not just those
made under a permit. Finally, removed language regarding operations in Alaska.
Revised to clarify that for information provided under both § 29.210(d) and § 29.210(e), after reviewing an operator’s affidavit or a third party’s affidavit claiming exemption from public disclosure, the Service may find that information is not
exempt from public disclosure and make that information available 10 business days after providing notice.

Compliance With Other Laws,
Executive Orders, and Department
Policies
Regulatory Planning and Review
(Executive Orders 12866 and 13563)
Executive Order 12866 provides that
the Office of Information and Regulatory
Affairs (OIRA) in the Office of
Management and Budget will review all
significant rules. OIRA has determined
that this rule is significant, because it
may raise novel legal or policy issues
arising out of legal mandates, the
President’s priorities, or the principles
set forth in the executive order.
Executive Order 13563 reaffirms the
principles of Executive Order 12866
while calling for improvements in the
nation’s regulatory system to promote
predictability, to reduce uncertainty,
and to use the best, most innovative,
and least burdensome tools for
achieving regulatory ends. The
executive order directs agencies to
consider regulatory approaches that
reduce burdens and maintain flexibility
and freedom of choice for the public
where these approaches are relevant,
feasible, and consistent with regulatory
objectives. Executive Order 13563
emphasizes further that regulations
must be based on the best available
science and that the rulemaking process
must allow for public participation and
an open exchange of ideas. This rule is
consistent with these requirements.

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Regulatory Flexibility Act
Under the Regulatory Flexibility Act
(RFA), as amended by the Small
Business Regulatory Enforcement
Fairness Act of 1996 (SBREFA), 5 U.S.C.
601 et seq., whenever an agency is
required to publish a notice of
rulemaking for any proposed or final
rule, it must prepare and make available

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for public comment a regulatory
flexibility analysis that describes the
effects of the rule on small entities (i.e.,
small businesses, small organizations,
and small government jurisdictions).
However, no regulatory flexibility
analysis is required if the head of the
agency certifies the rule will not have a
significant economic impact on a
substantial number of small entities.
The SBREFA amended the RFA to
require Federal agencies to provide a
statement of the factual basis for
certifying that the rule will not have a
significant economic impact on a
substantial number of small entities.
We certify that this rule would not
have a significant economic effect on a
substantial number of small entities
under the RFA (5 U.S.C. 601 et seq.).
This certification is based on the costbenefit and regulatory flexibility
analysis found in the report entitled
Non-Federal Oil and Gas Rulemaking
Economic Analysis, which can be
viewed at http://www.fws.gov/refuges/
oil-and-gas/rulemaking.html, by
clicking on the link entitled NonFederal Oil and Gas Rulemaking
Economic Analysis or at
www.regulations.gov in Docket No.
FWS–HQ–NWRS–2012–0086.
Small Business Regulatory Enforcement
Fairness Act (SBREFA)
This rule is not a major rule under 5
U.S.C. 804(2). This rule:
(a) Would not have an annual effect
on the economy of $100 million or
more;
(b) Would not cause a major increase
in costs or prices for consumers,
individual industries, Federal, State, or
local government agencies, or
geographic regions; and
(c) Would not have significant adverse
effects on competition, employment,

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investment, productivity, innovation, or
the ability of U.S.-based enterprises to
compete with foreign-based enterprises.
These conclusions are based on the
cost-benefit and regulatory flexibility
analysis found in the report entitled
Non-Federal Oil and Gas Rulemaking
Economic Analysis, which can be
viewed at http://www.fws.gov/refuges/
oil-and-gas/rulemaking.html, by
clicking on the link entitled NonFederal Oil and Gas Rulemaking
Economic Analysis or at
www.regulations.gov in Docket No.
FWS–HQ–NWRS–2012–0086.
Unfunded Mandates Reform Act
(UMRA)
This rule would not impose an
unfunded mandate on State, local, or
tribal governments or the private sector
of more than $100 million per year. The
rule would not have a significant or
unique effect on State, local, or tribal
governments or the private sector. It
addresses use of refuge lands, and
would impose no requirements on other
agencies or governments. A statement
containing the information required by
the UMRA (2 U.S.C. 1531 et seq.) is not
required.
Takings (Executive Order 12630)
This rule is not intended to result in
the taking of private property or
otherwise have takings implications
under Executive Order 12630. The
provisions of this rule would afford
access to operators exercising nonFederal mineral rights under reasonable
regulation. No other private property is
affected. A takings implication
assessment is not required.
Federalism (Executive Order 13132)
Under the criteria in section 1 of
Executive Order 13132, the rule does
not have sufficient Federalism

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Federal Register / Vol. 81, No. 219 / Monday, November 14, 2016 / Rules and Regulations
implications to warrant the preparation
of a federalism summary impact
statement. It addresses use of refuge
lands, and would impose no
requirements on other agencies or
governments. A federalism summary
impact statement is not required.
Civil Justice Reform (Executive Order
12988)
This rule complies with the
requirements of Executive Order 12988.
Specifically, this rule:
(a) Meets the criteria of section 3(a)
requiring that all regulations be
reviewed to eliminate errors and
ambiguity and be written to minimize
litigation; and
(b) Meets the criteria of section 3(b)(2)
requiring that all regulations be written
in clear language and contain clear legal
standards.

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Consultation With Indian Tribes
(Executive Order 13175 and Department
Policy)
The Department of the Interior strives
to strengthen its government-togovernment relationship with Indian
tribes through a commitment to
consultation with Indian tribes and
recognition of their right to selfgovernance and tribal sovereignty. We
have evaluated this rule under the
Department’s consultation policy and
under the criteria in Executive Order
13175 and have determined that it has
no substantial direct effects on federally
recognized Indian tribes, but we offered
consultation under the Department’s
tribal consultation policy with all
interested tribes. On January 25, 2016,
during the public comment period, we
consulted with Doyon Limited, an
Alaska Native Corporation, at their
request.
Paperwork Reduction Act of 1995 (PRA)
This rule contains a collection of
information that we have submitted to
OMB for approval under the PRA (44
U.S.C. 3501 et seq.). We may not
conduct or sponsor and you are not
required to respond to a collection of
information unless it displays a
currently valid OMB control number.
As part of our continuing efforts to
reduce paperwork and respondent
burdens, we invited the public and
other Federal agencies to comment on
any aspect of the reporting burden
associated with this information
collection. While we received no
comments that were specific to the
information collection portion of the
rule, we did receive several comments
that relate to the information collection
portion of the rule. These comments and

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our responses can be found in
Information Requirements and Public
Access to Information in the Summary
of and Response to Public Comments
portion of the preamble. We made no
changes to the information collection
portion of the rule based on these
comments. However, we have made two
changes to the rule that impact
information collection.
The first change expands the
information an operator of pre-existing
wells is required to submit to the refuge
manager. In addition to requiring
operators of pre-existing wells to submit
right-to-operate documentation,
company contact information, a plat of
existing area of operations, and copies
of plans and permits required by local,
State, and Federal agencies, operators
must also submit to the Service: A brief
description of the current operations
and any anticipated changes to the
current operations; as well as
documentation of the current operating
methods, surface equipment, and
materials produced or used. These new
information collection requirements are,
as follows: Pre-existing Operations
(§ 29.61). Within 90 days after the
effective date of these regulations, or
after a boundary change or
establishment of a new refuge, preexisting operators without a Serviceissued permit must submit:
• Documentation of the right to
operate within the refuge.
• Contact information (names, phone
numbers, and addresses) of the primary
company representative; the
representative responsible for field
supervision; and the representative
responsible for emergency response.
• A brief description of the current
operations, and any anticipated changes
to the current operations.
• Scaled map clearly delineating the
existing area of operations.
• Documentation of the current
operating methods, surface equipment,
materials produced or used, and
monitoring methods.
• Copies of all plans and permits
required by local, State, and Federal
agencies.
The second change to the final rule
that impacts information collection is
that if an operator transfers their
operations to another operator this
results in the loss of pre-existing status
for that operation, and the new operator
will need to obtain an Operations
Permit. As a result, this operator must
provide all applicable information
required by this rule for obtaining an
Operations Permit. These new
information collection requirements are
as follows:

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79969

Change of Operator (§ 29.171)
Section 29.171(a). When operations
conducted under § 29.44 are transferred,
the transferee must apply for an
operations permit and include the
information requested in FWS Form 3–
2469 within 90 days of the transfer. The
new operator may continue operating,
but must provide to the Service within
30 calendar days from the date of the
transfer:
• Documentation demonstrating that
the operator holds the right to operate
within the refuge.
• Names, phone numbers, and
addresses of the primary company
representative, the representative
responsible for field supervision, and
the representative responsible for
emergency response.
Section 29.171(b). If operations
conducted under § 29.43 or an
operations permit are transferred, the
transferee must provide the following
within 30 days of commencing
operations:
• Right-to-operate and contact
information required under § 29.171(a).
• Written agreement to conduct
operations in accordance with all terms
and conditions of the previous
operator’s permit.
• Financial assurance that is
acceptable to the Service and made
payable to the Service.
For further information on these
changes, see the ‘‘Response to
Comments’’ section.
Below is a summary of the
information collection associated with
non-Federal oil and gas operations on
National Wildlife Refuge System lands.
Operators do not need to resubmit
information that is already on file with
the Service, provided the information is
still current and accurate. Documents
and materials submitted to other Federal
and State agencies may be submitted, if
they meet the specific requirements of
the Service.
OMB Control No: 1018–0162.
Title: Management of Non-Federal Oil
and Gas Rights on National Wildlife
Refuge System Lands, 50 CFR part 29,
subpart D.
Service Form Number(s): 3–2469.
Description of Respondents:
Businesses that conduct oil and gas
exploration on national wildlife refuges.
Respondent’s Obligation: Required to
obtain or retain a benefit.
Frequency of Collection: On occasion.
Total Annual Nonhour Cost Burden:
None.

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Estimated
number of
annual
responses

Activity/requirement

Preexisting Operations (§ 29.61) .................................................................................................
Temporary Access Permit Application (§ 29.71) .........................................................................
Accessing Oil and Gas Rights from Non-Federal Surface Location (§ 29.80) ...........................
Pre-application Meeting for Operations Permit (§ 29.91) ............................................................
Operations Permit Application (§§ 29.94–29.97) .........................................................................
Financial Assurance (§§ 29.103(b), 29.150) ................................................................................
Identification of Wells and Related Facilities (§ 29.119(b)) .........................................................
Reporting (§ 29.121):
Third-Party Monitor Report (§ 29.121(b)) .............................................................................
Notification—Injuries/Mortality to Fish and Wildlife and Threatened/Endangered Plants
(§ 29.121(c)) ......................................................................................................................
Notification—Accidents involving Serious Injuries/Death and Fires/Spills (§ 29.121(d)) .....
Written Report—Accidents Involving Serious Injuries/Deaths and Fires/Spills
(§ 29.121(d)) ......................................................................................................................
Report—Verify Compliance with Permits (§ 29.121(e)) .......................................................
Notification—Chemical Disclosure of Hydraulic Fracturing Fluids uploaded to FracFocus
(§ 29.121(f)) .......................................................................................................................
Permit Modifications (§ 29.160(a)) ........................................................................................
Change of Operator:
Transferring Operator Notification (§ 29.170) .......................................................................
Acquiring Operator’s Requirements for Wells Not Under a Service Permit (§ 29.171(a)) ...
Acquiring Operator’s Acceptance of an Existing Permit (§ 29.171(b)) ................................
Extension to Well Plugging (§ 29.181(a)):
Application for Permit ...........................................................................................................
Modification ...........................................................................................................................
Public Information (§ 29.210):
Affidavit in Support of Claim of Confidentiality (§ 29.210(c) and (d)) ..................................
Confidential Information (§ 29.210(e) and (f)) ......................................................................
Maintenance of Confidential Information (§ 29.210(h)) ........................................................
Generic Chemical Name Disclosure (§ 29.210(i)) ................................................................
Total ...............................................................................................................................

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National Environmental Policy Act
(NEPA)
This rule constitutes a major Federal
action with the potential to significantly
affect the quality of the human
environment. We have prepared the
final environmental impact statement
(FEIS) under the requirements of the
NEPA of 1969 (42 U.S.C. 4321 et seq.).
The FEIS is available at http://
www.fws.gov/refuges/oil-and-gas/
rulemaking.html, by clicking on the link
entitled ‘‘Non-Federal Oil and Gas
FEIS’’ and at www.regulations.gov at
Docket No. FWS–HQ–NWRS–2012–
0086.
In addition, EPA published a notice
announcing the final EIS, as required
under section 309 of the Clean Air Act
(42 U.S.C. 7401 et seq.), on August 19,
2016, at 81 FR 55456. The EPA is
charged under section 309 of the Clean
Air Act to review all Federal agencies’
environmental impact statements (EISs)
and to comment on the adequacy and
the acceptability of the environmental
impacts of proposed actions in the EISs.
On February 9, 2016, the Service
received a ‘‘no objection’’ finding from
the EPA that concluded that the draft
EIS did not identify any potential
environmental impacts requiring

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substantive changes to the proposal.
Elsewhere in today’s Federal Register is
a notice announcing the availability of
the record of decision.
Effects on the Energy Supply (Executive
Order 13211)
This rule is not a significant energy
action under the definition in Executive
Order 13211. A statement of Energy
Effects is not required.
Drafting Information
This final rule reflects the collective
efforts of Service staff in the NWRS,
Division of Natural Resource and
Conservation Planning, Branch of
Wildlife Resources, refuges, and field
offices, with assistance from the
Department of the Interior, Office of the
Solicitor.
List of Subjects
50 CFR Part 28
Law enforcement, Penalties, Wildlife
refuges.
50 CFR Part 29
Oil and gas exploration, Public
lands—mineral resources, Public
lands—rights-of-way, Reporting and
recordkeeping requirements, Wildlife
refuges.

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Completion
time per
response
(hours)

Estimated
total annual
burden hours

40
35
5
45
45
45
45

50
17
1
2
140
1
2

2,000
595
5
90
6,300
45
90

300

17

5,100

20
20

1
1

20
20

20
240

16
4

320
960

5
10

1
16

5
160

20
19
1

8
40
8

160
760
8

10
5

140
16

1,400
80

1
1
1
1

1
1
1
1

1
1
1
1

934

........................

18,122

Final Regulation Promulgation
In consideration of the foregoing, the
Service amends 50 CFR parts 28 and 29
as follows:
PART 28—ENFORCEMENT, PENALTY,
AND PROCEDURAL REQUIREMENTS
FOR VIOLATIONS OF SUBCHAPTER C
1. The authority citation for part 28 is
revised to read as follows:

■

Authority: 5 U.S.C. 301; 16 U.S.C. 460k,
664, 668dd, 685, 690d, 715i, 725; 43 U.S.C.
315a.

2. Revise the heading of part 28 to
read as set forth above.

■
■

3. Revise § 28.11 to read as follows:

§ 28.11

Purpose of regulations.

The regulations in this part govern
enforcement, penalty, and procedural
requirements for violations of
subchapter C of this chapter.
PART 29—LAND USE MANAGEMENT
4. The authority citation for part 29 is
revised to read as follows:

■

Authority: 5 U.S.C. 301; 16 U.S.C. 460k,
664, 668dd, 685, 690d, 715i, 725, 3161; 30
U.S.C. 185; 31 U.S.C. 3711, 9701; 40 U.S.C.
319; 43 U.S.C. 315a; 113 Stat. 1501A–140.

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Federal Register / Vol. 81, No. 219 / Monday, November 14, 2016 / Rules and Regulations
Definitions
29.50 What do the terms used in this
subpart mean?

Subpart C—Mineral Operations
■

5. Revise § 29.32 to read as follows:

§ 29.32

Non-Federal mineral rights.

(a) Non-Federal mineral rights owners
within the National Wildlife Refuge
System, not including coordination
areas, must, to the greatest extent
practicable, conduct all exploration,
development, and production
operations in such a manner as to
prevent damage, erosion, pollution, or
contamination to Service-administered
lands, waters, facilities, and to wildlife
thereon. So far as is practicable, such
operations must also be conducted
without interference to the operation of
the refuge and disturbance to the
wildlife thereon.
(1) Physical occupancy must be kept
to the minimum space necessary to
conduct efficient mineral operations.
(2) Persons conducting mineral
operations on Service-administered
lands and waters must comply with all
applicable Federal and State laws and
regulations for the protection of wildlife
and the administration of the area.
(3) All waste and contaminating
substances must be kept in the smallest
practicable area, confined so as to
prevent escape as a result of rains and
high water or otherwise, and removed
from Service-administered lands and
waters as quickly as practicable in such
a manner as to prevent contamination,
pollution, damage, or injury to Serviceadministered lands, waters, or facilities,
or to wildlife thereon.
(4) Structures and equipment must be
removed when the need for them has
ended, and, upon the cessation of
operations, the habitat in the area of
operations must be restored to the
extent possible to pre-operation
conditions.
(b) Nothing in this section will be
applied so as to contravene or nullify
rights vested in holders of mineral
interests on refuge lands.
■ 6. Add subpart D to read as set forth
below:

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Subpart D—Management of Non-Federal Oil
and Gas Rights
Purpose and Scope
Sec.
29.40 What are the purpose and scope of
the regulations in this subpart?
29.41 When does this subpart apply to me?
29.42 What authorization do I need to
conduct operations?
29.43 If I am already operating under
Service authorization, what do I need to
do?
29.44 If I am operating without prior
Service authorization, what do I need to
do?

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Pre-Existing Operations
29.60 Do I need an operations permit for my
pre-existing operation?
29.61 What information must I provide to
the Service?
29.62 What if I intend to conduct new
operations or modify my pre-existing
operations?
29.63 What plugging and reclamation
requirements apply to my pre-existing
operations?
29.64 What other provisions apply to my
operations?
Temporary Access Permits
29.70 When do I need a temporary access
permit?
29.71 How do I apply for a temporary
access permit?
29.72 When will the Service grant a
temporary access permit?
29.73 How much time will I have to
conduct my reconnaissance surveys?
Accessing Oil and Gas Rights From a NonFederal Surface Location
29.80 Do I need a permit for accessing oil
and gas rights from a non-Federal
location?
Operations Permit: Application
29.90 Who must apply for an operations
permit?
29.91 What should I do before filing an
application?
29.92 May I use previously submitted
information?
29.93 Do I need to submit information for
all possible future operations?
29.94 What information must be included
in all applications?
29.95 What additional information must be
included if I am proposing geophysical
exploration?
29.96 What additional information must be
included if I am proposing drilling
operations?
29.97 What additional information must be
included if I am proposing production
operations?
Operations Permit: Application Review and
Approval
29.100 How will the Service process my
application?
29.101 How will the Service conduct an
initial review?
29.102 How will the Service conduct a
formal review?
29.103 What standards must be met to
approve my application?
29.104 What actions may the Service take
on my operations permit application?
Operating Standards
29.110 What are the purposes of the
Service’s operating standards?
29.111 What general facility design and
management standards must I meet?
29.112 What fish and wildlife protection
standards must I meet?
29.113 What hydrologic standards must I
meet?

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79971

29.114 What safety standards must I meet?
29.115 What lighting and visual standards
must I meet?
29.116 What noise reduction standards
must I meet?
29.117 What reclamation and protection
standards must I meet?
29.118 What additional operating standards
apply to geophysical operations?
29.119 What additional operating standards
apply to drilling and production
operations?
General Terms and Conditions
29.120 What terms and conditions apply to
all operators?
29.121 What monitoring and reporting is
required for all operators?
29.122 For how long is my operations
permit valid?
Access Fees
29.140 May I cross Federal property to
reach the boundary of my oil and gas
right?
29.141 Will the Service charge me a fee for
access?
29.142 Will I be charged a fee for
emergency access to my operations?
Financial Assurance
29.150 When do I have to provide financial
assurance to the Service?
29.151 How does the Service establish the
amount of financial assurance?
29.152 Will the Service adjust the amount
required for my financial assurance?
29.153 When will the Service release my
financial assurance?
29.154 Under what circumstances will I
forfeit my financial assurance?
Modification to an Operation
29.160 Can I modify operations under an
approved permit?
Change of Operator
29.170 What are my responsibilities if I
transfer my right to operate?
29.171 What must I do if operations are
transferred to me?
Well Plugging
29.180 When must I plug my well?
29.181 Can I get an extension to the well
plugging requirement?
Prohibited Acts and Penalties
29.190 What acts are prohibited under this
subpart?
29.191 What enforcement actions can the
Service take?
29.192 How do violations affect my ability
to obtain a permit?
Appeals
29.200 Can I, as operator, appeal Service
decisions?
Public Information
29.210 How can the public learn about oil
and gas activities on refuge lands?
Information Collection
29.220 Has the Office of Management and
Budget approved the collection of
information?

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§ 29.43 If I am already operating under
Service authorization, what do I need to do?

Subpart D—Management of NonFederal Oil and Gas Rights
Purpose and Scope
§ 29.40 What are the purpose and scope of
the regulations in this subpart?

(a) The purpose of this subpart is to
ensure that operators exercising nonFederal oil and gas rights within the
National Wildlife Refuge System
(NWRS) outside of Alaska use
technologically feasible, least damaging
methods to:
(1) Protect Service-administered lands
and waters, and resources of refuges;
(2) Protect refuge wildlife-dependent
recreational uses and experiences and
visitor or employee health and safety;
and
(3) Conserve refuges for the benefit of
present and future generations of
Americans.
(b) This subpart applies to all
operators conducting non-Federal oil
and gas operations outside of Alaska on
Service-administered lands held in fee
or less-than fee (excluding coordination
areas) or Service-administered waters to
the extent necessary to protect those
property interests. These regulations do
not apply to non-Federal surface
locations within the boundaries of a
refuge (i.e., inholdings), except to the
extent that activities associated with
those operations, including access to an
inholding, occur on Serviceadministered lands or waters.
(c) This subpart is not intended to
result in a taking of any property
interest. The purpose of this subpart is
to reasonably regulate operations to
protect Service-administered lands and
waters, resources of refuges, visitor uses
and experiences, and visitor or
employee health and safety.
§ 29.41
me?

When does this subpart apply to

This subpart applies to you if you are
an operator who conducts or proposes
to conduct non-Federal oil or gas
operations on Service-administered
lands or waters outside of Alaska.

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§ 29.42 What authorization do I need to
conduct operations?

(a) You must demonstrate to the
Service that you have the right to
operate in order to conduct operations
on Service-administered lands or
waters.
(b) Except as provided in §§ 29.43 or
29.44, before starting operations, you
must obtain a temporary access permit
under §§ 29.70 through 29.73 for
reconnaissance surveys and/or an
operations permit under §§ 29.90
through 29.97.

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If you already have a Service-issued
permit, you may continue to operate
according to the terms and conditions of
that approval, subject to the provisions
of this subpart. If you propose to
conduct new operations, modify your
existing operations, conduct well
plugging or reclamation operations, or
obtain an extension of the well plugging
requirement to maintain your well in
shut-in status, you must either amend
your current authorization or obtain an
operations permit in accordance with
§§ 29.90 through 29.97, Operations
Permit: Application, and such new
operations or modifications will be
subject to the applicable provisions of
this subpart. Additionally, your existing
operations are subject to the following
regulations:
(a) § 29.120(b) and (d)–(g) and
§ 29.121(a) and (c)–(f);
(b) § 29.170(a);
(c) §§ 29.180 and 29.181;
(d) § 29.190; and
(e) § 29.200.
§ 29.44 If I am operating without prior
Service authorization, what do I need to do?

Any operator that has commenced
operations prior to December 14, 2016
in accordance with applicable local,
State, and Federal laws and regulations
may continue without an operations
permit. However, your operation is
subject to the requirements of §§ 29.60
through 29.64, Pre-Existing Operations,
and the requirements that when you
propose to conduct new operations,
modify your pre-existing operations,
conduct well plugging and reclamation
operations, or obtain an extension of the
well plugging requirement to maintain
your well in shut-in status, you must
obtain an operations permit in
accordance with §§ 29.90 through 29.97,
Operations Permit: Application, and all
applicable requirements of this subpart.
Definitions
§ 29.50 What do the terms used in this
subpart mean?

In addition to the definitions in
§§ 25.12, 29.21, and 36.2 of this
subchapter, the following definitions
apply to this subpart:
Access means any method of entering
or traversing on or across Serviceadministered lands or waters, including
but not limited to: Vehicle, watercraft,
fixed-wing aircraft, helicopter,
unmanned aerial vehicle, off-road
vehicle, mobile heavy equipment,
snowmobile, pack animal, and foot.
Access does not include the use of
aircraft, including, but not limited to,
airplanes, helicopters, and unmanned

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aircraft vehicles, that do not land on, or
are not launched from, Serviceadministered lands or waters.
Area of operations means the area of
Service-administered lands or waters on
which operations are carried out,
including roads or other areas that you
are authorized to use related to the
exercise of your oil and gas rights.
Contaminating substance means any
toxic or hazardous substance that is
used in or results from the conduct of
operations and is listed under the Clean
Air Act (42 U.S.C. 7401 et seq.), Clean
Water Act regulations at 40 CFR parts
112 and 116, the Resource Conservation
and Recovery Act regulations at 40 CFR
part 261, or the Hazardous Materials
Transportation Act regulations at 49
CFR part 172. This includes, but is not
limited to, explosives, radioactive
materials, brine waters, formation
waters, petroleum products, petroleum
byproducts, and chemical compounds
used for drilling, production,
processing, well testing, well
completion, and well servicing.
Gas means any fluid, either
combustible or noncombustible, that is
produced in a natural state from the
earth and that maintains a gaseous or
rarefied state at ordinary temperature
and pressure conditions.
Oil means any viscous combustible
liquid hydrocarbon or solid
hydrocarbon substance that occurs
naturally in the earth and is easily
liquefiable on warming.
Modifying means changing operations
in a manner that will result in
additional impacts on refuge resources,
visitor uses, refuge administration, or
human health and safety beyond the
scope, intensity, and/or duration of
existing impacts. In order to determine
if activities would have additional
impacts, you must consult with the
Service.
Operations means all existing and
proposed functions, work, and activities
in connection with the exercise of oil or
gas rights not owned by the United
States and located on Serviceadministered lands or waters.
(1) Operations include, but are not
limited to: Access by any means to or
from an area of operations; construction;
geological and geophysical exploration;
drilling, well servicing, workover, or
recompletion; production; hydraulic
fracturing, well simulation, and
injection wells; gathering (including
installation and maintenance of
flowlines and gathering lines); storage,
transport, or processing of petroleum
products; earth moving; excavation;
hauling; disposal; surveillance,
inspection, monitoring, or maintenance
of wells, facilities, and equipment;

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Federal Register / Vol. 81, No. 219 / Monday, November 14, 2016 / Rules and Regulations
reclamation; road and pad building or
improvement; shot hole and well
plugging and abandonment, and
reclamation; and all other activities
incident to any of the foregoing.
(2) Operations do not include
reconnaissance surveys as defined in
this subpart or oil and gas pipelines that
are located within a refuge under
authority of a deeded or other right-ofway.
Operations permit means a permit
issued by the Service under this subpart
authorizing an operator to conduct
operations on Service-administered
lands or waters.
Operator means any person or entity,
agent, assignee, designee, lessee, or
representative thereof exercising or
proposing to exercise non-Federal oil
and gas rights on Service-administered
lands or waters.
Reconnaissance survey means an
inspection or survey conducted by
qualified specialists for the purpose of
preparing a permit application. A
reconnaissance survey:
(1) Includes identification of the area
of operations and collection of natural
and cultural resource information
within and adjacent to the proposed
area of operations.
(2) Does not include surface
disturbance activities except for
minimal disturbance necessary to
perform cultural resource surveys,
natural resource surveys, and location
surveys required under this subpart.
Right to operate means a deed, lease,
memorandum of lease, designation of
operator, assignment of right, or other
documentation demonstrating that you
hold a legal right to conduct the
operations you are proposing on
Service-administered lands or waters.
Service, we, us and our means the
U.S. Fish and Wildlife Service.
Technologically feasible, least
damaging methods are those that we
determine, on a case-by-case basis, to be
most protective of refuge resources and
uses while ensuring human health and
safety, taking into consideration all
relevant factors, including
environmental, economic, and
technological factors and the
requirements of applicable law.
Temporary access permit means a
permit issued by the Service authorizing
an operator to access that operator’s
proposed area of operations to conduct
reconnaissance surveys to collect basic
information necessary to prepare an
operations permit application.
Third-party monitor means a qualified
specialist, who is not an employee,
agent, or representative of the operator,
nor has any conflicts of interest that
could preclude objectivity in monitoring

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an operator’s compliance, and who has
the relevant expertise to monitor
operations for compliance with
applicable laws, regulations, and permit
requirements.
Usable water means an aquifer or its
portion that:
(1)(i) Supplies any public water
system; or
(ii) Contains a sufficient quantity of
ground water to supply a public water
system and either:
(A) Currently supplies drinking water
for human consumption; or
(B) Contains fewer than 10,000 mg/l
total dissolved solids; and
(2) Is not an exempted aquifer.
Waste means any material that is
discarded. It includes, but is not limited
to: Drilling fluids and cuttings;
produced fluids not under regulation as
a toxic or hazardous substance; human
waste; garbage; fuel drums; pipes; oil;
refined oil and other hydrocarbons;
contaminated soil; synthetic materials;
manmade structures or equipment; or
native and nonnative materials.
You means the operator, unless
otherwise specified or indicated by the
context.
Pre-Existing Operations
§ 29.60 Do I need an operations permit for
my pre-existing operation?

No. Pre-existing operations are those
conducted as of December 14, 2016
without an approved permit from the
Service or prior to a boundary change or
establishment of a new refuge. Your preexisting operations may be continued
without an operations permit, but you
are required to operate in accordance
with applicable local, State, and Federal
laws and regulations, and are subject to
applicable provisions of this subpart,
including requirements for a permit
when you propose to conduct new
operations or to modify pre-existing
operations.
§ 29.61 What information must I provide to
the Service?

You must submit the following
information to the Service where your
pre-existing operation is occurring by
February 13, 2017 or 90 days after a
boundary change or establishment of a
new refuge:
(a) Documentation demonstrating that
you hold the right to operate on Serviceadministered lands or waters.
(b) The names, phone numbers, and
addresses of your:
(1) Primary company representative;
(2) Representative responsible for
field supervision; and
(3) Representative responsible for
emergency response.

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(c) A brief description of your current
operations, and any anticipated changes
to current operations, including:
(1) A scaled map clearly delineating
your existing area of operations;
(2) Documentation of the current
operating methods, surface equipment,
materials produced or used, and
monitoring methods; and
(3) Copies of all plans and permits
required by local, State, and Federal
agencies, including a Spill Prevention
Control and Countermeasure Plan if
required by Environmental Protection
Agency regulations at 40 CFR part 112.
§ 29.62 What if I intend to conduct new
operations or modify my pre-existing
operations?

(a) You must obtain an operations
permit before conducting operations
that are begun after December 14, 2016
for those new operations in accordance
with §§ 29.90 through 29.97, Operations
Permit: Application, and all applicable
requirements of this subpart.
(b) You must obtain an operations
permit prior to modifying your preexisting operations for that modification
in accordance with §§ 29.90 through
29.97, Operations Permit: Application,
and all applicable requirements of this
subpart.
§ 29.63 What plugging and reclamation
requirements apply to my pre-existing
operations?

Upon completion of your production
operation, you are subject to the
reclamation standards in § 29.117(d).
You must obtain an operations permit in
accordance with §§ 29.90 through 29.97,
Operations Permit: Application, and all
applicable requirements of this subpart,
prior to plugging your well and
conducting site reclamation.
§ 29.64 What other provisions apply to my
operations?

Your pre-existing operations are also
subject to the following regulations in
this part 29:
(a) § 29.120(b), (d), (f), and (g) and
§ 29.121(a) and (c)–(f);
(b) § 29.170(a);
(c) §§ 29.180 and 29.181;
(d) § 29.190; and
(e) § 29.200.
Temporary Access Permits
§ 29.70 When do I need a temporary
access permit?

You must apply to the Service and
obtain a temporary access permit to
access your proposed area of operations
in order to conduct reconnaissance
surveys within a refuge. This permit
will describe the means, routes, timing,
and other terms and conditions of your
access determined by the Service to

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result in only the minimum disturbance
necessary to perform surveys.

Accessing Oil and Gas Rights From a
Non-Federal Surface Location

§ 29.71 How do I apply for a temporary
access permit?

§ 29.80 Do I need a permit for accessing
oil and gas rights from a non-Federal
location?

You must submit the information
requested in FWS Form 3–2469 (Oil and
Gas Operations Special Use Permit
Application) to the refuge in which you
propose to conduct operations.
Information includes, but is not limited
to:
(a) The name, legal address, and
telephone number of the operator,
employee, agent, or contractor
responsible for overall management of
the proposed operations;
(b) Documentation demonstrating that
you hold the right to operate on Serviceadministered lands or waters;
(c) The name, legal address, telephone
number, and qualifications of all
specialists responsible for conducting
the reconnaissance surveys (only
required if the assistants/
subcontractors/subpermittees will be
operating on Service-administered lands
or waters without the permittee being
present);
(d) A brief description of the intended
operation so that we can determine
reconnaissance survey needs;
(e) A description of the survey
methods you intend to use to identify
the natural and cultural resources;
(f) A map (to-scale and determined by
us to be acceptable) delineating the
proposed reconnaissance survey area in
relation to the refuge boundary and the
proposed area of operations; and
(g) A description of proposed means
of access and routes for conducting the
reconnaissance surveys.
§ 29.72 When will the Service grant a
temporary access permit?

Within 30 calendar days of receipt of
the application for a reconnaissance
survey, we will advise you whether the
application fulfills the requirements of
§§ 29.70 through 29.71 and issue you a
temporary access permit or provide you
with a statement of additional
information that is needed for us to
conduct review of your application.

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§ 29.73 How much time will I have to
conduct my reconnaissance surveys?

Your temporary access permit will be
in effect for a maximum of 60 calendar
days from the date of issuance, unless
a longer term is approved in the permit.
We may extend the term of the permit
for a reasonable period of time, based
upon your written request that explains
why an extension is necessary.

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No. Using directional drilling from a
non-Federal surface location to reach
your oil and gas rights within a refuge
is exempt from these regulations.
However, you are encouraged to provide
the Service the names, phone numbers,
and addresses of your primary company
representative, representative
responsible for field supervision, and
representative responsible for
emergency response at least 60 calendar
days prior to conducting your operation.
If you require access across Serviceadministered lands or waters, that
access is subject to applicable
provisions of this subpart, including
obtaining an operations permit for any
new access or modification of existing
access.
Operations Permit: Application
§ 29.90 Who must apply for an operations
permit?

Except as otherwise provided in
§§ 29.43, 29.44, 29.70, and 29.80, if you
are proposing to conduct operations on
Service-administered lands or waters
outside of Alaska, you must submit an
application (FWS Form 3–2469) for an
operations permit to the Service.
§ 29.91 What should I do before filing an
application?

You should participate in a preapplication meeting with the Service to
allow for an early exchange of
information between you and the
Service with the intent of avoiding
delays in your application process.
(a) For the meeting, you should
provide:
(1) Documentation demonstrating that
you hold the legal right to operate on
Service-administered lands or waters;
and
(2) An overview of your proposed
operation and timing.
(b) The Service will provide guidance
on the permitting process and
information on available resource data,
and identify additional data needs.
§ 29.92 May I use previously submitted
information?

Yes.
(a) You do not need to resubmit
information that is already on file with
the Service, provided that such
information is still current and accurate.
You should reference this information
in your oil and gas operations permit
application.
(b) You may submit documents and
materials submitted to other Federal and

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State agencies noting how the
information meets the specific
requirements of §§ 29.93 through 29.97.
§ 29.93 Do I need to submit information for
all possible future operations?

No. You need only provide
information for those operations for
which you are seeking immediate
approval. Approval of activities beyond
the scope of your application may be
subject to a new application and
approval process.
§ 29.94 What information must be included
in all applications?

All applications must include the
information requested on FWS Form 3–
2469, including, but not limited to:
(a) The name, legal address, and
telephone number of the operator,
employee, agent, or contractor
responsible for overall management of
the proposed operations.
(b) Documentation demonstrating that
you hold the legal right to operate
within the refuge.
(c) A description of the natural
features of your proposed area of
operations, such as: Streams, lakes,
ponds, wetlands, estimated depths to
the top and bottom of zones of usable
water and topographic relief.
(d) The location of existing roads,
trails, railroad tracks, pipeline rights-ofway, pads, and other disturbed areas.
(e) The location of existing structures
that your operations could affect,
including buildings, pipelines, oil and
gas wells including both producing and
plugged and abandoned wells, injection
wells, freshwater wells, underground
and overhead electrical lines, and other
utility lines.
(f) Descriptions of the natural and
cultural resource conditions from your
reconnaissance survey reports or other
sources collected for your proposed area
of operations, including any baseline
testing of soils and surface and nearsurface ground waters within your area
of operations that reasonably may be
impacted by your surface operations.
(g) Locations map(s) (to-scale and
determined by us to be acceptable) that
clearly identifies:
(1) Proposed area of operations,
existing conditions, and proposed new
surface uses, including the boundaries
of each of your oil and gas tracts in
relation to your proposed operations
and the relevant refuge boundary.
(2) Proposed access routes of new
surface disturbances as determined by a
location survey.
(3) Proposed location of all support
facilities, including those for
transportation (e.g., vehicle parking
areas, helicopter pads, etc.), sanitation,

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occupation, staging areas, fuel storage
areas, refueling areas, loading docks,
water supplies, and disposal facilities.
(h) The method and diagrams,
including cross-sections, of any
proposed pad construction, road
construction, cut-and-fill areas, and
surface maintenance, including erosion
control.
(i) The number and types of
equipment and vehicles, including an
estimate of vehicular round trips
associated with your operation.
(j) An estimated timetable for the
proposed operations, including any
operational timing constraints.
(k) The type and extent of security
measures proposed at your area of
operations.
(l) The power sources and their
transmission systems for the proposed
operations.
(m) The types and quantities of all
solid and liquid waste generated and the
proposed methods of storage, handling,
and disposal.
(n) The source, quantity, access route,
and transportation/conveyance method
for all water to be used in operations,
including hydraulic fracturing, and
estimations of any anticipated
wastewater volumes generated,
including flowback fluids from
hydraulic fracturing, and the proposed
methods of storage, handling, and
recycling or disposal.
(o) The following information
regarding mitigation actions and
alternatives considered:
(1) A description of the steps you
propose to take to mitigate anticipated
adverse environmental impacts on
refuge resources and uses, including,
but not limited to, the refuge’s land
features, land uses, fish and wildlife,
vegetation, soils, surface and subsurface
water resources, air quality, noise,
lightscapes, viewsheds, cultural
resources, and economic environment.
(2) A description of any anticipated
impacts that you cannot mitigate.
(3) A description of alternatives
considered that meet the criteria of
technologically feasible, least damaging
methods of operations, as well as the
costs and environmental effects of such
alternatives.
(p) You must submit the following
information about your spill control and
emergency preparedness plan. You may
use a spill prevention control and
countermeasure plan prepared under 40
CFR part 112 if the plan includes all of
the information required by this section.
You must submit:
(1) The names, addresses, and
telephone numbers of the people whom
the Service can contact in the event of
a spill, fire, or accident, including the

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order in which the individuals should
be contacted.
(2) The notification procedures and
steps taken to minimize damage in the
event of a spill, fire, or accident.
(3) Identification of contaminating
substances used within your area of
operations or expected to be
encountered during operations.
(4) Trajectory analysis for potential
spills that are not contained on location.
(5) Identification of abnormal
pressure, temperature, toxic gases or
substances, or other hazardous
conditions at your area of operations or
expected to be encountered during
operations.
(6) Measures (e.g., procedures, facility
design, equipment) to minimize risks to
human health and safety, and the
environment.
(7) Steps to prevent accumulations of
oil or other materials deemed to be fire
hazards from occurring in the vicinity of
well locations and lease tanks.
(8) The equipment and methods for
containment and cleanup of
contaminating substances, including a
description of the equipment available
at your area of operations and
equipment available from local
contractors.
(9) A stormwater drainage plan and
actions intended to mitigate stormwater
runoff.
(10) Material safety data sheets for
each material you will use or encounter
during operations, including expected
quantities maintained at your area of
operations.
(11) A description of the emergency
actions you will take in the event of
injury or death to fish and wildlife or
vegetation.
(12) A description of the emergency
actions you will take in the event of
accidents causing human injury.
(13) Contingency plans for conditions
and emergencies other than spills, such
as if your area of operations is located
in areas prone to hurricanes, flooding,
tornadoes, fires, or earthquakes.
(q) A description of the specific
equipment, materials, methods, and
schedule that will be used to meet the
operating standards for reclamation at
§ 29.117.
(r) An itemized list of the estimated
costs that a third party would charge to
complete reclamation.
§ 29.95 What additional information must
be included if I am proposing geophysical
exploration?

If you propose to conduct geophysical
exploration, you must submit the
information requested on FWS Form 3–
2469, including, but not limited to:
(a) A map showing the positions of
each survey line including all source

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and receiver locations as determined by
a locational survey, and including shot
point offset distances from wells,
buildings, other infrastructure, cultural
resources, and environmentally
sensitive areas;
(b) The number of crews and numbers
of workers in each crew;
(c) A description of the acquisition
methods, including the procedures and
specific equipment you will use, and
energy sources (e.g., explosives,
vibroseis trucks);
(d) A description of the methods of
access along each survey line for
personnel, materials, and equipment;
and
(e) A list of all explosives, blasting
equipment, chemicals, and fuels you
will use in the proposed operations,
including a description of proposed
disposal methods, transportation
methods, safety measures, and storage
facilities.
§ 29.96 What additional information must
be included if I am proposing drilling
operations?

If you are proposing to drill a well,
you must submit the information
requested on FWS Form 3–2469,
including, but not limited to:
(a) A description of the well pad
construction, including dimensions and
cross sections of cut-and-fill areas and
excavations for ditches, sumps, and
spill control equipment or structures,
including lined areas;
(b) A description of the drill rig and
equipment layout, including rig
components, fuel tanks, testing
equipment, support facilities, storage
areas, and all other well-site equipment
and facilities;
(c) A description of the type and
characteristics of the proposed drilling
mud systems; and
(d) A description of the equipment,
materials, and methods of surface
operations associated with your drilling,
well casing and cementing, well control,
well evaluation and testing, well
completion, hydraulic fracturing or
other well stimulation, and well
plugging programs.
§ 29.97 What additional information must
be included if I am proposing production
operations?

If you are proposing to produce a
well, you must submit the information
requested on FWS Form 3–2469,
including, but not limited to:
(a) The dimensions and the to-scale
layout of the well pad, clearly
identifying well locations, noting partial
reclamation areas; gathering, separation,
metering, and storage equipment;
electrical lines; fences; spill control

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equipment or structures, including lined
areas, artificial lift equipment, tank
batteries, treating and separating
vessels, secondary or enhanced recovery
facilities, water disposal facilities, gas
compression and/or injection facilities;
metering points; sales point (if on lease);
tanker pickup points; gas compressor,
including size and type (if applicable);
and any other well site equipment.
(b) A general description of
anticipated stimulations, servicing, and
workovers.
(c) A description of the procedures
and equipment used to maintain well
control.
(d) A description of the method and
means used to transport produced oil
and gas, including vehicular transport;
flowline and gathering line construction
and operation, pipe size, and operating
pressure; cathodic protection methods;
surface equipment use; surface
equipment location; maintenance
procedures; maintenance schedules;
pressure detection methods; and
shutdown procedures.
(e) A road and well pad maintenance
plan, including equipment and
materials to maintain the road surface
and control erosion.
(f) A vegetation management plan on
well sites, roads, pipeline corridors, and
other disturbed surface areas, including
control of noxious and invasive species.
(g) A stormwater management plan on
the well site.
(h) A produced water storage and
disposal plan.
(i) A description of the equipment,
materials, and procedures proposed for
well plugging.
Operations Permit: Application Review
and Approval
§ 29.100 How will the Service process my
application?

We will conduct initial review of your
application to determine if all
information is complete. Once your
information is complete, we will begin
formal review.

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§ 29.101 How will the Service conduct an
initial review?

(a) Within 30 calendar days of receipt
of your application, the Service will
notify you in writing that one of the
following situations exists:
(1) Your application is complete, and
the Service will begin formal review;
(2) Your application does not meet the
information requirements, in which case
we will identify the additional
information required to be submitted
before the Service will be able to
conduct formal review of your
application; or

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(3) More time is necessary to complete
the review, in which case the Service
will provide the amount of additional
time reasonably needed along with a
justification.
(b) If you submit additional
information as requested under
paragraph (a)(2) of this section, and the
Service determines that you have met
all applicable information requirements,
the Service will notify you within 30
calendar days from receipt of the
additional information that either:
(1) Your application is complete, and
the Service will begin formal review; or
(2) More time is necessary to complete
the initial review, in which case the
Service will provide the amount of
additional time reasonably needed along
with a justification.
§ 29.102 How will the Service conduct a
formal review?

For those applications for which the
Service determines that the applicant
holds a valid property right, the Service
will conduct a formal review of your
application by:
(a) Evaluating the potential impacts of
your proposal on Service-administered
lands and waters, or resources of
refuges; visitor uses or experiences; or
visitor or employee health and safety in
compliance with applicable Federal
laws; and
(b) Identifying any additional
operating conditions that would apply
to your approved application.
§ 29.103 What standards must be met to
approve my application?

(a) In order to approve your
operations permit application, the
Service must determine that your
operations will:
(1) Use technologically feasible, least
damaging methods; and
(2) Meet all applicable operating
standards.
(b) Before operations begin, you must
submit to the Service:
(1) Financial assurance in the amount
specified by the Service and in
accordance with the requirements of
§§ 29.150 through 29.154, Financial
Assurance;
(2) Proof of liability insurance with
limits sufficient to cover injuries to
persons or property caused by your
operations; and
(3) A statement under penalty of
perjury, signed by an official who is
authorized to legally bind the company,
stating that proposed operations are in
compliance with any applicable Federal
law or regulation or any applicable State
law or regulation related to non-Federal
oil and gas operations and that all
information submitted to the Service is
true and correct.

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§ 29.104 What actions may the Service
take on my operations permit application?

(a) We will make a decision on your
application within 180 days from the
date we deem your application
complete unless:
(1) We and you agree that such
decision will occur within a shorter or
longer period of time; or
(2) We determine that an additional
period of time is required to ensure that
we have, in reviewing the permit
application, complied with all
applicable legal requirements.
(b) We will notify you in writing that
your permit application is:
(1) Approved, with or without
operating conditions; or
(2) Denied, and provide justification
for the denial. Any such denial must be
consistent with § 29.40(c).
Operating Standards
§ 29.110 What are the purposes of the
Service’s operating standards?

The purposes are to:
(a) Protect Service-administered lands
and waters, and refuge resources;
wildlife-dependent visitor uses and
experiences; and visitor and employee
health and safety; and
(b) Ensure use of technologically
feasible, least damaging methods. The
operating standards give us and the
operator flexibility to consider using
alternative methods, equipment,
materials design, and conduct of
operations.
§ 29.111 What general facility design and
management standards must I meet?

As a permittee, you must:
(a) Design, construct, operate, and
maintain access to your operational site
to cause the minimum amount of
surface disturbance needed to safely
conduct operations and to avoid areas
we have identified as containing
sensitive resources.
(b) Install and maintain secondary
containment materials and structures for
all equipment and facilities using or
storing contaminating substances. The
containment system must be sufficiently
impervious to prevent discharge and
must have sufficient storage capacity to
contain, at a minimum, the largest
potential spill incident.
(c) Keep temporarily stored waste in
the smallest area feasible, and confine
the waste to prevent escape as a result
of percolation, rain, high water, or other
causes. You must regularly remove
waste from the refuge and lawfully
dispose of the waste in a direct and
workable timeframe. You may not
establish a solid waste disposal site on
a refuge.

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(d) Use engines that adhere to
applicable Federal and State emission
standards.
(e) Construct, maintain, and use roads
in a manner to minimize fugitive dust
emissions.
(f) Design, operate, and maintain your
operations and equipment in a manner
consistent with good air pollution
control practices so as to minimize
emissions and leaks of air pollutants
and hydrocarbons, including intentional
releases or flaring of gases.
(g) Control the invasion of noxious
and invasive plant and animal species
in your area of operations from the
beginning through final reclamation.
(h) Avoid conducting grounddisturbing operations within 500 feet of
any surface water, including an
intermittent or ephemeral watercourse,
or wetland, or any refuge structure or
facility used by refuges for
interpretation, public recreation, or
administration. We may increase or
decrease this distance consistent with
the need to protect Service-administered
structures or facilities, visitor uses or
experiences, or visitor or employee
health and safety; or to ensure that you
have reasonable access to your nonFederal oil and gas. Measurements for
purposes of this paragraph are by map
distance.
§ 29.112 What fish and wildlife protection
standards must I meet?

To protect fish and wildlife resources
on the refuge, you must:
(a) Along with your employees and
contractors, adhere to all refuge
regulations for the protection of fish,
wildlife, and plants;
(b) Ensure that you, your employees,
and contractors have been informed and
educated by the refuge staff on the
appropriate protection practices for
wildlife conservation;
(c) Conduct operations in a manner
that does not create an unsafe
environment for fish and wildlife by
avoiding or minimizing exposure to
physical and chemical hazards; and
(d) Conduct operations in a manner
that avoids or minimizes impacts to
sensitive wildlife, including timing and
location of operations.

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§ 29.113
meet?

What hydrologic standards must I

You must:
(a) Construct facilities in a manner
that maintains hydrologic movement
and function.
(b) Not cause measurable degradation
of surface water or groundwater beyond
that of existing conditions.
(c) Conduct operations in a manner
that maintains natural processes of
erosion and sedimentation.

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§ 29.114
meet?

What safety standards must I

To ensure the safety of your
operations, you must:
(a) Maintain your area of operations in
a manner that avoids or minimizes the
cause or spread of fire and does not
intensify fire originating outside your
operations area;
(b) Maintain structures, facilities,
improvements, and equipment in a safe
and professional manner in order not to
create an unsafe environment for refuge
resources, visitors, and employees, by
avoiding or minimizing exposure to
physical and chemical hazards; and
(c) Provide site-security measures to
protect visitors from hazardous
conditions resulting from your
operations.
§ 29.115 What lighting and visual
standards must I meet?

(a) You must design, shield, and focus
lighting to minimize the effects of spill
light on the night sky or adjacent areas;
and
(b) You must reduce visual contrast in
the landscape in selecting the area of
operations, avoiding unnecessary
disturbance, choosing appropriate
colors and materials for roads and
permanent structures, and other means.
§ 29.116 What noise reduction standards
must I meet?

You must prevent or minimize all
noise that:
(a) Adversely affects refuge resources
or uses, taking into account frequency,
magnitude, or duration; or
(b) Exceeds levels that have been
identified through monitoring as being
acceptable to or appropriate for uses at
the sites being monitored.
§ 29.117 What reclamation and protection
standards must I meet?

(a) You must promptly clean up and
remove from the refuge any released
contaminating substances in accordance
with all applicable Federal, State, and
local laws.
(b) You must perform partial
reclamation of areas that are no longer
necessary to conduct operations. You
must begin final reclamation within 6
months after you complete your
authorized operations unless we
authorize a different reclamation period
in writing.
(c) You must protect all survey
markers (e.g., monuments, witness
corners, reference monuments, and
bearing trees) against destruction,
obliteration, or damage from operations.
You are responsible for reestablishment,
restoration, and referencing of any
monuments, corners, and bearing trees

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that are destroyed, obliterated, or
damaged by your operations.
(d) You must complete reclamation
by:
(1) Plugging all wells;
(2) Removing all above-ground
structures, equipment, roads, and all
other manmade material and debris
resulting from operations;
(3) Removing or neutralizing any
contaminating substances;
(4) Reestablishing native vegetative
communities, or providing for
conditions where ecological processes
typical of the ecological zone (e.g., plant
or wildlife succession) will reestablish
themselves;
(5) Grading to conform the contours to
pre-existing elevations as necessary to
maximize ecological function;
(6) Restoring conditions to predisturbance hydrologic movement and
functionality;
(7) Restoring natural systems using
native soil material that is similar in
character to the adjacent undisturbed
soil profiles;
(8) Ensuring that reclamation does not
interfere with visitor use or with
administration of the refuge;
(9) Attaining conditions that are
consistent with the management
objectives of the refuge, designed to
meet the purposes for which the refuge
was established; and
(10) Coordinating with us or with
other operators who may be using a
portion of your area of operations to
ensure proper and equitable
apportionment of reclamation
responsibilities.
§ 29.118 What additional operating
standards apply to geophysical operations?

If you conduct geophysical
operations, you must do all of the
following:
(a) Use surveying methods that
minimize the need for vegetative
trimming and removal.
(b) Locate source points using
industry-accepted minimum safe-offset
distances from pipelines, telephone
lines, railroad tracks, roads, power lines,
water wells, oil and gas wells, oil- and
gas-production facilities, and buildings.
(c) Use equipment and methods that,
based upon the specific environment,
will minimize impacts to Serviceadministered lands and waters, and
resources of refuges; visitor uses and
experiences; and visitor and employee
health and safety.
(d) If you use shot holes, you must:
(1) Use biodegradable charges;
(2) Plug all shot holes to prevent a
pathway for migration for fluids along
any portion of the bore; and
(3) Leave the site in a clean and safe
condition that will not impede surface

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reclamation or pose a hazard to wildlife
or human health and safety.

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§ 29.119 What additional operating
standards apply to drilling and production
operations?

If you conduct drilling and
production operations, you must meet
all of the following standards:
(a) To conduct drilling operations,
you must:
(1) Use containerized mud circulation
systems for operations;
(2) Not create or use earthen pits;
(3) Take all necessary precautions to
keep your wells under control at all
times, using only employees,
contractors, or subcontractors trained
and competent in well control
procedures and equipment operation,
and using industry-accepted well
control equipment and practices; and
(4) Design, implement, and maintain
integrated casing, cementing, drilling
fluid, completion, stimulation, and
blowout prevention programs to prevent
escape of fluids to the surface and to
isolate and protect usable water zones
throughout the life of the well, taking
into account all relevant geologic and
engineering factors.
(b) To conduct production operations,
in addition to meeting the standards of
paragraphs (a)(1) through (a)(4) of this
section, you must do all of the
following:
(1) Monitor producing conditions for
early indications that could lead to loss
of mechanical integrity of producing
equipment.
(2) Maintain all surface equipment
and the wellhead to prevent leaks or
releases of any fluids or air pollutants.
(3) Identify wells and related facilities
with appropriate signage. Signs must
remain in place until the well is plugged
and abandoned and the related facilities
are removed. Signs must be of durable
construction, and the lettering must be
legible and large enough to be read
under normal conditions at a distance of
at least 50 feet. Each sign must show the
name of the well, name of the operator,
and the emergency contact phone
number.
(4) Remove all equipment and
materials when not needed for the
current phase of your operation.
(5) Plug all wells, leaving the surface
in a clean and safe condition that will
not impede surface reclamation or pose
a hazard to wildlife or human health
and safety, in accordance with § 29.117.
General Terms and Conditions
§ 29.120 What terms and conditions apply
to all operators?

The following terms and conditions
apply to all operators, regardless of

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whether these terms and conditions are
expressly included in the permit:
(a) You must comply with all
applicable operating standards in
§§ 29.111 through 29.119; these
operating standards will be incorporated
in the terms and conditions of your
operations permit. Violation of these
operating standards, unless otherwise
provided in your operations permit, will
subject you to the Prohibited Acts and
Penalties provisions of §§ 29.190
through 29.192.
(b) You are responsible for ensuring
that all of your employees, agents,
contractors, and subcontractors comply
fully with the requirements of this
subpart.
(c) You may be required to reimburse
the Service for the costs of processing
and administering temporary access
permits and operations permits.
(d) You may not use any surface water
or groundwater from a source located on
a refuge unless you have demonstrated
a right to use that water or the use has
been approved by the Service as the
technologically feasible, least damaging
method.
(e) You agree to indemnify and hold
harmless the United States and its
officers and employees from and against
any and all liability of any kind
whatsoever arising out of or resulting
from the acts or omissions of you and
your employees, agents, representatives,
contractors, and subcontractors in the
conduct of activities under a Serviceissued permit.
(f) You will be required to take all
reasonable precautions to avoid,
minimize, rectify, or reduce the overall
impacts of your proposed oil and gas
activities to the refuge. You may be
required to mitigate for impacts to
refuge resources and lost uses. Mutually
agreed to mitigation tools for this
purpose may include providing
alternative habitat creation or
restoration, land purchase, or other
resource compensation.
(g) You are responsible for
unanticipated and unauthorized
damages as a direct or indirect result of
your operations. You will be responsible
for the actions and consequences of
your employees and subcontractors.
You will also be responsible for any
reclamation of damages to refuge
resources directly or indirectly caused
by your operations through the
occurrence of severe weather, fire,
earthquakes, or the like thereof.
§ 29.121 What monitoring and reporting is
required for all operators?

(a) The Service may access your area
of operations at any time to monitor the
effects of your operations to ensure

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compliance with the regulations in this
subpart.
(b) The Service may determine that
third-party monitors are necessary to
ensure compliance with your operations
permit and to protect Serviceadministered lands and waters, or the
resources of refuges, visitor uses and
experiences, and visitor or employee
health and safety.
(1) The Service’s determination will
be based on the scope and complexity
of the proposed operation, reports that
you are required to submit under
paragraph (e) of this section, and
whether the refuge has the staff and
technical ability to ensure compliance
with the operations permit and any
provision of this subpart.
(2) A third-party monitor will report
directly to the Service at intervals
determined by the Service. We will
make the information reported available
to you upon your request.
(3) You will be responsible for the
cost of the third-party monitor.
(c) You must notify the Service within
24 hours of any injuries to or mortality
of fish, wildlife, or endangered or
threatened plants resulting from your
operations.
(d) You must notify the Service of any
accidents involving serious personal
injury or death and of any fires or spills
on the site immediately after the
accident occurs. You must submit a full
written report on the accident to the
Service within 90 days after the
accident occurs.
(e) Upon our request, you must
submit reports or other information
necessary to verify compliance with
your permit or with any provision of
this subpart. To fulfill this request, you
may submit to us reports that you have
submitted to the State under State
regulations, or that you have submitted
to any other Federal agency to the extent
they are sufficient to verify compliance
with permits or this subpart.
(f) If your operations include
hydraulic fracturing, you must provide
the Service with a report including the
true vertical depth of the well, total
water volume used, and a description of
the base fluid and each additive in the
hydraulic fracturing fluid, including the
trade name, supplier, purpose,
ingredients, Chemical Abstract Service
Number (CAS), maximum ingredient
concentration in additive (percent by
mass), and maximum ingredient
concentration in hydraulic fracturing
fluid (percent by mass). The report must
be either submitted through FracFocus
or another Service-designated database.

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§ 29.122 For how long is my operations
permit valid?

required by any other Federal or State
regulatory authority.

Operations permits remain valid for
the duration of the operation. Provisions
of § 29.160 apply.

§ 29.151 How does the Service establish
the amount of financial assurance?

Access Fees
§ 29.140 May I cross Federal property to
reach the boundary of my oil and gas right?

The Service may grant you the
privilege of access on, across, or through
Service-administered lands or waters to
reach the boundary of your oil and gas
right. You should contact the Service to
determine if additional permits are
necessary for access.
§ 29.141 Will the Service charge me a fee
for access?

(a) The Service will charge you a fee
if you require use of Serviceadministered lands or waters outside
the boundary or scope of your oil and
gas right:
(1) If you require new use of Serviceadministered lands or waters, we will
charge you a fee based on the fair
market value of that use.
(2) Fees under this section will not be
charged for access within the scope of
your oil and gas right or access to your
right that is otherwise provided for by
law.
(b) If access to your oil and gas right
is across an existing refuge road, we
may charge a fee according to a posted
fee schedule.
§ 29.142 Will I be charged a fee for
emergency access to my operations?

No.
(a) The Service will not charge a fee
for access across Service-administered
lands or waters beyond the scope of
your oil and gas right as necessary to
respond to an emergency situation at
your area of operations if we determine
after the fact that the circumstances
required an immediate response to
either:
(1) Prevent or minimize injury to
refuge resources; or
(2) Ensure public health and safety.
(b) You will remain liable for any
damage caused to refuge resources as a
result of such emergency access.

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§ 29.150 When do I have to provide
financial assurance to the Service?

You will need to provide financial
assurance as a condition of approval for
your operations permit when you
submit your application. You must file
financial assurance with us in a form
acceptable to the Service and payable
upon demand. This financial assurance
is in addition to any financial assurance

20:33 Nov 10, 2016

§ 29.152 Will the Service adjust the
amount required for my financial
assurance?

The Service may require, or you may
request, an adjustment to the financial
assurance amount because of any
circumstances that increase or decrease
the estimated costs established under
§ 29.151.
§ 29.153 When will the Service release my
financial assurance?

(a) Your responsibility under the
financial assurance will continue until
either:
(1) The Service determines that you
have met all applicable reclamation
operating standards and any additional
reclamation requirements that may be
included in your operations permit; or
(2) A new operator assumes your
operations, as provided in § 29.170(b).
(b) You will be notified by the Service
within 30 calendar days of our
determination that your financial
assurance has been released.
§ 29.154 Under what circumstances will I
forfeit my financial assurance?

Financial Assurance

VerDate Sep<11>2014

(a) You are responsible for completing
reclamation of your disturbances,
whether within or outside your permit
area, in accordance with this subpart
and the terms of your permit. If you fail
to properly complete reclamation, you
will be liable for the full costs of
completing the reclamation. We will
base the financial assurance amount
upon the estimated cost that a thirdparty contractor would charge to
complete reclamation in accordance
with this subpart. If the cost of
reclamation exceeds the amount of your
financial assurance, you will remain
liable for all costs of reclamation in
excess of the financial assurance.
(b) The Service will reduce the
required amount of your financial
assurance during the pendency of
operations by the amount we determine
is represented by in-kind reclamation
you complete during your operations.

Jkt 214001

(a) You may forfeit all or part of your
financial assurance if we cannot secure
your compliance with the provisions of
your operations permit or a provision of
this subpart. The part of your financial
assurance forfeited is based on costs to
the Service to remedy your
noncompliance.
(b) In addition to forfeited financial
assurance, we may temporarily:

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(1) Prohibit you from removing all
structures, equipment, or other
materials from your area of operations;
(2) Require you to secure the
operations site and take any necessary
actions to protect Service-administered
lands and waters, and resources of the
refuge; visitor uses; and visitor or
employee health and safety; and
(3) Suspend review of any permit
applications you have submitted until
we determine that all violations of
permit provisions or of any provision of
this subpart are resolved.
(4) Seek recovery as provided in
§ 29.151 for all costs of reclamation in
excess of the posted financial assurance.
Modification to an Operation
§ 29.160 Can I modify operations under an
approved permit?

The Service may amend an approved
temporary access permit or an
operations permit to adjust to changed
conditions or to address unanticipated
conditions, either upon our own action
or at your request.
(a) To request a modification to your
operation, you must provide, in writing,
to the Service, your assigned permit
number, a description of the proposed
modification, and an explanation of
why the modification is needed. We
will review your request for
modification under the approval
standards at §§ 29.72 or 29.103. You
may not implement any modification
until you have received the Service’s
written approval.
(b) If the Service needs to amend your
temporary access permit or operations
permit, you will receive a written notice
that:
(1) Describes the modification
required and justification;
(2) Specifies the time within which
you must notify the Service that you
either accept the modifications to your
permit or explain any concerns you may
have; and
(3) Absent any concerns, specifies the
time within which you must incorporate
the modification into your operations.
Change of Operator
§ 29.170 What are my responsibilities if I
transfer my right to operate?

(a) If your operations are being
conducted under § 29.44, you must
notify the Service in writing within 30
calendar days from the date the new
operator acquires the rights to conduct
operations. Your written notification
must include:
(1) The names and addresses of the
person or entity conveying the right and
of the person or entity acquiring the
right;

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(2) The effective date of transfer;
(3) The description of the rights,
assets, and liabilities being transferred
and which ones, if any, are being
reserved by the previous operator; and
(4) A written acknowledgement from
the new operator that the contents of the
notification are true and correct.
(b) If your operations are being
conducted under § 29.43 or an
operations permit:
(1) You must provide notice under
paragraph (a) of this section.
(2) You remain responsible for
compliance with your operations
permit, and we will retain your
financial assurance until the new
operator:
(i) Adopts and agrees in writing to
conduct operations in accordance with
all terms and conditions of your
operations permit;
(ii) Provides financial assurance with
us that is acceptable to the Service and
made payable to the Service; and
(iii) Receives written notification from
the Service that transfer of the
operations permit has been approved.

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§ 29.171 What must I do if operations are
transferred to me?

(a) If another operator transfers
operations conducted under § 29.44, as
the transferee you may continue
operating under the requirements of that
section, but:
(1) Within 30 calendar days from the
date of the transfer, you must provide to
the Service:
(i) Documentation demonstrating that
you hold the right to operate; and
(ii) The names, phone numbers, and
addresses of your:
(A) Primary company representative;
(B) Representative responsible for
field supervision; and
(C) Representative responsible for
emergency response.
(2) Within 90 days, or as otherwise
agreed to by the Service, submit an
operations permit application in
compliance with §§ 29.90–29.97,
Operations Permit: Application, that
must be approved in compliance with
applicable provisions of this subpart
and under the timelines outlined in
§§ 29.100–29.103, Operations Permit:
Application Review and Approval.
(b) If another operator transfers
operations conducted under § 29.43 or
an operations permit, you must within
30 days of commencing transferred
operations:
(1) Provide documentation
demonstrating that you hold the right to
operate.
(2) Provide the names, phone
numbers, and addresses of your:
(i) Primary company representative;

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(ii) Representative responsible for
field supervision; and
(iii) Representative responsible for
emergency response.
(3) Agree in writing to conduct
operations in accordance with all terms
and conditions of the previous
operator’s permit.
(4) File financial assurance with us
that is acceptable to the Service and
made payable to the Service.
(5) Receive written approval from the
Service for the transfer of the
operation’s permit.
(c) You may modify operations
transferred to you in accordance with
§ 29.160.
Well Plugging
§ 29.180

When must I plug my well?

Except as provided in § 29.181, you
must plug your well, in accordance with
the standards and procedures outlined
in this subpart, when any of the
following occurs:
(a) Your drilling operations have
ended and you have taken no further
action on your well within 60 calendar
days;
(b) Your well, which has been
completed for production operations,
has no measurable production
quantities for 12 consecutive months; or
(c) The period approved in your
permit to maintain your well in shut-in
status has expired.
§ 29.181 Can I get an extension to the well
plugging requirement?

(a) You may apply for either an
operations permit or a modification to
your approved operations permit to
maintain your well in a shut-in status
for up to 5 years. Provide the
information requested on FWS Form 3–
2469, including, but not limited to:
(1) An explanation of why the well is
shut-in or temporarily abandoned and
your future plans for utilization;
(2) A demonstration of the mechanical
integrity of the well; and
(3) A description of the manner in
which your well, equipment, and area of
operations will be maintained in
accordance with the standards in the
subpart.
(b) Based on the information provided
under this section, we may approve
your application to maintain your well
in shut-in status for a period up to 5
years. We may condition an extension
on an adjustment of your financial
assurance.
(c) You may apply for additional
extensions by submitting a new
application under paragraph (a) of this
section.

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Prohibited Acts and Penalties
§ 29.190 What acts are prohibited under
this subpart?

The following acts are prohibited:
(a) Operating in violation of the terms
or conditions of a temporary access
permit, an operations permit, a permit
under § 29.43, or any applicable
provision of this subpart, including
§§ 29.60–29.64 for pre-existing
operations.
(b) Damaging Service-administered
lands or waters, or resources of a refuge,
as a result of failure to comply with the
terms or conditions of a temporary
access permit, an operations permit,
operations being conducted under
§§ 29.43 or 29.44, or any provision of
this subpart.
(c) Conducting operations without a
temporary access permit or an
operations permit, unless conducting
operations under §§ 29.43 or 29.44.
(d) Failure to comply with any
suspension or revocation order issued
under this subpart.
(e) Failure to comply with the
applicable provisions of Federal law or
regulation including this subchapter.
(f) Failure to comply with the
applicable provisions of the laws and
regulations of the State wherein any
operation is located unless further
restricted by Federal law or regulation
including this subchapter.
§ 29.191 What enforcement actions can
the Service take?

If you engage in a prohibited act:
(a) The Service may suspend and/or
revoke your approved operations permit
and your authorization for operations as
set forth at § 29.43 and § 29.44; and/or
(b) All prohibited acts are subject to
the penalty provisions set forth at
§ 28.31 of this subchapter.
§ 29.192 How do violations affect my
ability to obtain a permit?

Until you comply with the regulations
in this subpart, we will not consider a
request to conduct any new operations,
except plugging and reclamation
operations, on Service-administered
lands or waters.
Appeals
§ 29.200 Can I, as operator, appeal Service
decisions?

Yes. If you disagree with a decision
made by the Service under this subpart,
you may use the appeals process in
§ 25.45 of this subchapter. The process
set forth in § 25.45 will be used for
appeal of any written decision
concerning approval, denial, or
modification of an operation made by
the Service under this subpart. No

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Service decision under this subpart that
is subject to appeal to the Regional
Director or the Director shall be
considered final agency action subject to
judicial review under 5 U.S.C. 704 until
the Regional Director has rendered his
or her decision on the matter. The
decision of the Regional Director will
constitute the Service’s final agency
action, and no further appeal will lie in
the Department from that decision.
Public Information
§ 29.210 How can the public learn about oil
and gas activities on refuge lands?

mstockstill on DSK3G9T082PROD with RULES4

(a) Interested parties may view
publicly available documents at the
refuge’s office during normal business
hours or by other means prescribed by
the refuge. The availability for public
inspection of information about the
nature, location, character, or ownership
of refuge resources will conform to all
applicable laws and implementing
regulations, standards, and guidelines.
(b) The refuge will make available for
public inspection any documents that
an operator submits to the Service under
this subpart except those that the
operator has identified as proprietary or
confidential.
(c) For the information required in
§ 29.121(f), the operator and the owner
of the information will be deemed to
have waived any right to protect from
public disclosure information submitted
through FracFocus or another Servicedesignated database.
(d) For information required under
this subpart that the owner of the
information claims to be exempt from
public disclosure and is withheld from
the Service, a corporate officer,
managing partner, or sole proprietor of
the operator must sign and the operator
must submit to the authorized officer an
affidavit that:
(1) Identifies the owner of the
withheld information and provides the
name, address, and contact information
for a corporate officer, managing
partner, or sole proprietor of the owner
of the information;
(2) Identifies the Federal statute or
regulation that would prohibit the
Service from publicly disclosing the

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information if it were in the Service’s
possession;
(3) Affirms that the operator has been
provided the withheld information from
the owner of the information and is
maintaining records of the withheld
information, or that the operator has
access and will maintain access to the
withheld information held by the owner
of the information;
(4) Affirms that the information is not
publicly available;
(5) Affirms that the information is not
required to be publicly disclosed under
any applicable local, State, tribal, or
Federal law;
(6) Affirms that the owner of the
information is in actual competition and
identifies competitors or others that
could use the withheld information to
cause the owner of the information
substantial competitive harm;
(7) Affirms that the release of the
information would likely cause
substantial competitive harm to the
owner of the information and provides
the factual basis for that affirmation; and
(8) Affirms that the information is not
readily apparent through reverse
engineering with publicly available
information.
(e) If the operator relies upon
information from third parties, such as
the owner of the withheld information,
to make the affirmations in paragraphs
(d)(6) through (d)(8) of this section, the
operator must provide a written
affidavit from the third party that sets
forth the relied-upon information.
(f) The Service may require any
operator to submit to the Service any
withheld information, and any
information relevant to a claim that
withheld information is exempt from
public disclosure.
(g) If the Service determines that the
information submitted under paragraphs
(d) or (e) of this section is not exempt
from disclosure, the Service will make
the information available to the public
after providing the operator and owner
of the information with no fewer than
10 business days’ notice of the Service’s
determination.
(h) The operator must maintain
records of the withheld information

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until the later of the Service’s release of
the operator’s financial assurance or 7
years after completion of operations on
refuge lands. Any subsequent operator
will be responsible for maintaining
access to records required by this
paragraph during its operation of the
well. The operator will be deemed to be
maintaining the records if it can
promptly provide the complete and
accurate information to the Service,
even if the information is in the custody
of its owner.
(i) If any of the chemical identity
information required in this subpart is
withheld, the operator must provide the
generic chemical name in the
submission required. The generic
chemical name must be only as
nonspecific as is necessary to protect
the confidential chemical identity, and
should be the same as or no less
descriptive than the generic chemical
name provided to the Environmental
Protection Agency.
Information Collection
§ 29.220 Has the Office of Management
and Budget approved the collection of
information?

The Office of Management and Budget
reviewed and approved the information
collection requirements contained in
this subpart and assigned OMB Control
No. 1018–0162. We use the information
collected under this subpart to manage
non-Federal oil and gas operations on
Service-administered lands or waters for
the purpose of protecting wildlife and
habitat, water quality and quantity,
wildlife-dependent recreational
opportunities, and the health and safety
of employees and visitors on the NWRS.
We may not conduct or sponsor and you
are not required to respond to a
collection of information unless it
displays a currently valid OMB control
number.
Karen Hyun,
Deputy Assistant Secretary for Fish and
Wildlife and Parks.
[FR Doc. 2016–27218 Filed 11–10–16; 8:45 am]
BILLING CODE 4333–15–P

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