GAO 

United States Government Accountability Office

Report to Congressional Requesters

ENERGY POLICY ACT 

OF 2005 

Greater Clarity 

Needed to Address 

Concerns with 

Categorical 

Exclusions for Oil and 

Gas Development 

under Section 390 

of the Act 

September 2009 

GAO-09-872 
What GAO Found

United States Government Accountability Office

Why GAO Did This Study

Highlights

Accountability Integrity Reliability

September 2009

ENERGY POLICY ACT OF 2005 

Greater Clarity Needed to Address Concerns with 

Categorical Exclusions for Oil and Gas Development 

Highlights of GAO-09-872, a report to under Section 390 of the Act 

congressional requesters 

The Energy Policy Act of 2005 was 

enacted in part to expedite oil and 

gas development. Section 390 of 

the act authorized the Department 

of the Interior’s Bureau of Land 

Management (BLM) to use 

categorical exclusions to 

streamline the environmental 

analysis required when approving 

certain oil and gas activities. 

Numerous questions have been 

raised about how and when BLM 

should use these section 390 

categorical exclusions. GAO was 

asked to report on (1) the extent to 

which BLM has used section 390 

categorical exclusions and the 

benefits, if any, associated with 

their use; (2) the extent to which 

BLM has complied with the act and 

agency guidance; and (3) key 

concerns, if any, associated with 

section 390 categorical exclusions. 

GAO analyzed documents from all 

26 BLM field offices that have used 

this new tool, including a 

nongeneralizable random sample of 

215 section 390 categorical 

exclusion decision documents. 

What GAO Recommends

Congress may want to consider 

amending the act to clarify section 

390. In addition, GAO recommends 

that BLM take steps to improve the 

implementation of section 390 by 

clarifying agency guidance, 

standardizing decision documents, 

and ensuring compliance through 

more oversight. The Department of 

the Interior concurred with our 

recommendations and stated that it 

will take immediate steps to ensure 

that the use of section 390 

categorical exclusions is consistent 

with the act and BLM guidance. 

GAO’s analysis of BLM field office data shows that section 390 categorical 

exclusions were used to approve approximately 6,100 of 22,000 applications 

for drilling permits (about 28 percent) and about 800 other actions—mostly 

modifications to existing permits—from fiscal years 2006 to 2008. GAO is 

reporting about 1,150 more instances in which BLM approved section 390 

categorical exclusions than had been reported by BLM headquarters, largely 

because many field offices erroneously used single decision documents to 

approve multiple oil and gas wells. While section 390 categorical exclusions 

increased the efficiency of certain operations, some BLM field offices 

benefited more than others. The differences in benefits stem from a variety of 

factors and circumstances, such as whether an office had recent and sitespecific National Environmental Policy Act (NEPA) documentation. 

BLM’s use of section 390 categorical exclusions has frequently been out of 

compliance with both the law and BLM’s guidance. First, GAO found several 

types of violations of the law, including approving more than one oil or gas 

well under a single decision document, approving projects inconsistent with 

the law’s criteria, and drilling a new well after time frames had lapsed. 

Second, GAO found numerous examples—in 85 percent of the field offices 

sampled—where officials did not correctly follow guidance, most often by 

failing to adequately justify the use of a categorical exclusion. A lack of clear 

guidance and oversight contributed to the violations and noncompliance. 

While many of these are technical in nature, others are more significant and 

may have thwarted NEPA’s twin aims of ensuring that BLM and the public are 

fully informed of the environmental consequences of BLM’s actions. 

A lack of clarity in section 390 and BLM’s guidance has raised serious 

concerns about the use of section 390 categorical exclusions. 

• First, fundamental questions about what section 390 categorical 

exclusions are and how they should be used have led to concerns that 

BLM may be using these categorical exclusions in too many—or too few—

instances. For example, there is disagreement as to whether BLM must 

screen section 390 categorical exclusions for extraordinary circumstances 

which would preclude their use, whether their use is mandatory, and how 

the public can challenge their use and on what grounds. 

• Second, specific concerns have arisen about key concepts underlying the 

law’s description of certain section 390 categorical exclusions. For 

example, some have raised concerns that section 390 categorical 

exclusions allow BLM to exceed development levels—such as number of 

wells to be drilled—analyzed in supporting NEPA documents without 

conducting further analysis. 

• Third, vague or nonexistent definitions of key terms in the law and BLM 

guidance that describe the conditions to be met when using a section 390 

categorical exclusion—such as “individual surface disturbances” or 

“maintenance of a minor activity”—have led to varied interpretations 

among field offices and concerns about misuse and a lack of transparency.

View GAO-09-872 or key components.

For more information, contact Robin M. 

Nazzaro at (202) 512-3841 or 

nazzaror@gao.gov. 
Page i GAO-09-872 

Contents 

Letter 1

Background 4 

BLM Field Offices Have Used Section 390 Categorical Exclusions 

for Over One-Quarter of Their APDs, Although Benefits of Use 

Vary Widely across Field Offices 12 

BLM’s Use of Section 390 Categorical Exclusions Has Frequently 

Been Out of Compliance with Both the Law and BLM’s 

Implementing Guidance 23 

Lack of Clarity in the Law and in BLM Guidance Has Raised 

Serious Concerns 34 

Conclusions 51 

Matter for Congressional Consideration 53 

Recommendations for Executive Action 53 

Agency Comments 54 

Appendix I Objectives, Scope, and Methodology 55 

Appendix II List of Extraordinary Circumstances for 

Administrative Categorical Exclusions 61 

Appendix III Confusion between Section 390 Categorical 

Exclusions and Onshore Oil and Gas Order No. 1 63 

Appendix IV Comments from the Department of the Interior 65 

Appendix V GAO Contact and Staff Acknowledgments 66 

 Section 390 Categorical Exclusions 
Tables 

Table 1: Number of Section 390 Categorical Exclusions Used to 

Approve APDs, Fiscal Years 2006 through 2008 12 

Table 2: Number of Section 390 Categorical Exclusions Used to 

Approve Nondrilling Actions, Fiscal Years 2006 through 

2008 14 

Table 3: Difference between the Number of Section 390 Categorical 

Exclusions Reported by BLM Headquarters and GAO’s 

Analysis, Fiscal Years 2006 through 2008 15 

Table 4: Summary of Violations of Section 390 of the Energy Policy 

Act of 2005 23 

Table 5: Summary of Noncompliance with BLM Guidance 26 

Table 6: Sample Sizes of Section 390 Categorical Exclusions from 

BLM Field Offices 58 

Figures 

Figure 1: BLM Field Offices with Oil and Gas Activities 5 

Figure 2: BLM’s Process for Approving Oil and Gas Projects 10 

Figure 3: Multiple Wells on a Single Well Pad in Glenwood Springs, 

Colorado (February 2009) 18 

Figure 4: Spider-web Pattern of Development (c. 2004) and 

Antelope in Front of Wells in a Wildlife Corridor in 

Pinedale, Wyoming (October 2008) 37 

Figure 5: Warning Sign and the Great Hunt Panel in Nine Mile 

Canyon, Utah (October 2008) 38 

Figure 6: Depiction of the Confusion Surrounding the 5-Year Time 

Frames for Section 390 CX2 and CX3 64 

Page ii GAO-09-872 Section 390 Categorical Exclusions
Abbreviations 

APD Application for Permit to Drill 

BLM Bureau of Land Management 

FLPMA Federal Land Policy and Management Act of 1976 

NEPA National Environmental Policy Act of 1969 

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Page iii GAO-09-872 Section 390 Categorical Exclusions
Page 1 GAO-09-872 

 

United States Government Accountability Office

Washington, DC 20548 

 

September 16, 2009 

The Honorable Nick J. Rahall, II 

Chairman 

Committee on Natural Resources 

House of Representatives 

The Honorable James Costa 

Chairman 

Subcommittee on Energy and Mineral Resources 

Committee on Natural Resources 

House of Representatives 

The Honorable Jeff Bingaman 

Chairman 

Committee on Energy and Natural Resources 

United States Senate 

Oil and natural gas production from federal lands is critical to meeting our 

nation’s energy needs. From fiscal year 2006 to fiscal year 2008, the 

Department of the Interior’s (Interior) Bureau of Land Management (BLM) 

approved more than 22,000 new oil and gas drilling permits across 

20 states, largely in the mountain West. Like many projects on federal land 

with possible environmental impacts, oil and gas development activities 

are typically subject to environmental review under the National 

Environmental Policy Act of 1969 (NEPA).1

 In addressing long-term energy 

challenges, Congress enacted the Energy Policy Act of 2005, in part to 

expedite oil and gas development within the United States.2

 This law 

authorizes BLM, for certain oil and gas activities, to approve projects 

without preparing new environmental analyses that would normally be 

required by NEPA. 

Under NEPA, federal agencies evaluate the likely environmental effects of 

projects they are proposing using an environmental assessment or, if 

projects are likely to significantly affect the environment, a more detailed 

environmental impact statement. If, however, the agency determines that 

activities of a proposed project fall within a category of activities the 

1

Pub. L. No. 91-190, 83 Stat. 852 (1970). 

2

Pub. L. No. 109-58, 119 Stat. 594 (2005). 

 Section 390 Categorical Exclusions 
 

agency has already determined has no significant environmental impact—

called a categorical exclusion—then the agency generally need not 

prepare an environmental assessment or environmental impact statement. 

The agency may instead approve projects that fit within the relevant 

category by using one of the predetermined categorical exclusions, rather 

than carrying out a project-specific environmental assessment or 

environmental impact statement. For a project to be approved using a 

categorical exclusion, the agency must determine whether any 

extraordinary circumstances exist in which a normally excluded action or 

project may have a significant effect. NEPA has two principal purposes: 

(1) to ensure that the agency carefully considers detailed information 

concerning significant environmental impacts and (2) to ensure that this 

information will be made available to the public.3

 It does not, however, 

require any particular substantive result.4

Interior and BLM have categorical exclusions in place for numerous types 

of activities, such as constructing wildlife perches and constructing snow 

fences for safety purposes. To use such an “administrative” categorical 

exclusion in approving a project on BLM land,5

 the agency screens each 

proposed project for extraordinary circumstances, such as significant 

impacts to threatened and endangered species, historic or cultural 

resources, or human health and safety or potentially significant cumulative 

environmental effects when coupled with other actions. When one or more 

of the extraordinary circumstances exists, BLM guidance precludes staff 

from using an administrative categorical exclusion for the project. 

Section 390 of the Energy Policy Act of 2005 established five new 

categorical exclusions specifically for oil and gas development.6

 These 

categorical exclusions—referred to in this report as section 390 

categorical exclusions—define specific conditions under which BLM need 

not prepare any new NEPA analysis, such as an environmental assessment 

or environmental impact statement, which would ordinarily be required 

for oil and gas projects. As with administrative categorical exclusions, 

 

3

See, for example, Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). 

4

See, for example, Department of Transportation v. Public Citizen, 541 U.S. 752, 756 

(2004). 

5

Throughout this report, we refer to categorical exclusions developed under the NEPA 

regulations as administrative categorical exclusions. 

6

Pub. L. No. 109-58, § 390, 119 Stat. 747 (2005), codified at 42 U.S.C. § 15942. 

Page 2 GAO-09-872 Section 390 Categorical Exclusions
 

BLM’s National Environmental Policy Act Handbook requires staff to 

document their decisions and rationale for using any section 390 

categorical exclusion to approve an oil or gas project. Projects approved 

with section 390 categorical exclusions are not subject to any screening 

for extraordinary circumstances, according to BLM officials.7

 Numerous 

questions have been raised—by western state governors, environmental 

groups, industry representatives, and others—about how and when BLM 

should use section 390 categorical exclusions in approving oil and gas 

projects. Moreover, disagreements with BLM’s interpretation that the use 

of section 390 categorical exclusions is not subject to a screening for 

extraordinary circumstances, among other issues, are central to ongoing 

litigation by a coalition of environmental and historic preservation groups 

concerning BLM’s use of section 390 categorical exclusions near Nine Mile 

Canyon in Utah.8

In this context, we were asked to report on (1) the extent to which BLM 

has used section 390 categorical exclusions each fiscal year from 2006 

through 2008 and the benefits, if any, associated with their use; (2) the 

extent to which BLM has used section 390 categorical exclusions in 

compliance with the Energy Policy Act of 2005 and internal BLM guidance; 

and (3) key concerns, if any, associated with section 390 categorical 

exclusions. 

To conduct this work, we reviewed relevant laws, regulations, and Interior 

and BLM guidance. We interviewed officials in BLM headquarters and in 

the 11 BLM field offices (and their associated state offices) that processed 

the most applications for permit to drill (APD) from fiscal year 2006 

through fiscal year 2008. Specifically, we visited and interviewed officials 

in three BLM state offices (Colorado, Utah, and Wyoming) and 8 BLM field 

offices (Glenwood Springs, in Colorado; Price/Moab and Vernal in Utah; 

Buffalo, Casper, Pinedale, and Rawlins in Wyoming; and Farmington in 

New Mexico) and interviewed by telephone officials in two additional 

state offices (California and New Mexico) and 3 additional field offices 

(Bakersfield, California; Carlsbad/Hobbs, New Mexico; and White River, 

Colorado). We also interviewed representatives from industry, historic 

 

7

BLM, Instruction Memorandum No. 2005-247: National Environmental Policy Act (NEPA) 

Compliance for Oil, Gas, and Geothermal Development, attachment 2 (Sept. 30, 2005); and 

BLM, National Environmental Policy Act Handbook H-1790-1 (Washington, D.C.: 2008). 

We refer in this report to the second document as BLM’s NEPA handbook. 

8

Nine Mile Canyon Coalition v. Stiewig, Civ. No. 08-586, D. Utah (filed Aug. 6, 2008). 

Page 3 GAO-09-872 Section 390 Categorical Exclusions
 

preservation groups, and environmental groups about benefits and 

concerns—both actual and potential—associated with section 390 

categorical exclusions. To determine the extent to which BLM has used 

section 390 categorical exclusions each fiscal year from 2006 through 

2008, we compared the data supplied by BLM headquarters with the data 

supplied by BLM field offices to identify and explain discrepancies. To 

ascertain the benefits of using section 390 categorical exclusions, we 

conducted semi-structured interviews with the 11 BLM field offices that 

processed the most ADPs from fiscal year 2006 through fiscal year 2008. 

To determine the extent to which BLM has used section 390 categorical 

exclusions in compliance with the Energy Policy Act of 2005 and internal 

BLM guidance, we analyzed documents from all 26 BLM field offices that 

used section 390 categorical exclusions, including a review of a 

nongeneralizable random sample of 215 section 390 categorical exclusion 

decision documents. To determine the key concerns, if any, associated 

with section 390 categorical exclusions, we reviewed relevant land-useplanning documents, including resource management plans and 

environmental impact statements, and synthesized information gathered 

during interviews. Appendix I presents a more detailed description of our 

scope and methodology. 

We conducted this performance audit from September 2008 through 

September 2009, in accordance with generally accepted government 

auditing standards. Those standards require that we plan and perform the 

audit to obtain sufficient, appropriate evidence to provide a reasonable 

basis for our findings and conclusions based on our audit objectives. We 

believe that the evidence obtained provides a reasonable basis for our 

findings and conclusions based on our audit objectives. 

Under the Federal Land Policy and Management Act of 1976, as amended 

(FLPMA),9

 BLM manages more than 261 million acres of federal land for 

multiple uses, including recreation; range; timber; minerals; watershed; 

wildlife and fish; and natural scenic, scientific, and historical values; as 

well as for the sustained yield of renewable resources. In addition, the 

Mineral Leasing Act of 1920 charges Interior with the responsibility for oil 

and gas leasing on federal and private lands where the federal government 

has retained mineral rights. BLM is responsible for managing 

approximately 700 million mineral onshore acres, which include the 

Background 

 

9

Pub. L. No. 94-579, 90 Stat. 2743 (1976), codified as amended at 43 U.S.C. § 1701 et seq. 

Page 4 GAO-09-872 Section 390 Categorical Exclusions
 

acreage leased for oil and gas development. To manage its responsibilities, 

BLM administers its programs through its headquarters office in 

Washington, D.C.; 12 state offices; 38 district offices; and 127 field offices. 

BLM headquarters develops guidance and regulations for the agency, 

while the state, district, and field offices manage and implement the 

agency’s programs. Only 30 BLM field offices are involved in oil and gas 

development, and they are located primarily in the mountain West 

(see fig. 1). 

Figure 1: BLM Field Offices with Oil and Gas Activities 

Source: BLM and Map Resources.

White River

Rawlins

Rock Springs

Kemmerer

Buffalo Worland/Cody

Newcastle

Lander

Bakersfield

Reno

Casper

Cañon City

Grand Junction

Glenwood Springs

San Juan Public Lands Center

Little Snake

Pinedale

Carlsbad/Hobbs

Roswell

Farmington

Dickinson Milwaukee

Jackson

Tulsa

Anchorage

Great Falls

Miles City

Vernal

Salt Lake City

Price/Moab

Anchorage, Alaska

Bakersfield, Calif.

Cañon City, Colo.

Little Snake, Colo.

San Juan Public Lands Center, Colo.

Glenwood Springs, Colo.

Grand Junction, Colo.

White River, Colo.

Jackson, Miss.

Great Falls, Mont.

Miles City, Mont.

Reno, Nev.

Carlsbad/Hobbs, N.Mex.

Farmington, N.Mex.

Roswell, N.Mex.

Dickinson, N.Dak.

Tulsa, Okla.

Price/Moab, Utah

Salt Lake City, Utah

Vernal, Utah

Milwaukee, Wisc.

Buffalo, Wyo.

Casper, Wyo.

Lander, Wyo.

Kemmerer, Wyo.

Newcastle, Wyo.

Pinedale, Wyo.

Rawlins, Wyo.

Rock Springs, Wyo.

Worland/Cody, Wyo.

BLM Field Offices with Oil and Gas Activities

Page 5 GAO-09-872 Section 390 Categorical Exclusions
 

FLPMA requires the Secretary of the Interior to develop land use plans 

(called resource management plans); evaluated for potential revision at 

least every 5 years,10 these plans identify areas that will be available for oil 

and gas development. The environmental impact statement associated 

with a resource management plan analyzes the potential impacts that may 

result from the decisions and management actions the agency makes in 

the plan. To estimate what cumulative impacts may be expected from 

decisions in the plan, BLM uses a “reasonably foreseeable development 

scenario” for oil and gas development. These scenarios estimate 

outcomes, such as the number of wells and likely surface disturbance for 

analysis purposes, as well as establish monitoring protocols and right-ofway corridors, among other things. Consistent with the resource 

management plans, BLM can accept bids from private companies and 

operators to lease BLM land for access to and extraction of oil and gas 

resources. Before approving an oil and gas lease, BLM determines if any 

restrictions (called stipulations) need to be added, among other reasons, 

to mitigate the environmental effects of expected oil and gas production 

on that lease. As provided by BLM regulations, if stipulations are 

necessary, they are incorporated into the lease.11

To drill for oil or natural gas on leased lands, a company must submit an 

APD to BLM.12 APDs are used to approve drilling and all related activities 

on land leased by a company, including road building; digging pits to store 

drilling effluent; placing pipelines to carry oil and gas to market; and 

building roads to transport equipment, personnel, and other productionrelated materials.13 After an APD is approved, operators can submit 

proposals to BLM, in the form of a sundry notice, for modifications to their 

approved APD. Sundry notices may involve activities like moving the 

location of a well, adding an additional pipeline, or adding remote 

communications equipment. 

 

10Revisions to resource management plans are necessary if monitoring and evaluation 

findings, new data, new or revised policy, or changes in circumstances indicate that 

decisions for an entire plan or a major portion of a plan no longer serve as a useful guide 

for resource management. BLM, Land Use Planning Handbook H-1601-1, p. 46 (2005). 

1143 C.F.R. § 3101.1-3. 

1243 C.F.R § 3162.3-1(c). 

13Companies may also be required to submit a right-of-way application for related activities, 

such as adding pipelines, that take place on land for which they do not own a lease. See 

43 C.F.R. § 2881.7. 

Page 6 GAO-09-872 Section 390 Categorical Exclusions
 

Before enactment of section 390 of the Energy Policy Act of 2005, all APDs 

and sundry notices that proposed additional surface disturbance 

underwent an environmental review process as outlined in BLM’s NEPA 

handbook. As part of that process, BLM evaluates APDs to ensure that 

they conform to the land use plan and applicable laws and regulations, 

such as the Endangered Species Act and the National Historic 

Preservation Act. BLM inspects proposed drilling sites with on-site reviews 

and may add site-specific restrictions or conditions of approval if deemed 

necessary to protect the environment or cultural resources. The process 

includes developing alternatives to proposed projects, which are analyzed 

for their environmental and cultural impacts. BLM typically identifies and 

analyzes these alternatives using (1) an environmental assessment or 

(2) a more detailed environmental impact statement when significant 

environmental impacts appear likely. In some cases, BLM relies on 

existing NEPA analyses and uses a process called determination of NEPA 

adequacy to document the rationale for concluding that there will be no 

new significant environmental impact that would require preparation of 

additional analysis.14 Regulations also direct BLM to make diligent efforts 

to involve the public in preparing and implementing the NEPA process, 

including providing opportunities for the public to comment on proposed 

projects and alternatives.15

During review, BLM may determine that a proposed project falls within a 

group of activities—categorical exclusions—that have been defined in 

NEPA regulations as: 

“...a category of actions which do not individually or cumulatively have a significant effect 

on the human environment and which have been found to have no such effect in 

procedures adopted by a Federal agency in implementation of these regulations (§ 1507.3) 

and for which, therefore, neither an environmental assessment nor an environmental 

impact statement is required. An agency may decide in its procedures or otherwise, to 

prepare environmental assessments for the reasons stated in § 1508.9 even though it is not 

required to do so. Any procedures under this section shall provide for extraordinary 

circumstances in which a normally excluded action may have a significant environmental 

effect.”16

 

14A determination of NEPA adequacy is a NEPA compliance document stating that the 

environmental impacts of the current project have been assessed under previously 

prepared NEPA documentation. 

1540 C.F.R. § 1506.6. 

1640 C.F.R. § 1508.4. 

Page 7 GAO-09-872 Section 390 Categorical Exclusions
 

In such cases, BLM may approve a project using an administrative 

categorical exclusion instead of preparing traditional NEPA documents 

such as an environmental assessment or environmental impact statement, 

or preparing a determination of NEPA adequacy. In most cases, staff must 

document this decision, along with their rationale for choosing to use an 

administrative categorical exclusion. Historically, each categorical 

exclusion available to BLM was submitted by either Interior or BLM for 

review by the Council on Environmental Quality, the office within the 

Executive Office of the President that is responsible for establishing NEPA 

regulations and that works with agencies and other White House offices to 

develop environmental policies and initiatives. None of the current 

administrative categorical exclusions developed under NEPA regulations 

specifically applies to approving APDs.17

BLM guidance details a checklist of 12 extraordinary circumstances staff 

must screen proposed projects against when considering the use of an 

administrative categorical exclusion (see app. II). The existence of one or 

more of these extraordinary circumstances precludes BLM from using a 

categorical exclusion and therefore necessitates reliance on traditional 

NEPA documents in approving the proposed project. 

Section 390 of the Energy Policy Act of 2005 authorizes BLM to forgo 

environmental assessments and impact statements for oil and gas projects 

under certain circumstances. Specifically, subsection (a) states: 

 

17According to BLM officials, before 1989, administrative categorical exclusions existed 

that covered APDs, sundry notices, and oil and gas rights-of-way, although these are no 

longer in effect. 

Page 8 GAO-09-872 Section 390 Categorical Exclusions
 

“NEPA Review.—Action by the Secretary of the Interior in managing the public lands or the 

Secretary of the Agriculture in managing National Forest System Lands, with respect to any 

of the activities described in subsection (b) shall be subject to a rebuttable presumption

that the use of a categorical exclusion under the National Environmental Policy Act of 1969 

(NEPA) would apply if the activity is conducted pursuant to the Mineral Leasing Act for the 

purpose of exploration or development of oil and gas.”18 [emphasis added] 

Subsection (b) outlines five new categories of activities to be considered 

categorical exclusions. These section 390 categorical exclusions (referred 

to in this report as section 390 CX1, CX2, CX3, CX4, and CX5) include: 

“(1) Individual surface disturbances of less than 5 acres so long as the total surface 

disturbance on the lease is not greater than 150 acres and site-specific analysis in a 

document prepared pursuant to NEPA has been previously completed. 

(2) Drilling an oil or gas well at a location or well pad site at which drilling has occurred 

previously within 5 years prior to the date of spudding the well. 

(3) Drilling an oil or gas well within a developed field for which an approved land use plan 

or any environmental document prepared pursuant to NEPA analyzed such drilling as a 

reasonably foreseeable activity, so long as such plan or document was approved within 

5 years prior to the date of spudding the well. 

(4) Placement of a pipeline in an approved right-of-way corridor, so long as the corridor 

was approved within 5 years prior to the date of placement of the pipeline. 

(5) Maintenance of a minor activity, other than any construction or major renovation or 

[sic] a building or facility.” 

In its process for approving oil or gas projects, BLM guidance provides 

that the agency can now use a section 390 categorical exclusion when a 

project meets the conditions set forth for any of the five types of section 

390 categorical exclusions (see fig. 2). BLM guidance still directs staff to 

 

18Pub. L. No. 109-58, § 390(a), 119 Stat. 747 (2005), codified at 42 U.S.C. § 15942(a). 

Although the Energy Policy Act of 2005 authorizes both BLM and the Department of 

Agriculture’s U.S. Forest Service to use section 390 categorical exclusions, this report 

examines only BLM’s use of section 390 categorical exclusions. The exact meaning of the 

phrase “shall be subject to a rebuttable presumption that the use of a categorical exclusion 

under the National Environmental Policy Act of 1969 (NEPA) would apply” is in dispute in 

a lawsuit pending in federal court. Nine Mile Canyon Coalition v. Stiewig, Civ. No. 08-586, 

D. Utah (filed August 6, 2008). We accordingly do not attempt to interpret this language in 

our report. 

Page 9 GAO-09-872 Section 390 Categorical Exclusions
 

document their decision and rationale for using a specific section 390 

categorical exclusion. Furthermore, BLM guidance directs its staff when 

using section 390 categorical exclusions to comply with the Endangered 

Species Act and the National Historic Preservation Act; to conduct on-site 

reviews for all APDs; and to add site-specific restrictions or conditions of 

approval if deemed necessary to protect the environment or cultural 

resources. 

Figure 2: BLM’s Process for Approving Oil and Gas Projects 

Source: GAO.

Approve using a section 390 

categorical exclusion

• Not required to disclose use of 

section 390 categorical exclusion, online or otherwise

Approve using a traditional NEPA 

document

• Identifies which NEPA compliance document used, sometimes online

Interdisciplinary team review 

and on-site evaluation

• Decision made whether to 

process application with a

traditional NEPA document 

or with a section 390 

categorical exclusion

• Add conditions of approval, 

move well locations, or 

change project as needed

Industry 

proposes oil and 

gas project

Industry submits

APD or notice of 

staking

• BLM posts

cover sheet in 

public room for a

30-day period

BLM headquarters has developed and issued the following three primary 

pieces of internal guidance on how and when to use section 390 

categorical exclusions to approve oil and gas development. 

• Instruction Memorandum No. 2005-247, issued on September 30, 2005, 

approximately 2 months after passage of the Energy Policy Act of 2005, set 

forth preliminary guidance on the application of section 390 categorical 

exclusions. The memorandum directed BLM staff to use a section 390 

categorical exclusion if the proposed project met the conditions for one of 

the five types of section 390 categorical exclusions. 

• BLM’s National Environmental Policy Act Handbook H-1790-1, 

appendix 2: “Using Categorical Exclusions Established by the Energy 

Policy Act of 2005,” issued in January 2008, superseded Instruction 

Memorandum No. 2005-247. BLM’s NEPA handbook repeats the 

memorandum’s guidance on how to use and document the rationale for 

Page 10 GAO-09-872 Section 390 Categorical Exclusions
 

using a section 390 categorical exclusion. Unlike Instruction Memorandum 

No. 2005-247, the appendix does not explicitly direct BLM staff to use a 

section 390 categorical exclusion if one is applicable.19

• Instruction Memorandum No. 2008-166, issued August 6, 2008, transmits 

a technical correction to BLM’s NEPA handbook. The memorandum 

specifies, among other instructions, that (1) section 390 CX1 and CX3 are 

the types of section 390 categorical exclusions that require reference to 

previous NEPA analyses and documents and (2) for each type of section 

390 categorical exclusion, field offices must apply the same or better 

environmental mitigating measures contained in the supporting NEPA 

documents for previous oil and development at the same site. 

In addition, BLM issued supplemental information on how and when to 

use section 390 categorical exclusions, such as a presentation titled 

“Energy Policy Act of 2005 Section 390 [Categorical Exclusions] 101,” 

which was created to explain the use of section 390 categorical exclusions 

for BLM state offices,20 as well as other informal guidance.21 Furthermore, 

Onshore Oil and Gas Order No. 1, issued on October 21, 1983, and revised 

on March 7, 2007, specifies that: (1) BLM cannot approve an APD until the 

requirements of certain other laws and regulations, including NEPA, the 

National Historic Preservation Act, and the Endangered Species Act, have 

been met; (2) a 30-day public posting period is required for all APDs; and 

(3) an approved APD is valid for 2 years, with the possibility of a 2-year 

renewal. 

 

19BLM’s NEPA handbook includes several additional appendices, such as a list of 

administrative categorical exclusions, a list of extraordinary circumstances used to screen 

the use of administrative categorical exclusions, and templates for documenting NEPA 

compliance and the use of administrative categorical exclusions. 

20The presentation was first created in late 2007 and continuously updated until September 

2008 by BLM officials to reflect evolving policies and questions about using section 390 

categorical exclusions. BLM also developed another presentation in 2006, titled NEPA for 

Fluid Minerals, which also addressed how to use section 390 categorical exclusions. 

21BLM has issued two other pieces of supplemental guidance: (1) a brochure titled “Energy 

Policy Act of 2005 Section 390 Categorical Exclusions: Environmental Protections and 

Process Improvements,” which summarizes the five section 390 categorical exclusions and 

BLM’s related policy procedures and was issued in 2007 for BLM staff—specifically NEPA 

coordinators—other federal agencies, and external stakeholders (such as environmental 

organizations), and (2) question-and-answer guides prepared by BLM headquarters to 

further synthesize information on what conditions need to be present to use a section 390 

categorical exclusion and how to document the rationale for using one of the exclusions. 

Page 11 GAO-09-872 Section 390 Categorical Exclusions
 

BLM Field Offices 

Have Used Section 

390 Categorical 

Exclusions for Over 

One-Quarter of Their 

APDs, Although 

Benefits of Use Vary 

Widely across Field 

Offices 

BLM field offices used section 390 categorical exclusions to approve 

almost 6,900 oil-and-gas-related activities from fiscal year 2006 through 

fiscal year 2008, including nearly 6,100 APDs, or over one-quarter of all 

APDs approved in this period. The benefits of using section 390 

categorical exclusions, mainly in the form of faster processing times for 

APDs, varied among offices, depending on a variety of factors and 

circumstances. 

From Fiscal Year 2006 

through Fiscal Year 2008, 

More Than One-Quarter of 

APDs Were Approved 

Using Section 390 

Categorical Exclusions, 

Although BLM’s Data Were 

of Questionable Reliability 

Our analysis of data supplied by BLM field offices showed that 26 of the 

30 field offices with oil and gas activities used almost 6,900 section 390 

categorical exclusions to approve oil-and-gas-related activities from fiscal 

year 2006 through fiscal year 2008. Of these, BLM field offices used section 

390 categorical exclusions to approve nearly 6,100 APDs (about 28 percent 

of approximately 22,000 federal wells approved by BLM) during this period 

(see table 1). Three BLM field offices (Pinedale, Wyoming; Farmington, 

New Mexico; and Vernal, Utah) accounted for almost two-thirds of section 

390 categorical exclusions used to approve APDs. Section 390 CX3 

accounted for more than 60 percent of the section 390 categorical 

exclusions used to approve APDs. 

Table 1: Number of Section 390 Categorical Exclusions Used to Approve APDs, Fiscal Years 2006 through 2008 

BLM field office 

Section 

390 CX1

Section 

390 CX2

Section 

390 CX3

Section 

390 CX4 

Section 

390 CX5 Total

Pinedale, Wyo. 82 672 744 0 0 1,498

Farmington, N.Mex. 143 25 1,221 0 0 1,389

Vernal, Utah 62 22 1,065 0 0 1,149

Glenwood Springs, Colo. 171 207 35 0 0 413

Buffalo, Wyo. 18 221 143 0 0 382

Casper, Wyo. 13 0 267 0 0 280

Rawlins, Wyo. 154 24 21 0 0 199

Bakersfield, Calif. 58 27 113 0 0 198

Price/Moab, Utah 45 57 20 0 0 122

Dickinson, N.Dak. 0 0 92 0 0 92

Page 12 GAO-09-872 Section 390 Categorical Exclusions
 

BLM field office 

Section 

390 CX1

Section 

390 CX2

Section 

390 CX3

Section 

390 CX4 

Section 

390 CX5 Total

White River, Colo. 15 37 18 0 0 70

Worland/Cody, Wyo. 23 0 38 0 0 61

Jackson, Miss. 51 5 0 0 0 56

Grand Junction, Colo. 3 26 19 0 0 48

Kemmerer, Wyo. 33 0 0 0 0 33

Tulsa, Okla. 0 25 0 0 0 25

Anchorage, Alaska 3 10 1 0 2 16

Carlsbad/Hobbs, N.Mex. 0 11 0 0 0 11

Lander, Wyo. 3 4 2 0 0 9

Little Snake, Colo. 3 5 0 0 0 8

Salt Lake, Utah 5 3 0 0 0 8

Reno, Nev. 2 5 0 0 0 7

San Juan Public Lands Center, Colo. 0 0 7 0 0 7

Milwaukee, Wisc. 0 1 3 0 0 4

Cañon City, Colo. 2 0 0 0 0 2

Total 889 1,387 3,809 0 2 6,087 

Source: GAO analysis of data obtained from BLM field offices. 

Notes: The five other BLM field offices with oil and gas activities not listed in the table—Great Falls 

and Miles City, Montana; Newcastle and Rock Springs, Wyoming; and Roswell, New Mexico—

indicated to us that they did not use any section 390 categorical exclusions to approve APDs from 

fiscal year 2006 through fiscal year 2008. In addition, the count by section 390 categorical exclusion 

number is subject to errors, in part because of the way BLM field offices recorded instances where 

more than one of the five types of categorical exclusions was used. We did not estimate any resulting 

potential effect on the data. 

In addition, our analysis of BLM field office data found that BLM used 

section 390 categorical exclusions to approve more than 800 nondrilling 

projects from fiscal year 2006 through fiscal year 2008 (see table 2). These 

approvals—many of which were submitted to BLM as sundry notices—

were for a wide range of activities, such as moving a well location, adding 

new pipelines, and doing road maintenance. The Buffalo, Wyoming, field 

office was the most prominent user of section 390 categorical exclusions 

for these purposes, approving more than 250 nondrilling projects with 

section 390 categorical exclusions. Ten of the BLM field offices that used 

section 390 categorical exclusions in this period did not use them to 

approve any nondrilling actions. 

Page 13 GAO-09-872 Section 390 Categorical Exclusions
 

Table 2: Number of Section 390 Categorical Exclusions Used to Approve Nondrilling Actions, Fiscal Years 2006 through 2008 

BLM field office 

Section 

390 CX1 

Section 

390 CX2

Section 

390 CX3

Section 

390 CX4 

Section 

390 CX5 Total

Buffalo, Wyo. 165 5 13 24 49 256

Casper, Wyo. 38 0 2 2 56 98

Bakersfield, Calif. 3 0 86 2 0 91

Glenwood Springs, Colo. 40 0 3 17 1 61

Rawlins, Wyo. 20 0 3 23 14 60

Carlsbad/Hobbs, N.Mex. 4 3 0 50 0 57

Worland/Cody, Wyo. 13 0 8 0 33 54

Vernal, Utah 8 0 11 21 0 40

Lander, Wyo. 19 1 0 7 1 28

Pinedale, Wyo. 6 0 5 5 8 24

White River, Colo. 3 0 0 6 3 12

Grand Junction, Colo. 2 0 0 6 0 8

Little Snake, Colo. 5 0 0 3 0 8

Jackson, Miss. 1 0 6 0 0 7

Kemmerer, Wyo. 0 0 0 1 4 5

Great Falls, Mont. 1 0 0 0 0 1

Total 328 9 137 167 169 810

Source: GAO analysis of data obtained from BLM field offices. 

Notes: The 10 other BLM field offices that used section 390 categorical exclusions from fiscal year 

2006 through fiscal year 2008—Anchorage, Alaska; Cañon City and San Juan Public Lands Center in 

Colorado; Reno, Nevada; Farmington, New Mexico; Dickinson, North Dakota; Tulsa, Oklahoma; 

Price/Moab and Salt Lake, Utah; Milwaukee, Wisconsin—indicated to us that they did not use any 

section 390 categorical exclusions for these types of activities. In addition, the count by section 390 

categorical exclusion number is subject to errors, in part because of the way BLM field offices 

recorded instances where more than one of the five types of categorical exclusions was used. We did 

not estimate any resulting potential effect on the data. 

Data reported by BLM headquarters on the number and type of section 390 

categorical exclusions used by its field offices from fiscal year 2006 

through fiscal year 2008 varied considerably from our analysis of data 

supplied to us directly by the field offices. In total, the data reported by 

BLM headquarters showed over 1,100 fewer instances than our analysis for 

field office use of section 390 categorical exclusions (see table 3). 

Page 14 GAO-09-872 Section 390 Categorical Exclusions
 

Table 3: Difference between the Number of Section 390 Categorical Exclusions 

Reported by BLM Headquarters and GAO’s Analysis, Fiscal Years 2006 through 

2008 

BLM field office 

GAO 

analysis 

BLM 

headquarters 

data Difference

Glenwood Springs, Colo. 474 189 285

Vernal, Utah 1,189 973 216

Bakersfield, Calif. 289 126 163

Buffalo, Wyo. 638 495 143

Rawlins, Wyo. 259 176 83

Casper, Wyo. 378 296 82

Pinedale, Wyo. 1,522 1,443 79

White River, Colo. 82 32 50

Farmington, N.Mex. 1,389 1,341 48

Dickinson, N.Dak. 92 69 23

Tulsa, Okla. 25 8 17

Worland/Cody, Wyo. 115 101 14

Grand Junction, Colo. 56 42 14

Carlsbad/Hobbs, N.Mex. 68 54 14

Lander, Wyo. 37 28 9

Kemmerer, Wyo. 38 30 8

San Juan Public Lands Center, Colo. 7 2 5

Little Snake, Colo. 16 13 3

Anchorage, Alaska 16 13 3

Milwaukee, Wisc. 4 3 1

Cañon City, Colo. 2 2 0

Miles City, Mont. 0 0 0

Newcastle, Wyo. 0 0 0

Price/Moab, Utah 122 123 (1)

Reno, Nev. 7 8 (1)

Salt Lake, Utah 8 9 (1)

Great Falls, Mont. 1 5 (4)

Jackson, Miss. 63 89 (26)

Roswell, N.Mex. 0 29 (29)

Rock Springs, Wyo. 0 49 (49)

Total 6,897 5,748 1,149

Source: GAO analysis of data obtained from BLM headquarters and field offices. 

Page 15 GAO-09-872 Section 390 Categorical Exclusions
 

Note: While we took extensive steps to obtain accurate data, such as obtaining data directly from the 

field offices and aggregating the data in a standardized way, we did not trace each field office’s data 

back to original documentation. As a result, some inaccuracies may remain in the summary data. 

The discrepancies between our analysis of BLM field office data and data 

reported by BLM headquarters resulted from a variety of record keeping 

errors. The most significant error resulted from a number of field offices 

using a single section 390 categorical exclusion decision document to 

approve multiple APDs. These field offices counted these cases as a single 

use of a section 390 categorical exclusion, while we counted each 

approved APD as a separate section 390 categorical exclusion, in 

accordance with BLM guidance. This type of counting error by the field 

offices accounts for more than 800 uses of section 390 categorical 

exclusions not reported by BLM headquarters. 

We found numerous other errors that contributed to the differences 

between BLM headquarters data and our analysis of field office data. 

Among these were: 

• environmental assessments mislabeled as section 390 categorical 

exclusions, 

• section 390 categorical exclusion decision documents with missing 

approval dates, 

• section 390 categorical exclusion decision documents where multiple 

section 390 categorical exclusions were used to approve a single project, 

and 

• cases where the date of the project application’s receipt was recorded 

instead of the date of the signed approval document. 

In addition, confusion over whether to count section 390 categorical 

exclusions approved by the U.S. Forest Service in the data given to BLM 

headquarters accounted for an undercounting of more than 50 section 390 

categorical exclusions in one office.22

 

22The Forest Service is separately responsible for authorizing activities affecting the aboveground use of their lands. However, BLM independently evaluates the approval of the 

above-ground use, including section 390 categorical exclusions, and is ultimately 

responsible for approving the overall project proposal, including the below-ground 

activities. 

Page 16 GAO-09-872 Section 390 Categorical Exclusions
 

We also found a lack of consistency in how the data are collected from the 

field offices, including the lack of uniform and consistent data collection 

and aggregation processes, possibly resulting in further errors. For 

instance, in Colorado, the field offices are expected to periodically update 

a centralized record keeping file—accessible and shared by each field 

office—containing the offices’ section 390 categorical exclusion data. In 

other states, by contrast, field offices receive periodic requests to e-mail 

section 390 categorical exclusion summary data to the state office, 

according to BLM officials. 

Many field offices were unable to explain the differences between the 

information they provided us and the totals reported by BLM 

headquarters. When asked about the discrepancies, some field office 

officials pointed to high staff turnover and the lack of a central point of 

contact for record keeping at their office, while others stated that they 

were simply unable to account for differences in the data. When we asked 

BLM headquarters to account for the discrepancies, they supplied us with 

data files showing that they aggregated only the data provided to them by 

the various BLM state offices. 

Benefits of Using 

Section 390 Categorical 

Exclusions Depend on a 

Variety of Factors and 

Circumstances 

Although the vast majority of BLM officials we spoke with told us that 

using section 390 categorical exclusions expedited the application review 

and approval process, the amount of time saved by field offices depended 

on a variety of factors and circumstances influencing the extent to which 

field offices used the exclusions. A frequently cited factor contributing to 

these efficiency gains was the extent to which proposed projects fit the 

specific conditions set forth in each section 390 categorical exclusion. For 

example, BLM officials told us that when a new well is proposed in a 

developed field and a NEPA document less than 5 years old covers that 

action, the default document for processing that application is a section 

390 CX3. In such a circumstance, according to officials, use of the section 

390 categorical exclusion is generally straightforward. These conditions 

were found, for example, in the Farmington, New Mexico, field office, 

which—until September 2008—had an existing environmental impact 

statement on file that had been approved recently enough to be valid to 

support the use of a section 390 CX3. Similarly, officials in field offices 

where directional drilling techniques are used—meaning that new wells 

can be drilled from existing well pads—told us that section 390 CX2 can be 

used to readily approve new wells. We found this type of use in some BLM 

field offices, such as Price/Moab, Utah, and Glenwood Springs, Colorado 

(see fig. 3). 

Page 17 GAO-09-872 Section 390 Categorical Exclusions
 

Figure 3: Multiple Wells on a Single Well Pad in Glenwood Springs, Colorado 

(February 2009) 

Source: GAO.

BLM officials identified other factors that contributed to their ability to 

use section 390 categorical exclusions, including the field office resource 

specialists’ familiarity with the area of the proposed action, the area’s 

environmental sensitivity, the extent of the area’s cultural resources, and 

the proposed action’s extent of surface disturbance. Specifically, BLM 

officials told us that section 390 categorical exclusions are regularly used 

to approve projects in areas where sensitive environmental or cultural 

concerns are few (no threatened or endangered species, or limited cultural 

resources in the area, for instance); where the resource specialists are 

familiar with the location of the proposed action; or where the proposed 

project is not unusual or will have minimal impact on the local 

environment. For example, officials in the Pinedale, Wyoming, field office 

stated that their oil and gas fields are extensively developed, the staff is 

very familiar with the areas of development, and environmental and 

cultural concerns are well known and extensively mapped. Given this 

familiarity, according to field office staff, they are generally comfortable 

assuming that section 390 categorical exclusions are appropriate for 

certain locations, unless proven otherwise. For example, officials from 

several BLM field offices—including Bakersfield, California, and Pinedale, 

Wyoming—told us that such familiarity with environmentally or culturally 

Page 18 GAO-09-872 Section 390 Categorical Exclusions
 

sensitive areas under their jurisdiction has generally enabled them to

consider certain areas as open or closed to approving projects with 

section 390 categorical exclusions. 

ivities, 

 In 

t.23

application and documentation of section 390 categorical exclusions. 

gas 

t 

 hours 

ng to 

 

Additionally, field office policies can contribute to how often section 390 

categorical exclusions are used. For instance, some field offices use them

to approve sundry notices and nondrilling activities, while others do not. 

The Buffalo, Wyoming, field office used section 390 categorical exclusions

more than 250 times to approve sundry notices and nondrilling act

while other offices relied solely on environmental assessments or 

determinations of NEPA adequacy for such approvals. The differences in 

office policies result from field office managers’ comfort with the section 

390 categorical exclusions and their interpretations of appropriate use.

addition, some BLM officials said that not having to respond to public

comments makes the use of section 390 categorical exclusions more 

predictable, and thus more efficient, than a traditional NEPA documen

Other factors cited by BLM officials include how much staff turnover 

occurs in an office—which contributes to familiarity with processing 

APDs—and whether the office has created a template to facilitate the 

The overall increase in efficiency of processing applications for oil and 

projects at a given field office depends on how often proposed actions 

meet the criteria for using a section 390 categorical exclusion. Officials 

told us that while a particular use of a section 390 categorical exclusion 

does not, in most cases, save substantial time, the cumulative time savings

from processing multiple actions with section 390 categorical exclusions 

can be, and has been, significant. Specifically, many BLM officials said tha

a typical use of a section 390 categorical exclusion saves just a few

of total staff time over completing traditional NEPA analysis and 

documentation for a proposed project, because the traditional NEPA 

process in these cases is usually straightforward and concise. Accordi

these officials, the time savings generally comes in the form of a less 

23Regulations issued by the Council on Environmental Quality require all federal agencies 

to make diligent efforts to involve the public in implementing the agencies’ NEPA 

procedures. 40 C.F.R. § 1506.6(a). The regulations also direct agencies to provide public 

notice of NEPA-related hearings, public meetings, and the availability of environmental 

documents so as to inform those persons and agencies who may be interested or affected. 

40 C.F.R. § 1506.6(b). While the regulations specifically require agencies to respond to 

public comments on environmental impact statements, 40 C.F.R. § 1503.4(a), they contain 

no similar requirement for responding to comments on environmental assessments. 

Nevertheless, some BLM officials indicated that they do respond to such comments. 

Page 19 GAO-09-872 Section 390 Categorical Exclusions
 

detailed narrative required to support approval of a section 390 categ

exclusion approval as compared with a traditional NEPA document. 

According to officials, while individual resource specialists—wildlif

biologists or archeologists, for instance—do the same analysis, the 

documentation of that analysis is less rigorous when a section 390 

categorical exclusion is used to approve a project than when a traditional

NEPA document is prepared. Officials stated that in many cases, section 

390 categorical exclusions are replacing an environmental assessment or a 

determination of NEPA adequacy. In these cases, each resource specialist 

will save somewhere between a half hour and an hour in documenting his 

or her concurrence with a project, and the natural resource specialist will 

orical 

e 

save an hour or two in preparing the final document, according to officials. 

nt. 

heir 

ions 

e 

cials, 

 

In other cases, according to officials, section 390 categorical exclusions 

have been used to approve APDs that, without the exclusions, would have 

normally been approved using a more detailed environmental assessme

In addition, officials in some offices told us that the use of section 390 

categorical exclusions saved time in some cases because cumulative 

impact analysis or response to public comments—which sometimes would

have occurred in the absence of section 390 categorical exclusions—were 

avoided. For instance, a BLM official in the Pinedale, Wyoming, field office

told us that adding wells to one of its fields by means of traditional NEPA

analysis and documentation would have required additional cumulative 

impact analysis because of the proximity of the well pads to one another.24

With the section 390 categorical exclusions, on the other hand, according 

to this official, this office was able to approve a number of wells and t

associated roads one at a time without this additional analysis, since 

section 390 categorical exclusions do not require cumulative impact 

analysis even when many wells are approved for one geographic area. 

Other BLM officials told us that, while section 390 categorical exclus

do not include cumulative impact analysis, this analysis is generally 

relatively minor in the traditional environmental assessment, so th

difference between using section 390 categorical exclusions and 

traditional NEPA documentation was less significant. Moreover, in the 

absence of section 390 categorical exclusions, according to BLM offi

24According to some BLM officials, however, conducting cumulative impacts analyses for 

environmental assessments is redundant, given that the agency carries out cumulative 

impacts analyses at the programmatic level, such as in the environmental impact statement 

associated with a resource management plan or an oil and gas field development plan. As 

such, some BLM officials believe that the use of section 390 categorical exclusions do not 

result in the loss of important information on cumulative environmental impacts. 

Page 20 GAO-09-872 Section 390 Categorical Exclusions
 

public comments on such analyses may lead BLM to alter approved 

development actions, making the timing of the APD approvals a great deal 

less predictable. 

e 

e 

ent 

n 

 field 

toward processing additional APDs rather than toward other activities. 

hat 

es, 

y 

e 

als 

s 

Because it is not always clear how oil and gas development would hav

proceeded in the absence of section 390 categorical exclusions, BLM 

officials told us that estimating the amount of time saved by using th

exclusions is difficult. In field offices where section 390 categorical 

exclusions are used to approve APDs or nondrilling actions relatively 

infrequently—to add a small number of wells to a previously existing pad 

or to add a few pipelines in right-of-way corridors, for instance—officials 

told us that a typical section 390 categorical exclusion approval docum

saved a few hours of total staff time. Offices that used the section 390 

categorical exclusions in this manner told us that the overall time savings 

was not great, simply because the exclusions were not used that often. I

contrast, in field offices where section 390 categorical exclusions were

used more often, the time savings was cumulatively more significant. 

Officials in these field offices told us that while the savings for a single 

APD did not by itself mean that the APD was approved in fewer calendar

days, the total number of APDs processed in the office in a given period 

was probably larger because of the cumulative time saved by using section 

390 categorical exclusions. Such savings probably did accrue in these

offices because staff hours saved in processing APDs were directed 

Industry officials with whom we spoke stated that BLM’s use of section 

390 categorical exclusions has generally decreased APD-processing times, 

although these officials also stated that this increased efficiency was more 

pronounced in some field offices than in others. While acknowledging t

the type of development and availability of NEPA documents are both 

critical factors, they also stressed that differences in field office polici

field office operations, and field management personalities generall

influence how readily a given BLM field office will use section 390 

categorical exclusions. For example, according to industry officials, som

field offices are conservative and cautious, reluctant to use section 390 

categorical exclusions if even minimal environmental or cultural resource 

concerns exist. This tendency runs counter to what some industry offici

told us is their interpretation of the law—namely, that they believe that

section 390 categorical exclusions should be used whenever a project 

meets the required conditions. Industry officials told us that in some case

BLM is overly cautious in applying section 390 categorical exclusions, in 

part because BLM fears litigation from environmental groups. Although 

industry officials complained about lack of consistency among BLM field 

Page 21 GAO-09-872 Section 390 Categorical Exclusions
 

offices in how section 390 categorical exclusions are used, overall, these 

officials told us, section 390 categorical exclusions are a useful tool and 

have contributed to expedited application processing. They app

exclusions for reducing redundant and time-consuming NEPA 

documentatio

laud the 

n and making APD application processing more predictable 

and flexible. 

e to 

rease. 

g 

se the time 

 officials, 

dicate additional staff time toward environmental 

inspections. 

 

According to BLM, section 390 categorical exclusions are an important 

tool for increasing efficiency of field office operations, which has freed 

staff time for other activities. These other activities may include additional 

environmental inspections, at the discretion of the field office. BLM data 

indicated that the total number of environmental inspections, as well as 

the total number of environmental inspection hours, has increased since 

section 390 categorical exclusions were introduced, but we were unabl

correlate increased use of section 390 categorical exclusions with this 

increase in environmental inspections. A variety of factors other than 

section 390 categorical exclusions probably contributed to the inc

Perhaps most significant, BLM hired approximately 200 full-time 

employees from fiscal year 2006 through fiscal year 2008, including 

inspectors, as part of an oil and gas federal streamlining pilot project 

under the Energy Policy Act of 2005.25 In addition, BLM officials told us, 

the amount of time office staff spend doing environmental inspections in a

given year is a decision made by each field office when balancing staffin

levels with competing priorities, such as the need to process additional 

APDs. According to officials, although section 390 categorical exclusions 

did free up staff time, the decision in many field offices was to u

to process backlogged APDs. Now that the demand for energy 

development has subsided in many areas, according to some BLM

they might de

25Pub. L. No. 109-58, §365, 119 Stat. 723 (2005). 

Page 22 GAO-09-872 Section 390 Categorical Exclusions
 

BLM’s Use of Section 

390 Categorical 

Exclusions Has 

Frequently Been Out 

of Compliance with 

Both the Law and 

BLM’s Implementing 

Guidance 

BLM’s field offices used section 390 categorical exclusions to approve oil 

and gas activities in violation of the law and also failed to follow agency 

guidance. A lack of clear guidance and oversight by the agency 

contributed to both violations of law and noncompliance with guidance. 

BLM Has Approved Oil 

and Gas Activities in 

Violation of the Law 

In our review of BLM’s section 390 decision documents, we found six 

types of violations of the Energy Policy Act of 2005 (see table 4). 

Table 4: Summary of Violations of Section 390 of the Energy Policy Act of 2005 

Violation 

BLM field office(s) where 

violation was found 

Criteria from the Energy Policy Act 

of 2005, section 390 Findingsa

Using a section 390 

CX2 or CX3 to 

approve more 

than one wellb

Bakersfield, Calif. 

Buffalo, Wyo. 

Casper, Wyo. 

Craig, Colo. 

Glenwood Springs, Colo. 

Grand Junction, Colo. 

Price/Moab, Utah 

Tulsa, Okla. 

Vernal, Utah 

White River, Colo. 

Worland/Cody, Wyo. 

The law defines section 390 CX2 and 

CX3 as “drilling an oil or gas well” 

[emphasis added]. Thus, each of these 

categorical exclusions is to be used for 

approving a single well on a well pad. In 

practice, a field office must prepare one 

decision document that outlines the 

rationale for a proposed new activity. 

Well pads can have multiple wells 

operating at the same time, but for wells 

approved with a section 390 CX2 or 

CX3, each new well must be approved 

using a separate decision document. 

We found 31 instances (at 11 field 

offices) that used a single section 390 

CX2 and/or CX3 decision document to 

approve more than one well. For 

example, the Glenwood Springs, 

Colorado, field office approved 8 new 

wells on one well pad using a section 

390 CX3 decision document. Overall, 

we added more than 800 uses of 

section 390 categorical exclusions to 

BLM’s count to adjust for field offices’ 

approving multiple wells with a single 

decision document.b

Page 23 GAO-09-872 Section 390 Categorical Exclusions
 

Violation 

BLM field office(s) where 

violation was found 

Criteria from the Energy Policy Act 

of 2005, section 390 Findingsa

Using a section 390 

CX2 or CX3 to 

approve an activity 

other than drilling 

an oil or gas well 

Bakersfield, Calif. 

Buffalo, Wyo. 

Carlsbad/Hobbs, N.Mex. 

Casper, Wyo. 

Glenwood Springs, Colo. 

Jackson, Miss. 

Lander, Wyo. 

Pinedale, Wyo. 

Rawlins, Wyo. 

Vernal, Utah 

Worland/Cody, Wyo. 

The law states that a section 390 CX2 

or CX3 applies to “drilling an oil or gas

well” [emphasis added]. 

We found numerous examples at 

11 field offices that used a section 390 

CX2 or CX3 to approve an activity other 

than drilling an oil or gas well. 

Specifically, we found 7 instances at 

5 field offices from our sample, as well 

as more than 140 other instances at the 

11 field offices from our analysis of BLM 

field office summary data on their use of 

section 390 categorical exclusions. 

Violations we found in our sample 

included using a section 390 CX2 to 

approve the drilling of three wells to 

store water (for use during oil or gas 

drilling), approving a right-of-way 

corridor, or the installation of electrical 

lines. 

Drilling a new well 

approved using a 

section 390 CX2, 

CX3, or CX4 beyond 

the applicable 5-year 

time framec

Dickinson, N.Dak. 

Grand Junction, Colo. 

Rawlins, Wyo. 

The law establishes a 5-year time frame 

for section 390 CX2, CX3 and CX4. 

• Section 390 CX2 restricts new 

drilling to a “location or well pad 

site at which drilling has 

[previously] occurred within 

5 years.” 

• Section 390 CX3 limits the 

approval of a new well to a site that 

has “an approved land use plan or 

any environmental document 

prepared pursuant to NEPA, . . . so 

long as such plan or document was 

approved within 5 years” of the 

drilling date of the new well. 

• Section 390 CX4 confines the 

“placement of a pipeline in an 

approved right-of-way corridor, so 

long as the corridor was approved 

within 5 years prior to the date of 

the placement of the pipeline.” 

We found 3 instances (at 3 field offices) 

where activities approved with either a 

section 390 CX2, CX3, or CX4 occurred 

beyond the law’s 5-year time frame. For 

example, the Grand Junction, Colorado, 

field office approved a section 390 CX2 

decision document for a new well close 

to the end of the 5-year time frame, and 

the new well was drilled about a month 

after the 5-year time frame elapsed. We 

also found a well, approved by the 

Dickinson, North Dakota, field office 

using a section 390 CX3, where the 

drilling started 2 months after the 5-year 

time frame elapsed. In addition, we 

found that the Rawlins, Wyoming, field 

office in 2007 used a section 390 CX4 

to approve placement of a new pipeline 

in a right-of-way corridor approved in 

October 1994. The new pipeline was 

approved 8 years after the end of the 

allowable 5-year time frame.c

Page 24 GAO-09-872 Section 390 Categorical Exclusions
 

Violation 

BLM field office(s) where 

violation was found 

Criteria from the Energy Policy Act 

of 2005, section 390 Findingsa

Approving a new oil 

or gas well at a site 

that had not yet 

been drilled 

Glenwood Springs, Colo. 

Rawlins, Wyo. 

The law limits a well approved using a 

section 390 CX2 to “a location or well 

pad at which drilling has occurred.” 

We found 5 instances (at 2 field offices) 

that used a section 390 CX2 to approve 

new wells on sites that did not have any 

wells started or drilled. We found one 

instance at the Rawlins, Wyoming, field 

office as part of our sample, and we 

found four instances at the Glenwood 

Springs, Colorado, field office as a 

result of separate follow-up discussions. 

As part of our follow-up with the 

Glenwood Springs, Colorado, field 

office we reviewed all section 390 CX2 

decision documents approved from 

fiscal year 2006 through fiscal year 

2008. We found four section 390 CX2 

decision documents that clearly stated 

that the oil or gas company leasing the 

site had not drilled any other wells. 

Using section 390 

CX5 for ineligible 

activities 

Anchorage, Alaska 

Worland/Cody, Wyo. 

The law limits use of section 390 CX5 

to projects for “maintenance of a minor 

activity.” BLM guidance further defines 

minor activities as “maintenance of the 

wells or wellbore, a road, well pad or a 

production facility” and does not allow 

“construction or major renovation of a 

building or facility.” 

We found 4 instances (at 2 field offices) 

of using section 390 CX5 to approve 

(1) drilling wells to store natural gas 

(two instances), (2) installation of a 

pipeline to transport water, and (3) a 

request for a 1-year extension of three 

APDs. 

Approving a section 

390 CX3 without 

sufficient supporting 

NEPA 

documentation 

Jackson, Miss. The law restricts a well approved using 

section 390 CX3 to one that is “within a 

developed field for which an approved 

land use plan or any environmental 

document prepared pursuant to NEPA” 

has been prepared. Therefore, new 

wells are limited to locations that the 

field office previously analyzed in an 

approved NEPA document. 

We found one instance (at a field office) 

of using a section 390 CX3 to approve a 

new well without having an approved 

NEPA document as support. 

Source: GAO analysis of section 390 of the Energy Policy Act of 2005, a sample of section 390 categorical exclusion decision 

documents, and related follow-up interviews with BLM officials. 

a

We reviewed a nongeneralizable random sample of 215 section 390 categorical exclusion decision 

documents and followed up with officials from specific field offices if this review surfaced additional 

issues. 

b

Approving more than one well through a single decision document for section 390 CX1 is also out of 

compliance with BLM guidance (see following section). 

c

Approving an activity outside of the 5-year time frame set forth in section 390 CX2, CX3, and CX4 is 

also out of compliance with BLM guidance (see following section). 

Page 25 GAO-09-872 Section 390 Categorical Exclusions
 

BLM Frequently Failed to 

Follow Its Guidance in 

Using Section 390 

Categorical Exclusions 

In our review of BLM section 390 decision documents, we found numerous 

examples of noncompliance with BLM’s guidance—specifically, with 

Instruction Memorandum No. 2005-247 and BLM’s NEPA handbook, 

appendix 2—including inaccurate documentation or lack of justification 

for the use of the section 390 categorical exclusion (see table 5). 

Specifically, decision documents from 17 field offices lacked sufficient 

information to ascertain compliance with the law or BLM guidance. 

Table 5: Summary of Noncompliance with BLM Guidance 

Noncompliance 

BLM field office(s) where 

noncompliance was found 

Criteria from BLM 

guidance Findingsa

Noncompliance related to specific section 390 categorical exclusions 

Using section 390 CX1 to 

approve more than one well 

Bakersfield, Calif. 

Buffalo, Wyo. 

Casper, Wyo. 

Craig, Colo. 

Glenwood Springs, Colo. 

Pinedale, Wyo. 

Price/Moab, Utah 

Salt Lake, Utah 

Vernal, Utah 

BLM guidance states that 

any of the five types of 390 

categorical exclusions 

applies to one APD 

(representing one activity). 

Therefore, only one activity 

related to oil and gas 

exploration can be 

approved with a single 

section 390 CX1. 

We found 15 instances (at 9 field 

offices) that approved more than one 

activity—multiple wells in all 

instances—using section 390 CX1. For 

example, the Bakersfield, California, 

field office approved 23 new wells 

under one section 390 CX1 decision 

document. In addition, the field office 

categorized each of the 23 new wells 

under a single NEPA number.b

 The 

Price/Moab, Utah, field office approved 

16 new wells on 8 different leases 

under one section 390 CX1 decision 

document. 

Page 26 GAO-09-872 Section 390 Categorical Exclusions
 

Noncompliance 

BLM field office(s) where 

noncompliance was found 

Criteria from BLM 

guidance Findingsa

Noncompliance related to allowable 5-year time frames 

Using incorrect expiration dates 

for activities approved with a 

section 390 CX2 or CX3

Bakersfield, Calif.c

Glenwood Springs, Colo.c 

Pinedale, Wyo. 

Price/Moab, Utah 

White River, Colo. 

BLM guidance states that 

drilling a new well or 

placement of a new 

pipeline using a section 390 

CX2 must be based on the 

drill date of the previous 

well. Therefore, BLM 

guidance requires each 

section 390 CX2 decision 

document to include the 

date when work on the 

site’s prior well ended. This 

date becomes the start 

date for the 5-year time 

frame in which drilling must 

begin for any new well 

approved using section 390 

CX2. 

We found 6 instances (at 3 field 

offices) of using an incorrect date to 

calculate the start of the 5-year time 

frame for drilling a new well. Instead of 

citing dates associated with work on 

the sites’ previous wells, the decision 

documents generally based the 

expiration dates on the dates the 

decision documents were authorized. 

In addition, one section 390 CX2 

decision document from the White 

River, Colorado, field office based the 

time frame on dates listed for a NEPA 

document rather, than for the site’s 

existing wells. 

In addition, as a result of discussions 

with 3 field offices—Bakersfield, 

California, as well as Glenwood 

Springs and White River, Colorado—

we found that incorrect office-wide 

policies were promulgated on how to 

reconcile the 5-year time frame in the 

law with the normal APD time frame. 

(For a more detailed discussion of the 

confusion between the time frames in 

the law and the normal APD time 

frames, see app. III.) 

Page 27 GAO-09-872 Section 390 Categorical Exclusions
 

Noncompliance 

BLM field office(s) where 

noncompliance was found 

Criteria from BLM 

guidance Findingsa

Failing to include required text 

defining expiration dates for 

APDs or nondrilling actions 

approved using section 390 

CX2, CX3, or CX4 

Anchorage, Alaska 

Bakersfield, Calif. 

Buffalo, Wyo. 

Carlsbad/Hobbs, N.Mex. 

Casper, Wyo. 

Craig, Colo. 

Dickinson, N.Dak. 

Farmington, N.Mex. 

Glenwood Springs, Colo. 

Grand Junction, Colo. 

Jackson, Miss. 

Lander, Wyo. 

Price/Moab, Utah 

Rawlins, Wyo. 

Salt Lake, Utah 

San Juan Public Lands 

 Center, Colo. 

Tulsa, Okla. 

Vernal, Utah 

White River, Colo. 

Worland/Cody, Wyo. 

BLM guidance requires 

section 390 CX2, CX3, and 

CX4 decision documents to 

include specific text 

defining the last day the a 

new project can begin.d

Specifically: 

• A section 390 CX2 

decision document 

must include text that 

defines the new 

project’s end date in 

relation to a date that 

activity last occurred 

on the site. 

• A section 390 CX3

decision document 

must include text that 

defines the new 

project’s end date in 

relation to the approval 

date of the associated 

NEPA documentation. 

• A section 390 CX4 

decision document 

must include an end 

date by which the 

approved pipeline must 

begin to be placed in 

relation to the date the 

existing corridor was 

approved. 

We found 95 instances (in 20 field 

offices) without the required expiration 

dates. Specifically, 

• 27 instances (in 13 field offices) 

for section 390 CX2 decision 

documents, 

• 39 instances (in 14 field offices) 

for section 390 CX3 decision 

documents, and 

• 29 instances (in 12 field offices) 

for section 390 CX4 decision 

documents. 

Noncompliance related to documentation 

Applying the extraordinary 

circumstances checklist for 

section 390 categorical 

exclusion decisions 

Anchorage, Alaska 

Carlsbad/Hobbs, N.Mex. 

Jackson, Miss. 

BLM guidance directs field 

office staff not to follow the 

extraordinary 

circumstances checklist 

when using section 390 

categorical exclusions. 

We found 21 instances (at 3 field 

offices) where projects were reviewed 

using the extraordinary circumstances 

checklist and the results were included 

in their respective section 390 

categorical exclusion decision 

documents. 

Page 28 GAO-09-872 Section 390 Categorical Exclusions
 

Noncompliance 

BLM field office(s) where 

noncompliance was found 

Criteria from BLM 

guidance Findingsa

Lack of adequate justification to 

ascertain compliance with use 

of section 390 CX1, CX2, CX3, 

or CX4 

Anchorage, Alaska 

Bakersfield, Calif. 

Buffalo, Wyo. 

Carlsbad/Hobbs, N.Mex. 

Casper, Wyo. 

Craig, Colo. 

Dickinson, N.Dak. 

Glenwood Springs, Colo. 

Grand Junction, Colo. 

Jackson, Miss. 

Kemmerer, Wyo. 

Pinedale, Wyo. 

Rawlins, Wyo. 

Tulsa, Okla. 

Vernal, Utah 

White River, Colo. 

Worland/Cody, Wyo. 

BLM guidance includes a 

requirement that the 

approval documentation 

contain a brief rationale 

justifying why the section 

390 categorical exclusion 

applies for a section 390 

CX1, CX2, CX3, or CX4. 

We found 17 field offices whose 

decision documents contained 

inadequate supporting information for 

us determine whether the use of the 

section 390 categorical exclusion was 

justified. In most cases, the missing 

information was technical in nature and 

related to the specific conditions that 

must be met when using a section 390 

categorical exclusion. For example, a 

section 390 CX3 decision document 

from the Vernal, Utah, field office did 

not state whether the project would 

occur in a developed oil field. Although 

we requested additional supporting 

information from field offices when 

questions arose, we did not review the 

entire APD file in every case to 

determine if the missing supporting 

information or documentation was 

included somewhere else in the file. 

Source: GAO analysis of section 390 of the Energy Policy Act of 2005, a sample of section 390 categorical exclusion decision 

documents, and related follow-up interviews with BLM officials. 

a

We reviewed a nongeneralizable random sample of 215 section 390 categorical exclusion decision 

documents and followed up with officials from specific field offices if this review surfaced additional 

issues. 

b

Each decision document includes a number—referred to as a NEPA number—that is a unique 

identifier for the project approved using a section 390 categorical exclusion. 

c

We did not find any section 390 decision documents at the Bakersfield, California, and Glenwood 

Springs, Colorado, field offices with incorrect expiration dates. As a result of discussion with these 

two field offices, however, along with the White River, Colorado, field office, we found that they all had 

promulgated incorrect office-wide policies on how to reconcile the 5-year time frame in the law with 

the normal APD time frame. Had their section 390 decision documents included expiration dates 

calculated in accordance with their respective office policies, the expiration dates would have fallen 

outside of the 5-year time frame stated in the law. The three field offices reported using section 390 

CX2, CX3, or CX4 a total of 551 times (see app. III). 

d

BLM’s Instruction Memorandum No. 2005-247, appendix 2, and BLM’s NEPA handbook, appendix 2, 

both give sample wording for text defining the end date of a section 390 CX2 and CX3 project. For 

example, “If the well has not been spudded [drilled] by (the date the categorical exclusion is no longer 

applicable), this APD will expire and the operator is to cease all operations related to preparing to drill 

the well.” 

Lack of Clear Guidance 

and Oversight Contributed 

to Violations of the Law 

and Noncompliance 

Overall, we found many more examples of noncompliance with guidance 

than violations of the law. We did not find intentional actions on the part 

of BLM staff to circumvent the law; rather, our findings reflect what 

appear to be honest mistakes stemming from confusion in implementing a 

new law with evolving guidance. 

Page 29 GAO-09-872 Section 390 Categorical Exclusions
 

Nevertheless, even though some of the violations of law—such as 

approving multiple wells with one decision document—were technical in 

nature, they must still be taken seriously. Assuming that wells were all 

located on the same well pad and that appropriate approvals were 

obtained regarding endangered species and cultural resources, coming 

into compliance may simply have involved assigning a unique NEPA 

number to each well. The action would still have been approved under a 

section 390 categorical exclusion, with comparable environmental 

analyses completed for the proposed projects. Also, if any of the activities 

we identified as violations of the law met conditions for using a section 

390 categorical exclusion other than the one used to approve them, such 

activities could have been legally approved under that other exclusion, 

again without any additional environmental review. In some instances, 

however, violations we found may have thwarted NEPA’s twin aims of 

ensuring that both BLM and the public are fully informed of the 

environmental consequences of BLM’s actions. For example, approval of 

multiple wells on one or more well pads could have required an 

environmental assessment or environmental impact statement, which 

would likely have provided additional information on the environmental 

impacts of approving multiple wells. According to BLM officials, the 

outcome of the NEPA process likely would have yielded the same result. 

Nevertheless, the purpose of NEPA is to provide better information for 

decision making, not necessarily to alter the decisions ultimately made. 

Although the projects would likely have been approved, the specific 

location and conditions of approval might have been different, and BLM 

and the public might have had more detailed information on the 

environmental impacts of the approvals. 

A lack of definitive and clear guidance from BLM, as well as lack of 

oversight of field offices’ actions, has contributed to the violations of law 

and noncompliance with BLM’s existing guidance. Although BLM has 

provided several key guidance documents—including Instruction 

Memorandum No. 2005-247, issued 2 months after the law’s passage, and 

its NEPA handbook issued in 2008—this guidance lacks the specificity and 

examples needed to clearly direct staff in the appropriate use and limits of 

section 390 categorical exclusions. Specifically, BLM’s guidance says little, 

if anything, about (1) the documentation needed to support a decision to 

use a section 390 categorical exclusion or (2) the proper circumstances for 

using section 390 categorical exclusions to approve sundry notices. 

Furthermore, BLM headquarters and state offices we spoke with have 

generally not provided any oversight or review of the field offices’ actions 

in using section 390 categorical exclusions that would ensure compliance 

with the law or BLM guidance. 

Page 30 GAO-09-872 Section 390 Categorical Exclusions
 

BLM guidance says little about the information field offices must include 

in documenting their decisions to use section 390 categorical exclusions. 

As a result, the type and level of documentation staff provide when using 

section 390 categorical exclusions to approve projects varies widely. 

Although BLM’s primary guidance documents state that staff should 

include a written rationale justifying how a particular section 390 

categorical exclusion applies, the guidance does not describe how specific 

this justification must be and gives little direction on the type of 

information field offices should include in the decision document. BLM 

guidance directs staff to include specific information in decision 

documents only for section 390 CX2, CX3, and CX4, and these directions 

are limited to requiring inclusion of a term or condition of approval stating 

when authorization of a project will expire or be suspended if a new well 

is not drilled or a new pipeline is not placed within the 5-year window 

provided in the law. BLM guidance does not require staff to include any 

other specific information when documenting a decision to use a section 

390 categorical exclusion. For example, the guidance contains no 

requirement that staff include the name of either the land use plan or the 

applicable NEPA document when using a section 390 CX3. While some of 

the decision documents we analyzed contained enough information for us 

to determine whether the proposed activity met the conditions for using a 

particular section 390 categorical exclusion, we found examples at most 

field offices where we could not ascertain compliance. 

Some field offices have developed their own formal and informal 

templates for documenting their use of section 390 categorical exclusions; 

these templates differ greatly among field offices, however, and some staff 

acknowledged to us that mistaken applications of section 390 categorical 

exclusions may have been compounded by the continued use of faulty 

templates. Several field offices told us that they developed their own 

templates to expedite documentation. For example, the Farmington, New 

Mexico, field office developed a template calling for summary information 

on the project, as well as a listing of required conditions that must be met, 

with blank spaces for staff to enter supporting information, such as date 

and underlying NEPA document for section 390 CX3.26 Similarly, the 

Buffalo, Wyoming, and Carlsbad, New Mexico, field offices developed 

separate templates for those types of section 390 categorical exclusions 

they commonly used. According to BLM officials, the templates used by 

 

26The Farmington, New Mexico, field office used mostly section 390 CX3s in fiscal years 

2006 through 2008. 

Page 31 GAO-09-872 Section 390 Categorical Exclusions
 

field offices were not generally reviewed or approved by either BLM 

headquarters or, in some cases, the applicable BLM state office, although 

BLM headquarters officials were aware of their development and use. In 

contrast, officials in the Bakersfield, California, field office told us they 

used an informal template—copying a recent section 390 decision 

document and replacing the previous project-specific information—to 

document their use of that section 390 categorical exclusion. While these 

templates may have helped expedite documentation, many of the 

templates have failed to include important information, and others have 

resulted in the inclusion of information based on erroneous interpretations 

of the law or guidance. For example, templates from some field offices do 

not include a statement indicating that an authorization will expire or be 

suspended at the end of the 5-year time frame, while others included an 

expiration date based on incorrect calculations of the 5-year time frame 

called for by section 390 CX2 and CX3. When faulty templates are used, 

the template itself reinforces potentially erroneous decisions, exacerbating 

concerns that BLM may be inappropriately using section 390 categorical 

exclusions. 

In contrast, BLM has developed official checklists and templates for use 

when documenting other NEPA decisions, including environmental 

assessments, determinations of NEPA adequacy, and administrative 

categorical exclusions.27 According to BLM headquarters officials, these 

checklists and templates are additional tools to help ensure compliance 

with NEPA requirements. The tools may also help ensure consistency and 

serve as helpful aids for staff new to the process. 

BLM guidance is also silent about the circumstances under which section 

390 categorical exclusions can be used to approve sundry notices—an 

omission acknowledged by BLM officials. For instance, although section 

390 CX2 and CX3 are limited to approving oil and gas drilling, according to 

BLM headquarters officials, BLM guidance fails to specify that section 390 

CX2 and CX3 should not be used to approve sundry notices seeking to 

modify previously approved drilling permits, such as requests to drill 

water injection wells. BLM field offices reported 9 such ineligible uses for 

section 390 CX2 and 137 for section 390 CX3. Moreover, BLM guidance on 

section 390 CX1 fails to provide examples of situations where it is 

allowable to use section 390 CX1 to approve a sundry notice—such as 

 

27These templates are found in BLM’s NEPA handbook, appendixes 9, 8, and 6, 

respectively. 

Page 32 GAO-09-872 Section 390 Categorical Exclusions
 

adding a compressor to the well pad site—and, in fact, fails to mention 

whether section 390 CX1 can properly be used to approve sundry notices 

at all. Similarly, BLM’s guidance fails to clearly state that section 390 CX4 

and CX5 can be used only for rights-of-way or sundry notices and not for 

APDs, since, according to BLM headquarters staff, APDs are not the 

proper tool to seek approval for laying pipelines or conducting 

maintenance. In our analysis of decision documents, we found at least 

two such ineligible uses of section 390 CX5. BLM’s failure to provide 

information on when and if it is appropriate to use section 390 categorical 

exclusions to approve sundry notices has raised concerns for some that 

BLM field offices are using the exclusions inappropriately and that BLM is 

not being transparent about how the section 390 categorical exclusions 

are used. 

Similarly, BLM guidance is silent about what activities are allowed as 

“drilling an oil or gas well” with a section 390 CX2 and CX3. For example, 

BLM’s primary guidance does not state whether the proposed drilling is 

limited only to those activities needed to drill and produce oil or gas as 

described in the approved APD, or whether subsequent modifications to 

an approved APD and not initially envisioned—such as the placement of a 

pipeline or drilling water storage wells—are also allowable. BLM guidance 

provides few, if any, examples related to when it is appropriate to approve 

activities not part of the original drilling plan, an omission leading some 

field offices to approve ineligible activities. Such approvals have raised 

concerns that BLM is allowing too broad an array of activities and is 

therefore, again, not being transparent about its use of section 390 

categorical exclusions. 

Gaps and shortcomings in BLM’s guidance notwithstanding, having the 

guidance is one thing, and enforcing it is another. BLM headquarters and 

state offices have generally provided no oversight of the implementation of 

the new law to ensure that field offices are implementing either the law or 

existing guidance properly. BLM’s implementing guidance is silent on what 

oversight is required for decisions to use section 390 categorical 

exclusions, and we found no directions for how or when section 390 

categorical exclusion decisions should be systematically reviewed for 

compliance with either the law or guidance. BLM headquarters staff told 

us that no such oversight exists on a national level. While we found that 

BLM’s Colorado state office initially conducted a cursory review of section 

390 categorical exclusion decisions by its field offices, this review was 

temporary and did not focus on whether uses of section 390 categorical 

exclusions were consistent with BLM guidance or the law; moreover, it is 

unclear what checks this review performed. For example, the review 

Page 33 GAO-09-872 Section 390 Categorical Exclusions
 

failed to catch that two Colorado field offices misinterpreted the 5-year 

time limit associated with section 390 CX2 and CX3. Furthermore, BLM 

headquarters staff acknowledged that although they would like to include 

a review of how section 390 categorical exclusions have been used as part 

of an annual policy review, they have not had the resources to do so. 

Lack of clarity in section 390 of the Energy Policy Act of 2005 and in BLM’s 

implementing guidance has raised serious concerns about when and how 

section 390 categorical exclusions should be used to approve oil and gas 

development. Specifically, concerns raised by industry, environmental 

groups, BLM officials, and others relate to (1) fundamental questions 

about what section 390 categorical exclusions are and how they should be 

used, (2) a lack of clarity in key concepts used to describe one or more of 

the five types of section 390 categorical exclusions, and (3) vague or 

nonexistent definitions—in the law and BLM guidance—of key terms 

describing the conditions to be met when using section 390 categorical 

exclusions. 

Lack of Clarity in the 

Law and in BLM 

Guidance Has Raised 

Serious Concerns 

The Energy Policy Act of 

2005 Provides Little 

Direction, Raising 

Fundamental Questions 

on How BLM Should 

Implement Section 390 

Categorical Exclusions 

Key elements of section 390 of the Energy Policy Act of 2005 are 

undefined, leading to fundamental questions about what section 390 

categorical exclusions are and how they should be used. This lack of 

direction leaves these elements open to differing interpretations, debate, 

and litigation and has, more generally, led to serious concerns that BLM is 

using section 390 categorical exclusions in too many—or too few—

instances. BLM officials, environmental groups, industry groups, and 

others have raised serious concerns with the law as a whole. These 

concerns relate to four key elements: (1) the definition of “categorical 

exclusion” and whether the screening for extraordinary circumstances is 

required, (2) whether the use of section 390 categorical exclusions is 

mandatory or discretionary, (3) the meaning of the phrase “rebuttable 

presumption,” and (4) the level of public disclosure required for section 

390 categorical exclusions. 

The Energy Policy Act of 2005 does not specifically address the extent to 

which section 390 categorical exclusions are similar or dissimilar—or to 

what extent—to administrative categorical exclusions. Administrative 

categorical exclusions do not apply where extraordinary circumstances 

are present.28 The Energy Policy Act of 2005 does not specifically state 

What Are Section 390 

Categorical Exclusions, 

and Are They Subject to 

Extraordinary Circumstances? 

 

28See 40 C.F.R. § 1508.4. 

Page 34 GAO-09-872 Section 390 Categorical Exclusions
 

whether section 390 categorical exclusions are subject to extraordinary 

circumstances. Moreover, according to BLM officials, section 390 

categorical exclusions differ substantively from administrative categorical 

exclusions: whereas administrative categorical exclusions must have no 

significant environmental impact, there is no specific requirement that 

section 390 categorical exclusions have no such impact. To this end, BLM 

officials and environmental groups alike acknowledge that, to the extent 

that section 390 categorical exclusions function differently than 

administrative categorical exclusions, identifying the activities listed in 

section 390 as “categorical exclusions” is confusing, and they should have 

been given a different name. 

A key disagreement and concern involving the phrase “categorical 

exclusion” is whether section 390 categorical exclusions should be subject 

to the same test for extraordinary circumstances that administrative 

categorical exclusions are subject to. These extraordinary circumstances 

exist where a normally excluded action may have a significant 

environmental effect. Several environmental groups, historic preservation 

groups, concerned citizens, government officials, and others told us that 

section 390 categorical exclusions cannot be used where extraordinary 

circumstances are present. This interpretation stems from the law’s use of 

the phrase “categorical exclusion”—which under NEPA is subject to 

extraordinary circumstances—and the inherent potential for significant 

individual or cumulative environmental impacts associated with oil and 

gas activities. 

In contrast to those who interpret the law as inherently requiring section 

390 categorical exclusions to be subject to screening for extraordinary 

circumstances, Interior and BLM have taken the position that 

extraordinary circumstances do not apply to section 390 categorical 

exclusions because they are authorized in statute rather than in regulation. 

Specifically, it is BLM’s policy that staff do not screen projects considered 

for approval with section 390 categorical exclusions using the 

extraordinary circumstances checklist required for administrative 

categorical exclusions. Officials told us that the NEPA documents 

underlying field office decisions to use section 390 categorical exclusions 

already analyze the potential impacts of oil and gas activities, and BLM has 

therefore already considered cumulative impacts and extraordinary 

circumstances. Moreover, although BLM guidance directs field office staff 

not to follow the extraordinary circumstances checklist when using 

section 390 categorical exclusions, BLM officials stated that staff formally 

or informally consider some of the issues covered on the checklist. For 

example, BLM cannot approve an APD until the requirements of the 

Page 35 GAO-09-872 Section 390 Categorical Exclusions
 

National Historic Preservation Act and the Endangered Species Act, 

among others, have been met.29 The presence of endangered species or 

historic resources that may be significantly affected by oil and gas 

activities are two potential extraordinary circumstances identified on 

BLM’s checklist. In addition, we found three field offices that formally 

used the extraordinary circumstances checklist in documenting their use 

of section 390 categorical exclusions, despite guidance to the contrary. 

BLM officials in headquarters and several field offices also acknowledged 

that staff informally consider many of the extraordinary circumstances 

when reviewing projects, even though doing so may result in the need to 

develop a new NEPA document to approve the project when an 

extraordinary circumstance is present. Even so, many see developing new 

NEPA documentation as more expedient than using a potentially 

controversial section 390 categorical exclusion that may be litigated. 

Of the various extraordinary circumstances, concerns about the 

cumulative impacts of additional oil or gas development—especially 

adverse effects of such development on air quality—have been among the 

most widespread and potentially serious. Environmental groups and 

government agencies alike have raised concerns that section 390 

categorical exclusions exacerbate air quality problems and threats by not 

subjecting projects to screening for extraordinary circumstances. 

According to the Environmental Protection Agency and others, ozone 

levels around at least three field offices—Farmington, New Mexico; 

Pinedale, Wyoming; and Vernal, Utah—have reached or exceeded 

allowable levels, in part because of the release of nitrogen oxides from 

additional wells approved with section 390 categorical exclusions. Under 

such circumstances, many have alleged that if BLM had considered how 

the wells individually or cumulatively would have affected air quality, it 

would not have been able to approve all the wells without more rigorous 

environmental analyses. Another concern related to cumulative impacts, 

according to BLM officials and at least one environmental group, is that 

the drilling of additional oil or gas wells using section 390 categorical 

exclusions has led to a spider-web pattern of development, resulting in the 

fragmentation of critical habitat and disruption of migration corridors for 

certain species such as sage grouse, prong-horn antelope, and elk 

(see fig. 4). 

 

29During our review, we found two instances in which, according to BLM documents, the 

White River, Colorado, field office approved an APD using a section 390 categorical 

exclusion for which the analysis required under section 106 of the National Historic 

Preservation Act appears to be erroneous or improperly conducted. 

Page 36 GAO-09-872 Section 390 Categorical Exclusions
 

Figure 4: Spider-web Pattern of Development (c. 2004) and Antelope in Front of Wells in a Wildlife Corridor in Pinedale, 

Wyoming (October 2008) 

Source: Linda Baker, Upper Green River Valley Coalition (left), and GAO (right).

These uncertainties and disagreements are central to an ongoing lawsuit 

filed against BLM over its use of section 390 categorical exclusions.30 In 

the litigation, an historic preservation group and two environmental 

groups have asserted that BLM should have considered the indirect, as 

well as the direct, cumulative impacts of drilling, such as corrosive dust 

released into the air and onto neighboring rock art panels in Nine Mile 

Canyon, Utah (see fig. 5). BLM has responded that it properly analyzed 

effects of dust on the canyon’s rock art panels and took measures to 

mitigate these impacts, including imposing—through conditions of 

approval on the relevant APDs—dust suppression measures on truck 

traffic thr

the 

ough the canyon. 

 

30Nine Mile Canyon Coalition v. Stiewig, Civ. No. 08-586, D. Utah (filed Aug. 6, 2008). 

Page 37 GAO-09-872 Section 390 Categorical Exclusions
 

Figure 5: Warning Sign and the Great Hunt Panel in Nine Mile Canyon, Utah (October 2008) 

Source: GAO.

Note: The Great Hunt Panel is one of thousands of pictographs in Nine Mile Canyon. 

The law does not specifically state whether the use of section 390 

categorical exclusions is mandatory for every project meeting the 

conditions set forth in the law. The legislative history for section 390 of the 

Energy Policy Act of 2005 is virtually nonexistent and sheds little light on 

whether Congress intended that section 390 categorical exclusions be 

mandatory or discretionary. While the language in a House version of the 

bill specifically exempted from additional NEPA analysis activities similar 

to those meeting the conditions for a section 390 categorical exclusion as 

described in the law—meaning that use of the new provisions would have 

been mandatory—the law as enacted contained no such specific 

exclusion. Instead, the law contains a qualification that the activities in 

question “shall be subject to a rebuttable presumption” that they are 

categorically excluded from further NEPA review.31 Whatever this 

language means, it certainly differs from the mandatory exemption 

language that existed in the House bill. Without additional congressional 

Are Section 390 Categorical 

Exclusions Mandatory? 

 

31During Senate floor debates on the conference version of the bill, which ultimately 

became law, one of the bill’s supporters stated that the bill “does not include categorical 

waivers for NEPA for oil and gas developments.” 151 Cong. Rec. S9340 (daily ed. 

July 29, 2005) (statement of Senator Akaka). 

Page 38 GAO-09-872 Section 390 Categorical Exclusions
 

clarification, disagreements over the meaning of the provision will 

continue, a situation acknowledged by BLM. 

Although one of BLM’s key guidance documents—Instruction 

Memorandum No. 2005-247—includes language that can be interpreted to 

mean that BLM must use a section 390 categorical exclusion whenever a 

project meets the required conditions, mandatory use is not the current 

position of BLM headquarters. BLM headquarters’ 2006 and 2008 

presentations on how to use section 390 categorical exclusions clearly 

direct staff to approve projects using determinations of NEPA adequacy if 

using a section 390 categorical exclusion would not save time, and they 

advocate caution when deciding to use section 390 categorical exclusions. 

Such directions demonstrate that BLM has taken the position that, in 

practice, some level of discretion is warranted when considering section 

390 categorical exclusions. Despite this position, BLM headquarters 

officials acknowledged that state offices have the authority to mandate the 

use of section 390 categorical exclusions by their field offices. The 

interpretation by some BLM offices that section 390 categorical exclusions 

are mandatory has raised concerns for some environmental groups and 

others that BLM is using section 390 categorical exclusions too often and 

when more appropriate methods for approving a project could better 

protect the natural resources. At the same time, some industry 

representatives believe that BLM must use section 390 categorical 

exclusions whenever a project meets the conditions for one and thus BLM 

is not using them often enough. 

We found that many field offices are using section 390 categorical 

exclusions with some level of discretion, such as choosing to do an 

environmental assessment in cases where projects seem politically 

controversial or may have a significant effect on wildlife. For example, the 

Farmington and Carlsbad, New Mexico, field offices prohibit staff from 

using section 390 categorical exclusions in areas formally classified as 

sensitive, such as areas of critical environmental concern.32 In contrast, 

the Vernal, Utah, field office approved section 390 categorical exclusions 

for activities located in areas of critical environmental concern. In 

addition, some officials told us they interpreted the law and BLM’s 

 

32This prohibition is a statewide policy of BLM’s New Mexico state office. Areas of critical 

environmental concern are areas within the public lands where special management 

attention is required to protect and prevent irreparable damage to important historic, 

cultural, or scenic values; fish and wildlife resources; or other natural systems or processes 

or to protect life and safety from natural hazards. 43 C.F.R. § 1601.0-5(a). 

Page 39 GAO-09-872 Section 390 Categorical Exclusions
 

guidance to mean that section 390 categorical exclusions are mandatory 

whenever a project meets the conditions for one of the five types of 

section 390 categorical exclusions, regardless of whether another NEPA 

compliance approach, such as an environmental assessment or 

administrative categorical exclusion, would also have been applicable. F

example, according to officials from the Carlsbad, New Mexico, field 

office, they used section 390 CX4 even in situations where they said an 

administrative categorical exclusion would have been applicable an

quicker, for example, despite the time-consuming effort needed to verify 

that a project fits within the 5-year time limitation for a sect

or 

d 

ion 390 CX4. 

 

The Energy Policy Act of 2005 does not specify what the “rebuttable 

presumption” provision in section 390 means or how BLM is supposed to 

implement it, which has led to serious disagreements over how to interpret 

the phrase. The law does not clearly explain the meaning of the 

presumption or how to rebut the presumption. Section 390(a) states: 

What Does the Phrase 

“Rebuttable Presumption” 

Mean? 

“[a]ction by the Secretary of the Interior in managing the public lands, or the Secretary of 

Agriculture in managing National Forest System Lands, with respect to any of the activities 

described in subsection (b) shall be subject to a rebuttable presumption that the use of a 

categorical exclusion under the National Environmental Policy Act of 1969 (NEPA) 

would apply if the activity is conducted pursuant to the Mineral Leasing Act for the 

purpose of exploration or development of oil or gas.”33 [emphasis added] 

Consequently, opinions differ as to what rebuttable presumption refers to; 

what items are open to rebuttal; and in what forum any public challenges 

to the use of section 390 categorical exclusions can be made, if any. 

According to Interior officials, the phrase “rebuttable presumption” is not 

typically used in NEPA or environmental case law; both Interior and BLM 

officials have characterized the meaning of the phrase in section 390 as 

murky. According to Interior officials, section 390 categorical exclusions 

are allowable as long as there is no convincing rebuttal.34 Interior has 

interpreted this section to mean that when a drilling activity proposed in 

an APD appears to meet the requirements of section 390, BLM presumes 

that a section 390 categorical exclusion will comply with NEPA unless this 

presumption is rebutted by showing that one or more of the required 

33Pub. L. No. 109-58, § 390(a), 119 Stat. 747 (2005), codified at 42 U.S.C. § 15942(a). 

34Proposed activities must also be conducted pursuant to the Mineral Leasing Act and meet 

the conditions for one or more of the five types of section 390 categorical exclusions. 

Page 40 GAO-09-872 Section 390 Categorical Exclusions
 

conditions are not present. For example, the presumption that a section 

390 CX2 applies to a given project could be rebutted by showing that the 

well described in the APD is not on a location or well pad site at which 

previous drilling has occurred within 5 years before the date the proposed 

well is to be spudded. In contrast, environmental groups and others told us 

that the presumption means that significant environmental impacts are 

presumed unlikely to result from the proposed project. They told us that 

they believe the presumption can be rebutted by showing that any 

extraordinary circumstances are present. This rebuttable presumption 

element has given rise to litigation pending in the federal district court in 

Utah. 

Besides the confusion and disagreement over what the rebuttable 

presumption is, uncertainty exists because the law fails to specify the 

process under which any rebuttal can take place. The law does not set 

forth procedures for challenging section 390 categorical exclusion 

decisions during the decision process. Public challenges to the use of 

section 390 categorical exclusions are complicated by the possibility that 

drilling may have already occurred, and the adverse effects may already 

have begun, by the time the public finds out about a project. As a result, 

serious concerns exist as to what part, if any, of a section 390 categorical 

exclusion decision is open to rebuttal and in what way the public can 

challenge BLM’s use of section 390 categorical exclusions. 

Section 390 of the Energy Policy Act of 2005 does not specify procedures 

for involving or informing either the public or other government agencies 

when section 390 categorical exclusions are used. According to Interior 

and BLM officials, there is no requirement to publicly disclose that BLM 

used a section 390 categorical exclusion to approve a project or to 

disclose approved section 390 categorical exclusion decision documents. 

In this context, the public depends on the discretion of each field office for 

such disclosure. As with the initial 30-day disclosure of summary 

information related to an APD before its approval,35 BLM field offices have 

different degrees and methods of disclosing information related to 

decisions on section 390 categorical exclusions. For example, some field 

offices, such as White River and Glenwood Springs, Colorado, publicly 

disclose online which APDs they approved with section 390 categorical 

exclusions, much as they disclose decisions to use environmental 

assessments or administrative categorical exclusions. Some field offices, 

What Level of Public 

Disclosure Is Required for 

Section 390 Categorical 

Exclusions? 

 

3543 C.F.R. § 3162.3-1(g). 

Page 41 GAO-09-872 Section 390 Categorical Exclusions
 

such as Farmington, New Mexico, and Vernal, Utah, told us they have also 

developed mailing lists for disseminating certain information related to 

section 390 categorical exclusion decisions to interested persons, upon 

request, and the Buffalo, Wyoming, field office posts certain approved 

section 390 categorical exclusion decision documents online. In contrast, 

other field offices, such as Price/Moab, Utah, and Pinedale, Wyoming, do 

not publicly disclose their decisions to use section 390 categorical 

exclusions and, in fact, require the public to file Freedom of Information 

Act requests to identify which projects BLM approved using section 390 

categorical exclusions and to obtain copies of approved section 390 

categorical exclusion decision documents.36 In some cases, it is difficult 

for other governmental agencies—including state environmental 

agencies—and the public to determine whether BLM has used a se

390 categorical exclusion until it is too late to comment on, or challen

BLM’s action. 

ction 

ge, 

on 

ate 

 

When the public and other federal and state agencies do not have a 

reliable or consistent way of determining which projects have been 

approved with section 390 categorical exclusions, they lack a fundamental 

piece of information needed to hold BLM accountable for their use. This 

point is particularly important given that the public generally has 20 days 

to request a state director review of APD approvals.37 According to 

officials from both federal and state agencies, government officials outside 

of BLM also do not know when projects are being approved using secti

390 categorical exclusions—a situation that can hamper federal or st

agencies responsible for monitoring natural resources affected by drilling 

and energy production, such as air quality, endangered species, or other 

wildlife. 

36Because of concerns over inappropriate release of confidential information and 

overburdening of field office staff, BLM’s Utah and Wyoming state offices both require that 

the public submit requests under the Freedom of Information Act to obtain information 

related to an APD besides what is available in the public book during the initial 30-day 

posting. 

3743 C.F.R. § 3165.3(b). 

Page 42 GAO-09-872 Section 390 Categorical Exclusions
 

In addition to the fundamental concerns with the law as a whole, the law’s 

descriptions of the five types of section 390 categorical exclusions have 

prompted more specific concerns about how to appropriately use one or 

more of the five types of section 390 categorical exclusions. These 

concerns relate to (1) the adequacy of NEPA documents supporting the 

use of a particular section 390 categorical exclusion, (2) consistency with 

existing NEPA documents, (3) the rationale for the 5-year time frame used 

in some but not all types of section 390 categorical exclusions, and (4) the 

piecemeal approach to development fostered by using section 390 

categorical exclusions. 

Individuals and groups, both inside and outside BLM, have raised serious 

concerns about the adequacy of the NEPA documents required to support 

the use of certain types of section 390 categorical exclusions. For 

example, environmental groups and other government agencies question 

the appropriateness of including a land use plan as one of the prerequisite 

environmental analysis documents under section 390 CX3, because such 

resource management plans (and their associated environmental impact 

statements) are the broadest type of analysis of potential impacts—a 

concern that BLM officials acknowledged. By their nature, these plans 

generally do not analyze environmental effects of a specific project or at a 

specific location. BLM officials characterized land use plans as a 

“30,000-foot analysis” of possible development, as compared with the 

analysis the agency generally carries out for an APD, which is a much 

more thorough examination of a specific project in a specific location. 

Furthermore, several groups have alleged that by allowing BLM to tie a 

section 390 categorical exclusion solely to higher-level analyses, such as 

resource management plans and their associated environmental impact 

statements, the law has allowed a shell-game to occur: that is, at the 

planning stage BLM can defer site-specific NEPA analyses and 

documentation until the project approval stage, and at the project 

approval stage,38 it can then avoid performing such site-specific analysis by 

using a section 390 CX3 supported by the resource management plan. For 

example, while the 2003 resource management plan in effect for the 

Farmington, New Mexico, field office during our review explicitly states 

that site-specific environmental impacts were not assessed by the 

environmental impact statement and will be deferred to the APD stage, 

section 390 CX3 allowed this field office to approve individual projects 

Key Concepts Underlying 

One or More Types of 

Section 390 Categorical 

Exclusions Have 

Sparked Debate 

Adequacy of Supporting 

NEPA Documents 

 

38The deferred site-specific NEPA analysis and documentation are typically associated with 

environmental assessments, according to BLM. 

Page 43 GAO-09-872 Section 390 Categorical Exclusions
 

without carrying out this site-specific analysis. According to some 

environmental groups, this shell-game is of particular concern with the 

recent approval of a number of controversial new resource management 

plans, such as those released at the end of 2008 for six BLM field offices in 

Utah. Furthermore, while some industry and BLM officials we spoke with 

told us that certain resource management plans contained an adequate 

analysis of potential impacts of oil and gas development, other BLM 

officials and environmental groups advocated for a change in the law’s 

wording to specifically exclude resource management plans from the list 

of allowable NEPA documents for section 390 CX3—a position that BLM 

headquarters officials acknowledged has merit. 

Environmental groups have raised similar concerns over the site 

specificity of NEPA documents supporting decisions to use section 390 

CX1. BLM has explicitly listed the various NEPA documents it considers as 

site specific under this categorical exclusion—such as an exploratory 

environmental impact statement—but we were told repeatedly by 

environmental groups and others that site specificity is appropriately 

satisfied only by environmental assessments covering individual projects 

or small areas. 

Concerns have also arisen about whether BLM has approved 

environmental assessments despite knowing that the assessment did not 

cover the full number of wells the operators expected to drill in the area 

for which section 390 categorical exclusions were used to approve APDs. 

We found at least one instance in which a field office approved an initial 

environmental assessment nearly 2 months after the office began the 

approval process for 18 additional wells in that location using section 390 

CX2. Although these 18 additional wells were approved with section 390 

CX2 shortly after the initial environmental assessment itself was approved, 

it appears that BLM staff knew that the operator intended to drill these 

18 wells before they approved the environmental assessment, even though 

the wells were not included in the scope of that environmental 

assessment. Approval of an environmental assessment that was, in effect, 

outdated before it was signed raises troubling questions about the extent 

to which BLM is using section 390 categorical exclusions in a manner that 

undermines NEPA’s purposes of fully informing the agency itself and the 

public of the environmental consequences of proposed actions. 

Another serious concern is whether section 390 categorical exclusions 

allow BLM to approve projects that are not consistent with the NEPA 

documents to which they are tied, thus allowing BLM to approve 

development in excess of the development scenarios analyzed in the 

Consistency with Existing 

NEPA Documents 

Page 44 GAO-09-872 Section 390 Categorical Exclusions
 

supporting NEPA documents. Environmental impact statements 

associated with resource management plans and field development 

projects, as well as environmental assessments for multiwell projects, 

generally contain a reasonably foreseeable development scenario that 

(1) includes long-term projections of the number of wells to be drilled and 

the acres to be disturbed and (2) may trigger the agency to consider 

conducting additional NEPA analysis in approving activities exceeding 

these projected development levels. Serious concerns have arisen, 

however, that BLM’s interpretation and use of section 390 categorical 

exclusions have resulted in approval of well numbers and surface 

disturbances beyond the development levels analyzed in existing NEPA 

documents. 

Section 390 specifically requires the existence of underlying NEPA 

documents only for section 390 CX1 and CX3. BLM guidance states that 

only section 390 CX1 and CX3 are tied to an underlying NEPA document—

a position that BLM reiterated when it issued a correction to its 2008 

NEPA handbook. BLM guidance states that section 390 CX2 does not refer 

to any underlying NEPA document. According to at least one BLM official 

and one industry representative, this position has allowed the Price/Moab, 

Utah, field office to approve section 390 CX2s for more new wells than the 

number analyzed in the existing environmental assessment for the West 

Tavaputs area. Because the law uses the language “pursuant to NEPA” 

only in reference to section 390 CX1 and CX3, several people we 

interviewed expressed concerns that the law provides BLM with a 

mechanism to authorize development in excess of the reasonably 

foreseeable development scenarios BLM analyzed under NEPA, without 

performing any further NEPA analysis. 

To address concerns that section 390 categorical exclusions enable BLM 

to exceed the limits of the underlying NEPA documents, the Governor of 

Wyoming proposes changing the law from “pursuant to NEPA” to 

“consistent with NEPA”—a change acknowledged as beneficial and 

supported by BLM headquarters staff with whom we spoke. Similarly, 

given concerns about oil and gas development inconsistent with 

reasonably foreseeable development scenarios, the Western Governors’ 

Association and the Association of Fish and Wildlife Agencies propose 

changing the law to limit the use of section 390 CX3 so as to better protect 

wildlife. Furthermore, several BLM officials we spoke with told us that 

such language should be applied to all five types of section 390 categorical 

exclusions. 

Page 45 GAO-09-872 Section 390 Categorical Exclusions
 

The inconsistent application of a time limit to some, but not all, types of 

section 390 categorical exclusions has led to claims that such constraints 

are both too long and too short, as well as to concerns that uniform time 

constraints should be applied to all types of section 390 categorical 

exclusions if they apply to any. Some BLM officials we spoke with 

expressed confusion over why section 390 CX2, CX3, and CX4 may be 

used only within 5 years of specified analyses or actions, while section 390 

CX1 and CX5 do not have such constraints. The reasons for constraining 

some types of section 390 categorical exclusions but not others—

especially given that well drilling is allowed under section 390 CX1—were 

not specified in the law. Nor does the law make clear how and why time 

limits were set at 5 years, although at least one official we spoke with 

assumed this limit was supposed to represent the average period NEPA 

analyses remained up-to-date. According to some BLM officials we spoke 

with, NEPA analyses generally become stale or irrelevant after several 

years as the landscape and resource circumstances change. In this light, 

some expressed concerns that 5 years was too long, since the energy 

boom led to development in certain areas far beyond what the NEPA 

analyses considered foreseeable. Consequently, for those who see the 

5-year time limit as too long, such as the Bakersfield, California, field 

office, the validity of section 390 categorical exclusions throughout the 

5-year window may mean that some activities or projects approved as 

section 390 categorical exclusions might be more appropriately approved 

using new and more rigorous NEPA analyses. 

Rationale for the 5-year Time 

Frames in Some but Not All 

Section 390 Categorical 

Exclusions 

At the same time, others expressed concern that imposing a 5-year time 

limit on certain section 390 categorical exclusions was too short, in part, 

because NEPA analyses may stay relevant for longer than 5 years, 

especially given that staff always conduct on-site inspections of the 

proposed drilling site as part of the APD review and approval process. 

Consequently, for those who see the 5-year time limit as too short, such as 

the Rawlins, Wyoming, field office, the inability to use section 390 

categorical exclusions after the statutory time limit has passed causes 

them to resume carrying out what they consider to be redundant NEPA 

analyses. Finally, numerous BLM officials and others told us that the law’s 

mention of a time limit for section 390 CX2, CX3, and CX4—but not 

section 390 CX1—seemed arbitrary. For example, while the law allows the 

Pinedale, Wyoming, field office to use an environmental assessment from 

1991 as support in approving an APD with a section 390 CX1, it would not 

allow that same 18-year-old environmental assessment to support the 

same APD if approved with a section 390 CX3. 

Page 46 GAO-09-872 Section 390 Categorical Exclusions
 

The law’s focus on individual wells and projects has raised concerns that 

section 390 categorical exclusions foster a piecemeal approach to oil and 

gas development, which may undermine strategic planning efforts that 

aim, in part, to consider cumulative impacts. Some field offices, such as 

Buffalo, Wyoming, and Glenwood Springs, Colorado, use master 

development plans or other tools that group together multiple wells for 

development. But section 390 categorical exclusions are limited to 

individual wells, thus creating a disincentive, in some cases, to approve 

development according to such master planning techniques. The fostering 

of a piecemeal approach further exacerbates concerns about whether 

(1) BLM can use section 390 categorical exclusions to approve the drilling 

of wells exceeding the number analyzed under NEPA, (2) section 390 

categorical exclusions allow BLM to bypass the analyses of cumulative 

impacts done to mitigate effects on wildlife and other resources, and 

(3) section 390 creates an incentive to conduct shortsighted environmental 

assessments that will quickly become obsolete with the approval of 

additional wells using section 390 categorical exclusions. 

Piecemeal Approach to 

Development 

Both the Law and BLM’s 

Implementing Guidance 

Lack Clear Definitions 

of Some Key Terms 

BLM officials, industry representatives, environmental groups, and others 

have raised numerous concerns about how to interpret and apply key 

terms that describe the conditions that must be met when using a section 

390 categorical exclusion. In particular, each of the five types of section 

390 categorical exclusions contain terminology that is undefined in the law 

and for which BLM has not provided clear or complete guidance. 

Specifically: 

• “Individual surface disturbances” under section 390 CX1. The law does 

not clarify what is allowable under section 390 CX1’s “individual surface 

disturbances” condition. In addition, while the law uses the term 

“individual”—which is singular—it also uses the term “disturbances”—

which is plural. This mixture has caused confusion and disagreement over 

whether the law allows BLM to use a section 390 CX1 to approve multiple 

wells. According to BLM headquarters officials and presentations they 

developed in 2006 and 2008 for state and field offices, BLM interprets this 

term to mean that each APD requires its own, separate section 390 CX1 

Page 47 GAO-09-872 Section 390 Categorical Exclusions
 

decision.39 Nevertheless, BLM’s field office officials we spoke with relied 

on Instruction Memorandum No. 2005-247, which contained confusing and 

seemingly contradictory guidance. The instruction memorandum gives an 

example of two or more wells to describe activities allowable under 

“individual surface disturbances”—implying that multiple wells may be 

allowable. The same guidance, however, also directs BLM to consider each 

APD separately, even in cases where an operator proposes multiple wells 

under a single application—implying that only one well is allowable. In 

light of such confusing guidance from BLM and vague terminology in the 

law, BLM field offices have wide-ranging interpretations about when it is 

appropriate to use section 390 CX1, with some prohibiting and many 

others erroneously approving multiple wells under a single section 390 

CX1. Moreover, despite this confusion, BLM did not clarify its guidance—

and in fact kept the same wording—when it revised this guidance in 2008 

as part of its NEPA handbook. 

• “Maintenance of a minor activity” under section 390 CX5. Neither the law 

nor BLM’s primary guidance clearly defines “maintenance of a minor 

activity.” Numerous BLM officials we spoke with told us they did not have 

a clear sense of what activities fell under “maintenance of a minor 

activity.” The concerns are varied and include (1) uncertainty as to what is 

considered maintenance that would need additional NEPA analysis for 

which a section 390 categorical exclusion could apply; (2) uncertainty as 

to what BLM considers minor; and (3) how it is possible to conduct 

maintenance on an activity at all, and thus what would be appropriate 

under section 390 CX5. Further, BLM headquarters’ presentations on 

section 390 categorical exclusions question the need for this exclusion and 

whether any situations exist that would meet this condition. In this 

context, many field offices have never or rarely used section 390 CX5 to 

approve oil or gas activities, with several telling us that they did not 

understand when it should be used or thought it was too risky to use. 

Nonetheless, several BLM field offices broadly interpreted this condition 

and used section 390 CX5 to approve activities, such as closing well 

locations and relocating discharge pits in the Worland/Cody and Buffalo, 

Wyoming, field offices respectively. And at least two BLM field offices 

approved activities, such as drilling a gas storage well or installing a 

 

39These presentations further show that this one-to-one ratio of section 390 categorical 

exclusion decisions to APDs applies to all five types of section 390 categorical exclusions. 

Each section 390 categorical exclusion applies to a single APD. Moreover, each well 

requires its own APD. BLM regulations state that “the operator shall submit to the 

authorized officer for approval an Application for Permit to Drill for each well.” 

43 C.F.R. § 3162.3-1(c) [emphasis added]. 

Page 48 GAO-09-872 Section 390 Categorical Exclusions
 

pipeline, using section 390 CX5 in violation of the law. The inconsistency 

in how field offices interpret and use section 390 CX5, and the sense that 

field offices are approving ineligible projects under section 390 CX5, have 

raised concerns that BLM is not providing adequate oversight of section 

390 categorical exclusions. 

• “Construction or major renovation or [sic] a building or facility” under 

section 390 CX5. The law does not define what should be considered as 

construction or major renovation. Confusion stems from the fact that this 

phrase can be read two different ways—to refer (a) to either the 

construction of a building or facility or the major renovation of a building 

or facility or (b) to any construction or the major renovation of a building 

or facility. While BLM’s key guidance provides some direction as to what 

activities are allowable—by excluding the addition of a compressor or gasprocessing plant—it does not address this confusion, in that it fails to 

clarify whether all construction is prohibited or just the construction of a 

building or facility. Furthermore, it fails to provide examples of activities 

that are allowable, such as whether drilling gas storage wells can be 

included. This lack of clarity has led several BLM field offices to use 

section 390 CX5s sparingly, if at all. At the same time, other field offices 

have used it more widely despite the confusion, causing some to question 

whether BLM is using section 390 CX5 in cases where it should not—such 

as to permit drilling certain types of auxiliary wells associated with oil and 

gas production—and where more rigorous environmental analysis and 

public disclosure might have been warranted. 

• “Location” under section 390 CX2. The law provides no definition or 

additional explanation of what a “location” is and how it is similar to or 

different from a well pad site. Similarly, BLM’s primary implementing 

guidance fails to distinguish between the two terms. In fact, BLM guidance 

defines both “well pad site” and “location” the same way—as a previously 

disturbed or constructed well pad used in support of drilling a well. In 

addition, limitations set forth in the guidance also fail to distinguish 

between “location” and “well pad site.”40 While the term “well pad site” is 

generally understood, BLM has not explained how or if that term differs 

from “location” and whether “location” includes surfaces previously 

analyzed but not disturbed—or subsequently reclaimed—by the initial 

drilling. Such an omission has led some to raise concerns that BLM is 

 

40The guidance also requires any associated surface disturbance or expansion of the well 

pad be connected to the original well pad or location and excludes new well sites that are 

simply in the vicinity. 

Page 49 GAO-09-872 Section 390 Categorical Exclusions
 

approving projects under section 390 CX2 that disturb more area—and 

thus the resident wildlife—than should be allowed. 

• “Right-of-way corridor” under section 390 CX4. The law does not define 

what a right-of-way corridor is or how it differs from, or is similar to, a 

specific right-of-way. In contrast, BLM’s key implementing guidance sets 

out some parameters for what does and does not constitute a right-of-way 

corridor, including stating that any type of existing right-of-way corridor 

can be used for new pipeline placement under section 390 CX4 and 

clarifying that it sees a right-of-way corridor as not limited to rights-of-way 

authorized solely under FLPMA. Despite this guidance, however, we 

repeatedly heard concerns from BLM staff that they were confused by, and 

uncomfortable using, section 390 CX4 because of confusion over how to 

interpret “corridor.” Consequently, some field offices used section 390 CX4 

sparingly, if at all. In addition, according to an official from the 

Bakersfield, California, field office, because it is the staff’s understanding 

that only right-of-way corridors authorized legislatively are allowable 

under section 390 CX4—such as the West-wide Energy Corridor, which 

designates energy corridors in 11 western states—they were unable to use 

section 390 CX4 at all. 

The failure of both the law and BLM guidance to clearly define key 

conditions that projects must meet to be eligible for approval with a 

section 390 categorical exclusion has caused confusion among BLM 

officials, industry, and the public over what activities qualify for section 

390 categorical exclusions. This confusion has also exacerbated concerns 

that using section 390 categorical exclusions decreases the transparency 

of decisions, especially in cases where BLM decides that certain projects 

meet the required conditions for using section 390 categorical 

exclusions—such as approving the drilling of dozens of wells as allowable 

“individual surface disturbances” under section 390 CX1 or permitting the 

drilling of an oil or gas well as “maintenance of a minor activity” under 

section 390 CX5. Moreover, concerns have arisen that when BLM approves 

ineligible activities, it may be more likely that the agency is overlooking 

adverse environment effects. For example, certain projects erroneously 

approved as section 390 categorical exclusions may have required more 

rigorous environmental analyses—such as environmental assessments or 

environmental impact statements—which could have assessed the need to 

mitigate potentially adverse effects on natural resources like wildlife and 

air quality. BLM recognized the potential for controversy and confusion in 

using section 390 categorical exclusions when it developed internal 

guidance to communicate its interpretation of the new law and to clarify 

certain required conditions that projects must meet to be eligible for 

Page 50 GAO-09-872 Section 390 Categorical Exclusions
 

section 390 categorical exclusions. It did not, however, choose to issue 

this information as an official agency regulation—a mechanism that would 

have been open to public review and comment, would have required BLM 

to respond to concerns raised, and likely would have held BLM to a higher 

standard in terms of oversight. 

BLM is a multiple-use agency, and oil and gas development is one of the 

many uses that occur on public lands. As a large landowner in the 

mountain West, BLM stands at the center of controversy between 

protecting the nation’s natural resources and developing the nation’s 

energy and mineral resources to help alleviate dependence on foreign 

sources of oil. Section 390 of the Energy Policy Act of 2005, in part, has 

been interpreted by some to shift the agency’s priorities more heavily 

toward resource extraction at the expense of certain other agency 

missions, especially protecting its environmental resources. It is unclear, 

however, whether this shift was intended by the legislation. Virtually no 

legislative history exists that sheds light on how section 390 of the Energy 

Policy Act of 2005 should be interpreted. The lack of clarity in key 

provisions and phrases in the law itself and this lack of a clarifying 

legislative history have thus left virtually every key provision of section 

390 open to conflicting interpretations. In some cases, BLM as the main 

implementing agency has made legal interpretations in an effort to clarify 

guidance for its state and field offices, but in other cases it has not. 

Interior and BLM have decided that the extraordinary circumstances 

checklist should not be used for section 390 categorical exclusions and 

that the use of section 390 categorical exclusions can only be “rebutted” 

on the grounds that BLM is not following the law. These issues, among 

others, are currently being litigated in one of the first cases in federal court 

on section 390 categorical exclusions. Litigation can be costly and timeconsuming, and it may not put to rest or resolve all the questions about the 

law. 

Conclusions 

The problems with section 390 have not gone unnoticed in Congress. 

Several bills were introduced in the last Congress and in the current one 

that would address the rebuttable presumption issue.41 Consideration of 

 

41For example, H.R. 2828, § 1714(h), introduced on June 11, 2009, would strike the 

rebuttable presumption language, so that the law would state that the relevant activities 

“shall be subject to a categorical exclusion” under NEPA. A bill introduced in the previous 

Congress, H.R. 2337, § 106(c), would have required BLM and the U.S. Forest Service to 

adhere to Council on Environmental Quality regulations, specifically those involving 

extraordinary circumstances, in administering section 390. 

Page 51 GAO-09-872 Section 390 Categorical Exclusions
 

bills such as these would give Congress the opportunity to clarify this 

language and other murky provisions in section 390. Regardless of the 

confusion surrounding certain elements of the law as currently written, 

BLM is responsible for ensuring that its field offices use section 390 

categorical exclusions appropriately. We found numerous instances of 

both violations of the law and noncompliance with BLM’s existing 

guidance. The primary guidance documents BLM headquarters 

disseminated to its state and field offices provided some useful 

information on implementing section 390 of the Energy Policy Act of 2005 

but failed to provide explicit and sufficient guidance on how and when to 

use section 390 categorical exclusions. Without corrections to the gaps 

and shortcomings in BLM’s existing guidance, compliance problems will 

likely persist that may thwart NEPA’s twin aims of ensuring that both BLM 

and the public are fully informed of the environmental consequences of 

BLM’s actions, field offices will continue to interpret section 390 

categorical exclusions inconsistently and sometimes incorrectly, and the 

public’s confidence and trust in BLM’s decision making will continue to 

erode. 

One technique that has proven helpful in ensuring compliance with NEPA 

decision-making processes has been the development of standardized 

templates for field office staff to follow. While BLM has developed and 

disseminated templates to its field offices for documenting certain NEPA 

decisions, such as environmental assessments and administrative 

categorical exclusions, it has no such agencywide template for section 390 

categorical exclusions. As a result, some field offices have developed 

informal or formal templates of their own. These templates differ greatly 

from field office to field office, however, and some staff have 

acknowledged that mistaken use of section 390 categorical exclusions has 

been compounded by continued use of faulty templates. BLM management 

acknowledges that a standardized document would be helpful in ensuring 

that section 390 categorical exclusions are used appropriately and had 

hoped to develop such a template—especially in light of the varied and 

particular criteria required by each of the five types of section 390 

categorical exclusions—but BLM has not done so to date. Without 

consistent minimum information included in decision documents for 

section 390 categorical exclusions, the public lacks the information 

needed in many cases to not only understand BLM’s rationale for using a 

particular type of section 390 categorical exclusion, but also to rebut the 

agency’s presumption in using a section 390 categorical exclusion. This 

variability undermines BLM’s implementation of section 390 of the Energy 

Policy Act of 2005, as well as public understanding of and confidence in 

BLM’s actions. 

Page 52 GAO-09-872 Section 390 Categorical Exclusions
 

Furthermore, BLM must ensure that its guidance is followed. 

Implementing a new law can be a high-risk endeavor requiring intensified 

oversight in the start-up years to help ensure compliance until the 

processes become standard. Without a plan or mechanism for BLM 

management at the headquarters or state level to oversee the use of 

section 390 categorical exclusions by its field offices, BLM lacks basic 

tools to ensure compliance with either the Energy Policy Act of 2005 or its 

own guidance. Consequently, noncompliance with the law and BLM 

guidance—such as policies that allow, in practice, drilling after the 5-year 

time limit has expired or that allow inappropriate nondrilling activities to 

be approved—has been allowed to persist. Oversight is needed to help 

ensure that section 390 categorical exclusions are used appropriately—

neither under- nor overused—and to ensure that the agencies adequately 

further NEPA’s purposes. 

This report has identified a number of significant issues with respect to 

section 390 of the Energy Policy Act of 2005 that have become a source of 

confusion for BLM and its field offices as they implement the law. 

Congress should consider amending section 390 to clarify and resolve 

some of the key issues identified in this report, including, but not limited 

to (1) clearly specifying whether section 390 categorical exclusions apply 

even in the presence of extraordinary circumstances and (2) clarifying 

what the phrase “rebuttable presumption” means and how BLM must 

implement it in the context of section 390. 

In the interim, to improve BLM field offices’ implementation of section 390 

categorical exclusions—to reduce noncompliance and clarify how and 

when section 390 categorical exclusions are to be used—we recommend 

that the Secretary of the Interior direct the Director of BLM to take the 

following three actions: 

Matter for 

Congressional 

Consideration 

Recommendations for 

Executive Action 

• issue detailed and explicit guidance that addresses the gaps and 

shortcomings in its present guidance; 

• provide standardized templates or checklists for each of the five types of 

section 390 categorical exclusions, which would specify, at minimum, 

what documentation is required to justify their use; and 

• develop and implement a plan for overseeing the use of section 390 

categorical exclusions to ensure compliance with both law and guidance. 

Page 53 GAO-09-872 Section 390 Categorical Exclusions
 

We provided a draft of this report to the Department of the Interior for 

review and comment. The department concurred with our 

recommendations and stated that it and BLM will take immediate steps to 

ensure that the use of section 390 categorical exclusions is consistent with 

the Energy Policy Act of 2005 and BLM guidance. The department also 

provided several technical clarifications, which we incorporated as 

appropriate. Appendix IV contains the Department of the Interior’s 

comment letter. 

Agency Comments 

We are sending copies of this report to the appropriate congressional 

committees, the Secretary of the Interior, the Director of the Bureau of 

Land Management, the Administrator of the Environmental Protection 

Agency, and other interested parties. In addition, this report will be 

available at no charge on the GAO Web site at http://www.gao.gov. 

If you or your staff members have any questions about this report, please 

contact me at (202) 512-3841 or nazzaror@gao.gov. Contact points for our 

Offices of Congressional Relations and Public Affairs may be found on the 

last page of this report. GAO staff who made major contributions to this 

Robin M. Nazzaro 

report are listed in appendix V. 

Director, Natural Resources and Environment 

Page 54 GAO-09-872 Section 390 Categorical Exclusions
Appendix I: Objectives, Scope, and 

Methodology 

Page 55 GAO-09-872 

Appendix I: Objectives, Scope, and 

Methodology 

This report examines (1) the extent to which the Department of the 

Interior’s Bureau of Land Management (BLM) has used section 390 

categorical exclusions each fiscal year from 2006 through 2008 and the 

benefits, if any, associated with their use; (2) the extent to which BLM has 

used section 390 categorical exclusions in compliance with the Energy 

Policy Act of 2005 and internal BLM guidance; and (3) the key concerns, if 

any, associated with section 390 categorical exclusions. We included the 

use of section 390 categorical exclusions on the Department of 

Agriculture’s U.S. Forest Service lands in the data summarizing the extent 

to which BLM used section 390 categorical exclusions,1

 because although 

the Forest Service is responsible for approving all aboveground use of 

their lands, BLM independently evaluates and approves the applications 

for permit to drill (APD), in accordance with a memorandum of 

understanding between the two agencies. Section 390 categorical 

exclusions are not used on Indian trust lands. 

For all three report objectives, we reviewed relevant laws, regulations, and 

Department of the Interior and BLM guidance. We interviewed officials in 

BLM headquarters and the 11 BLM field offices (and their associated state 

offices) that processed the most APDs from fiscal year 2006 through fiscal 

year 2008. Specifically, we visited and interviewed officials in three BLM 

state offices (Colorado, Utah, and Wyoming) and 8 BLM field offices 

(Glenwood Springs, in Colorado; Price/Moab and Vernal, in Utah; Buffalo, 

Casper, Pinedale, and Rawlins in Wyoming; and Farmington, in New 

Mexico), and interviewed by telephone officials in two additional state 

offices (California, New Mexico) and 3 additional field offices 

(Bakersfield, California; Carlsbad/Hobbs, New Mexico; and White River, 

Colorado). In addition, we interviewed representatives from industry, 

historic preservation groups, citizens’ groups, and environmental groups 

about actual and potential benefits and concerns related to section 390 

categorical exclusions or BLM’s use of the exclusions. In addition, we 

collected and analyzed data from BLM’s Automated Fluid Minerals 

Support System database, and we reviewed section 390 categorical 

exclusion decision documents provided to us by BLM field offices. 

 

1

We did not include these U.S. Forest Service section 390 categorical exclusions in our 

sample of reviewed decision documents because BLM initially indicated to us that Forest 

Service section 390 categorical exclusions should not be counted as a BLM action. After we 

drew our sample and conducted our file reviews, BLM reversed itself and decided that the 

Forest Service section 390 categorical exclusions should be counted as a BLM action. 

 Section 390 Categorical Exclusions 
Appendix I: Objectives, Scope, and 

Methodology 

To determine the extent to which BLM used section 390 categorical 

exclusions each fiscal year from 2006 through 2008, we requested data 

from BLM headquarters and all 30 BLM field offices that processed APDs 

during this period. In addition, we contacted officials in many of these 

field offices to explain, clarify, and correct incomplete or possibly 

erroneous data in the summary data files they provided us. We compared 

the data supplied by BLM headquarters with those supplied by each of the 

30 BLM field offices and sought clarification and explanation for data 

discrepancies. In addition, our review of more than 300 section 390 

categorical exclusion decision documents (see detailed explanation 

below) identified a small number of record-keeping errors in field office 

data, which we corrected in the summary data files where possible. The 

small number of discrepancies identified during our review of specific 

section 390 categorical exclusion decision documents did not appear to be 

systemic and do not affect the overall accuracy of the summary data 

presented in this report. 

To determine the benefits of using section 390 categorical exclusions, we 

conducted semi-structured interviews with the 11 BLM field offices that 

processed the most APDs during fiscal years 2006 through 2008. For these 

interviews, we spoke with a natural resource specialist—a BLM official 

typically leading the team analyzing proposed oil and gas projects—from 

each field office. We used a standardized interview protocol, in which 

respondents were asked a standard set of open-ended questions. We asked 

these officials to identify factors that contribute to, and factors that 

hinder, their ability to use section 390 categorical exclusions to expedite 

processing of APDs and sundry notices for oil and gas projects, as well as 

how much time, if any, is saved by using section 390 categorical exclusions 

instead of environmental assessments or determinations of NEPA 

adequacy. To find concrete examples of the factors contributing to or 

hindering the use of section 390 categorical exclusions, we also discussed 

specific cases in which field offices used section 390 categorical 

exclusions. 

In addition to these interviews, we also analyzed data on processing time 

and environmental inspections in an attempt to determine whether 

processing times decreased or inspection frequencies increased as a result 

of using section 390 categorical exclusions. Adequate data were not 

available to support any conclusions, however. We analyzed data from 

BLM’s Automated Fluid Minerals Support System database but found that 

the database’s available data elements were not sufficient to isolate 

changes in processing times resulting from the use of section 390 

categorical exclusions, primarily because this database does not identify 

Page 56 GAO-09-872 Section 390 Categorical Exclusions
Appendix I: Objectives, Scope, and 

Methodology 

whether an APD was approved with a section 390 categorical exclusion or 

other NEPA compliance document, such as an environmental assessment 

or determination of NEPA adequacy. This analysis was also hampered 

because field offices used different protocols for entering information into 

certain data fields, making it unfeasible to compare changes in APD 

processing times. With data on environmental inspections, we attempted 

to determine whether use of section 390 categorical exclusions correlated 

with increased environmental inspections, while accounting for change in 

full-time staff. But BLM was unable to supply us with personnel data 

showing the number of full-time-equivalent employees working at each 

field office from fiscal year 2006 through fiscal year 2008. Therefore, 

although we were able to determine the number of environmental 

inspections and the number of hours spent on environmental inspections 

at each BLM field office, we were unable to isolate the contribution of 

time saved using section 390 categorical exclusions to any increase in 

environmental inspections. 

To determine the extent to which BLM’s use of section 390 categorical 

exclusions was in compliance with the Energy Policy Act of 2005 and 

internal BLM guidance, we reviewed a nongeneralizable random sample of 

section 390 categorical exclusion decision documents. To obtain a 

balanced assessment of the extent of any violations, we selected these 

decision documents at random from each of the 26 BLM field offices that 

used section 390 categorical exclusions during fiscal years 2006 through 

2008. While we did not design our sample to be generalizable, and 

therefore our results cannot be used to estimate the overall number of 

such violations, we reviewed at least a small sample of each type of 

section 390 categorical exclusion decision document from each office that 

used them. Specifically, we drew our sample as follows: (1) if a field office 

used fewer than 10 of a particular section 390 categorical exclusion in 

fiscal years 2006 through 2008, we randomly chose two decision 

documents; (2) if a field office used 11 through 100 of a particular section 

390 categorical exclusion, we randomly chose three decision documents; 

and (3) if a field office used more than 100 of a particular section 390 

categorical exclusion, we randomly chose five decision documents. For a 

variety of reasons—some field offices were unable to locate decision 

documents, some had mislabeled decision documents, and some were 

unable to provide them within the time frame necessary for our analysis—

we were not able to obtain all the decision documents from this initial 

request. To ensure to the greatest extent possible that our sample covered 

each field office’s uses of section 390 categorical exclusions, we 

supplemented the initial sample by requesting additional decision 

documents from selected offices. In total, we analyzed 215 section 390 

Page 57 GAO-09-872 Section 390 Categorical Exclusions
Appendix I: Objectives, Scope, and 

Methodology 

categorical exclusion decision documents from the 26 BLM field offices 

that used them from fiscal year 2006 through fiscal year 2008. The sample 

was not designed to project an overall compliance rate for all uses of 

section 390 categorical exclusions during the period, but rather to provide 

a general sense of whether any decisions violated the law or were not in 

compliance with BLM guidance on implementing section 390 categorical 

exclusions and, if so, to identify the types of such violations or 

noncompliance. To ensure we analyzed each document consistently, we 

used a standardized data collection instrument to review these decision 

documents and any associated conditions of approval or other material 

supplied by BLM field offices as part of their justifications for using each 

section 390 categorical exclusion. In cases where we found actual or 

apparent violations or noncompliance, we followed up with individual 

field offices to ascertain if such instances were isolated or systemic. This 

follow-up included conversations with field office officials, requests for 

and review of clarifying documentation on particular issues such as 

conditions of approval, as well as requests for additional section 390 

categorical exclusion decision documents beyond those originally 

included as part of the sample of 215. In total, we reviewed more than 

300 section 390 categorical exclusion decision documents. We categorized 

and summarized violations of the law and noncompliance with BLM 

guidance on the basis of this review. 

Table 6: Sample Sizes of Section 390 Categorical Exclusions from BLM Field Offices 

Total APDs and nondrilling actions (number sampled) 

BLM field office 

Section 390 

CX1

Section 390 

CX2 

Section 390 

CX3

Section 390 

CX4 

Section 390 

CX5 Total 

Buffalo, Wyo. 183 (5) 226 (5) 156 (5) 24 (5) 49 (5) 638 (25)

Rawlins, Wyo. 174 (5) 24 (3) 24 (4) 23 (3) 14 (3) 259 (18)

Pinedale, Wyo. 88 (3) 672 (4) 749 (6) 5 (2) 8 (2) 1,522 (17)

Glenwood Springs, Colo. 211 (4) 207 (4) 38 (5) 17 (3) 1 (1) 474 (17)

Carlsbad/Hobbs, N.Mex. 4 (0) 14 (6) 0 (0) 50 (6) 0 (0) 68 (12)

White River, Colo. 18 (2) 37 (3) 18 (1) 6 (2) 3 (2) 82 (10)

Vernal, Utah 70 (4) 22 (1) 1,076 (2) 21 (2) 0 (0) 1,189 (9)

Casper, Wyo. 51 (2) 0 (0) 269 (5) 2 (1) 56 (1) 378 (9)

Bakersfield, Calif. 61 (4) 27 (0) 199 (3) 2 (2) 0 (0) 289 (9)

Price/Moab, Utah 45 (3) 57 (3) 20 (3) 0 (0) 0 (0) 122 (9)

Worland/Cody, Wyo. 36 (3) 0 (0) 46 (3) 0 (0) 33 (3) 115 (9)

Lander, Wyo. 22 (2) 5 (2) 2 (2) 7 (2) 1 (1) 37 (9)

Grand Junction, Colo. 5 (2) 26 (2) 19 (2) 6 (2) 0 (0) 56 (8) 

Page 58 GAO-09-872 Section 390 Categorical Exclusions
Appendix I: Objectives, Scope, and 

Methodology 

Total APDs and nondrilling actions (number sampled) 

BLM field office 

 Section 390 

CX1

Section 390 

CX2 

Section 390 

CX3

Section 390 

CX4 

Section 390 

CX5 Total 

Jackson, Miss. 52 (4) 5 (1) 6 (2) 0 (0) 0 (0) 63 (7)

Anchorage, Alaska 3 (2) 10 (2) 1 (1) 0 (0) 2 (2) 16 (7)

Kemmerer, Wyo. 33 (3) 0 (0) 0 (0) 1 (1) 4 (2) 38 (6)

Little Snake, Colo. 8 (2) 5 (2) 0 (0) 3 (2) 0 (0) 16 (6)

Farmington, N.Mex. 0 (0) 0 (0) 1,221 (5) 0 (0) 0 (0) 1,221 (5)

Reno, Nev. 2 (2) 5 (3) 0 (0) 0 (0) 0 (0) 7 (5)

Salt Lake, Utah 4 (2) 3 (2) 0 (0) 0 (0) 0 (0) 7 (4)

Dickinson, N.Dak. 0 (0) 0 (0) 29 (3) 0 (0) 0 (0) 29 (3)

Tulsa, Okla. 0 (0) 25 (3) 0 (0) 0 (0) 0 (0) 25 (3)

Milwaukee, Wisc. 0 (0) 1 (1) 3 (2) 0 (0) 0 (0) 4 (3)

San Juan Public Lands Center, Colo. 0 (0) 0 (0) 7 (2) 0 (0) 0 (0) 7 (2)

Cañon City, Colo. 2 (2) 0 (0) 0 (0) 0 (0) 0 (0) 2 (2)

Great Falls, Mont. 1 (1) 0 (0) 0 (0) 0 (0) 0 (0) 1 (1)

Roswell, N.Mex. 0 (0) 0 (0) 0 (0) 0 (0) 0 (0) 0 (0)

Rock Springs, Wyo. 0 (0) 0 (0) 0 (0) 0 (0) 0 (0) 0 (0)

Miles City, Mont. 0 (0) 0 (0) 0 (0) 0 (0) 0 (0) 0 (0)

Newcastle, Wyo. 0 (0) 0 (0) 0 (0) 0 (0) 0 (0) 0 (0)

Total 1,073 (57) 1,371 (47) 3,883 (56) 167 (33) 171 (22) 6,665 (215)

Source: GAO. 

Note: On the basis of initial discussions with BLM officials, we did not include section 390 categorical 

exclusion decision documents approved by the U.S. Forest Service in our sample. After we had 

analyzed our sample, however, BLM changed its position and told us that section 390 categorical 

exclusions approved by the Forest Service should have been included. We therefore included these 

in tables 1, 2, and 3 of this report, which present the overall number of categorical exclusions used in 

fiscal years 2006 through 2008, but not in this table, which presents the totals in each office from 

which we drew our sample. 

To determine the key concerns, if any, associated with section 390 

categorical exclusions, we reviewed relevant land-use-planning 

documents, including resource management plans and environmental 

impact statements. We interviewed BLM headquarters, state, and field 

office officials; industry representatives; environmental groups; citizens’ 

groups; historic preservation groups; and officials from state government 

and federal regulatory agencies involved in oil and gas development on 

federal land. We synthesized the information gathered during these 

Page 59 GAO-09-872 Section 390 Categorical Exclusions
Appendix I: Objectives, Scope, and 

Methodology 

interviews to identify the concerns raised by these parties.2 To ascertain 

and understand the legal interpretations of section 390 of the Energy 

Policy Act of 2005, we also spoke with officials from Interior’s Office of 

the Solicitor. 

We conducted this performance audit from September 2008 through 

September 2009, in accordance with generally accepted government 

auditing standards. Those standards require that we plan and perform the 

audit to obtain sufficient, appropriate evidence to provide a reasonable 

basis for our findings and conclusions based on our audit objectives. We 

believe that the evidence obtained provides a reasonable basis for our 

findings and conclusions based on our audit objectives. 

 

2

During our review, we also received two allegations of inappropriate activities related to 

oil and gas development which we referred to Interior’s Office of Inspector General for 

further investigation. The first involved the Farmington, New Mexico, field office’s oil and 

gas activities in general, and the second involved the White River, Colorado, field office’s 

compliance with section 106 of the National Historic Preservation Act in general. 

Page 60 GAO-09-872 Section 390 Categorical Exclusions
Appendix II: List of Extraordinary 

Circumstances for Administrative Categorical Appendix II: List of Extraordinary Exclusions 

Circumstances for Administrative Categorical 

Exclusions 

BLM’s NEPA handbook,1 appendix 5, contains the follow list of 

extraordinary circumstances that apply to administrative categorical 

exclusions. 

“Before any non-Energy Act [categorical exclusion] is used, you must conduct sufficient 

review to determine if any of the following extraordinary circumstances apply (516 DM 2, 

Appendix 2). If any of the extraordinary circumstances are applicable to the action being 

considered, either an environmental assessment or an environmental impact statement 

must be prepared for the action. Part 516 of the Departmental Manual (516 DM 2, 

Appendix 2) states that extraordinary circumstances exist for individual actions within 

[categorical exclusions] which may: 

2.1 Have significant impacts on public health or safety. 

2.2 Have significant impacts on such natural resources and unique geographic 

characteristics as historic or cultural resources; park, recreation or refuge lands; 

wilderness areas; wild or scenic rivers; national natural landmarks; sole or principal 

drinking water aquifers; prime farmlands; wetlands (Executive Order 11990); floodplains 

(Executive Order 11988); national monuments; migratory birds; and other ecologically 

significant or critical areas. 

2.3 Have highly controversial environmental effects or involve unresolved conflicts 

concerning alternative uses of available resources [NEPA Section 102(2)(E)]. 

2.4 Have highly uncertain and potentially significant environmental effects or involve 

unique or unknown environmental risks. 

2.5 Establish a precedent for future action or represent a decision in principle about future 

actions with potentially significant environmental effects. 

2.6 Have a direct relationship to other actions with individually insignificant but 

cumulatively significant environmental effects. 

2.7 Have significant impacts on properties listed, or eligible for listing, on the National 

Register of Historic Places as determined by either the bureau or office. 

2.8 Have significant impacts on species listed, or proposed to be listed, on the List of 

Endangered or Threatened Species, or have significant impacts on designated Critical 

Habitat for these species. 

 

1

BLM, National Environmental Policy Act Handbook H-1790-1 (Washington, D.C.: 2008). 

Page 61 GAO-09-872 Section 390 Categorical Exclusions 
Appendix II: List of Extraordinary 

Circumstances for Administrative Categorical 

Exclusions 

2.9 Violate a Federal law, or a State, local, or tribal law or requirement imposed for the 

protection of the environment. 

2.10 Have a disproportionately high and adverse effect on low income or minority 

populations (Executive Order 12898). 

2.11 Limit access to and ceremonial use of Indian sacred sites on Federal lands by Indian 

religious practitioners or significantly adversely affect the physical integrity of such sacred 

sites (Executive Order 13007). 

2.12 Contribute to the introduction, continued existence, or spread of noxious weeds or 

nonnative invasive species known to occur in the area or actions that may promote the 

introduction, growth, or expansion of the range of such species (Federal Noxious Weed 

Control Act and Executive Order 13112).” 

Page 62 GAO-09-872 Section 390 Categorical Exclusions
Appendix III: Confusion between Section 390 

Categorical Exclusions and Onshore Oil and Appendix III: Confusion between Section 390 Gas Order No. 1 

Categorical Exclusions and Onshore Oil and 

Gas Order No. 1 

We found confusion at three BLM field offices over how long an APD 

approved using section 390 CX2 and CX3 remains valid. A new well 

approved using a section 390 CX2 may be drilled anytime within 5 years 

after a previously approved drilling activity has occurred on the same site. 

In contrast, BLM’s Onshore Oil and Gas Order No.1, issued on October 

21, 1983, and revised on March 7, 2007, states that an APD approval is 

generally valid for 2 years from the date that it is approved. If the operator 

submits a written request before the original approval expires, BLM may 

extend the APD’s validity for up to 2 additional years Thus, the APD 

approved with section 390 CX2 is valid until whichever of these dates 

comes first. We found two BLM field offices, however—Bakersfield, 

California, and Glenwood Springs, Colorado—that interpreted Section 390 

CX2 as requiring that the APD be approved within 5 years of the last 

drilling activity on the same site. In both offices, officials told us that they 

set the expiration date 2 years from the date of APD approval with a 

possible 2-year extension, in accordance with Onshore Oil and Gas Order 

No. 1, regardless of whether the 5 years for the section 390 categorical 

exclusion had elapsed. If a field office applied this erroneous 

interpretation of the law and BLM guidance, it could allow drilling of a 

new well up to 9 years after the last drilling activity, and up to 4 years after 

such new drilling ceased to be legal under section 390 CX2 of the Energy 

Policy Act of 2005. A similar misinterpretation of the time frames 

associated with section 390 CX3 is also possible (see fig. 6). In this case, 

the expiration of the section 390 CX3 is tied to the approval date of the 

NEPA document underlying the APD approval. We found one BLM field 

office—White River, Colorado—that interpreted section 390 CX3 in this 

way. 

Although we did not find examples where misinterpretation of the law and 

BLM guidance for section 390 CX2 or CX3 resulted in the drilling of new 

wells after the 5-year time frames associated with the law expired, we did 

find that these three field offices approved section 390 decision documents 

including erroneous expiration dates resulting from this misinterpretation. 

Page 63 GAO-09-872 Section 390 Categorical Exclusions 
Appendix III: Confusion between Section 390 

Categorical Exclusions and Onshore Oil and 

Gas Order No. 1 

Figure 6: Depiction of the Confusion Surrounding the 5-Year Time Frames for Section 390 CX2 and CX3

Source: GAO.

Section 390 categorical exclusion correctly used

Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Year 7 Year 8 Year 9

Date of last drilling activity 

on well pad or 

date underlying NEPA 

document was approved

Drilling allowed Drilling not allowed

New well

is legally

drilled

APD for new well approved;

permit expires 5 years after 

last drilling activity or 

5 years after approval of

underlying NEPA document

Section 390 categorical exclusion and Onshore Oil and Gas Order No. 1 erroneously interpreted

Date of last drilling activity 

on well pad or 

date underlying NEPA 

document was approved

Drilling allowed Drilling not allowed

New well is drilled;

 9 years after last drilling

activity at same site,

4 years after last

legal drilling date

APD for new well 

approved; permit 

expires in 2 years

2-year

permit

extension

granted

Page 64 GAO-09-872 Section 390 Categorical Exclusions
Appendix IV: Comments from the Department Appendix IV: Comments from the of the Interior 

Department of the Interior 

Page 65 GAO-09-872 Section 390 Categorical Exclusions 
Appendix V: GAO Contact and Staff Appendix V: GAO Contact and Staff Acknowledgments 

Acknowledgments 

Robin M. Nazzaro (202) 512-3841 or nazzaror@gao.gov

In addition to the contact named above, Jeffery D. Malcolm, Assistant 

Director; Mark A. Braza; Ellen W. Chu; Heather E. Dowey; Richard P. 

Johnson; Michael L. Krafve; and Tama R. Weinberg made key 

contributions to this report. Also contributing to the report were Armetha 

Liles and Kyle M. Stetler. 

Page 66 GAO-09-872 Section 390 Categorical Exclusions

GAO Contact 

Staff 

Acknowledgments 

(360995) 
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