61924 Federal Register / Vol. 82, No. 249 / Friday, December 29, 2017 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Bureau of Land Management 

43 CFR Part 3160 

[LLWO300000 L13100000 PP0000 18X] 

RIN 1004–AE52 

Oil and Gas; Hydraulic Fracturing on 

Federal and Indian Lands; Rescission 

of a 2015 Rule 

AGENCY: Bureau of Land Management, 

Interior. 

ACTION: Final rule. 

SUMMARY: On March 26, 2015, the 

Bureau of Land Management (BLM) 

published in the Federal Register a final 

rule entitled, ‘‘Oil and Gas; Hydraulic 

Fracturing on Federal and Indian 

Lands’’ (2015 rule). With this final rule, 

the BLM is rescinding the 2015 rule 

because we believe it imposes 

administrative burdens and compliance 

costs that are not justified. This final 

rule returns the affected sections of the 

Code of Federal Regulations (CFR) to the 

language that existed immediately 

before the published effective date of 

the 2015 rule (June 24, 2015), except for 

changes to those regulations that were 

made by other rules published between 

the date of publication of the 2015 rule 

and now, and the phrase ‘‘perform 

nonroutine fracturing jobs,’’ which is 

not restored to the list of subsequent 

operations requiring prior approval. 

None of the changes by other rules are 

relevant to this rulemaking. 

DATES: This final rule is effective on 

December 29, 2017. 

FOR FURTHER INFORMATION CONTACT: 

Lorenzo Trimble, Acting Division Chief, 

Fluid Minerals Division, 202–912–7342, 

for information regarding the substance 

of this final rule or information about 

the BLM’s Fluid Minerals program. 

Persons who use a telecommunications 

device for the deaf (TDD) may call the 

Federal Relay Service (FRS) at 1–800– 

877–8339, 24 hours a day, 7 days a 

week, to leave a message or question 

with the above individuals. You will 

receive a reply during normal hours. 

SUPPLEMENTARY INFORMATION: 

Executive Summary 

Pursuant to the Mineral Leasing Act 

(MLA), the Federal Land Policy and 

Management Act (FLPMA), the Indian 

mineral leasing laws, and other legal 

authorities, the BLM is charged with 

administering oil and gas operations on 

Federal and Indian lands in a manner 

that allows for responsible and 

appropriate resource development. This 

final rule is needed to prevent the 

unnecessarily burdensome and 

unjustified administrative requirements 

and compliance costs of the 2015 rule 

from encumbering oil and gas 

development on Federal and Indian 

lands. 

The process known as ‘‘hydraulic 

fracturing’’ has been used by the oil and 

gas industry since the 1950s to stimulate 

production from oil and gas wells. In 

recent years, public awareness of the 

use of hydraulic fracturing practices has 

grown. New horizontal drilling 

technology has allowed increased access 

to oil and gas resources in tight shale 

formations across the country, 

sometimes in areas that have not 

previously experienced significant oil 

and gas development. As hydraulic 

fracturing has become more common, 

public concern increased about whether 

hydraulic fracturing contributes to or 

causes the contamination of 

groundwater sources, whether the 

chemicals used in hydraulic fracturing 

should be disclosed to the public, and 

whether there is adequate management 

of well integrity and of the ‘‘flowback’’ 

fluids that return to the surface during 

and after hydraulic fracturing 

operations. 

On March 26, 2015, the BLM 

published in the Federal Register a final 

rule entitled, ‘‘Oil and Gas; Hydraulic 

Fracturing on Federal and Indian 

Lands’’ (80 FR 16128) (2015 rule). The 

2015 rule was intended to: Ensure that 

wells are properly constructed to protect 

water supplies, make certain that the 

fluids that flow back to the surface as a 

result of hydraulic fracturing operations 

are managed in an environmentally 

responsible way, and provide public 

disclosure of the chemicals used in 

hydraulic fracturing fluids. To achieve 

its objectives, the 2015 rule required oil 

and gas operators to: 

• Obtain the BLM’s approval before 

conducting hydraulic fracturing 

operations by submitting an application 

with information and a plan for the 

hydraulic fracturing design (43 CFR 

3162.3–3(d)(4)). 

• Include a hydraulic fracturing 

application in applications for permits 

to drill (APDs), or in a subsequent 

‘‘sundry notice’’ (43 CFR 3162.3–3(c)). 

• Include information about the 

proposed source of water in each 

hydraulic fracturing application so that 

the BLM can complete analyses required 

by the National Environment Policy Act 

(NEPA) (43 CFR 3162.3–3(d)(3)). 

• Include available information about 

the location of nearby wells to help 

prevent ‘‘frack hits’’ (i.e., unplanned 

surges of pressurized fluids into other 

wells that can damage the wells and 

equipment and cause surface spills) (43 

CFR 3162.3–3(d)(4)(iii)(C)). 

• Verify that the well casing is 

surrounded by adequate cement, and 

test the well to make sure it can 

withstand the pressures of hydraulic 

fracturing (43 CFR 3162.3–3(e)(1) and 

(2) and (f)). 

• Isolate and protect usable water, 

while redefining ‘‘usable water’’ to 

expressly defer to classifications of 

groundwater by states and tribes, and 

the Environmental Protection Agency, 

43 CFR 3160.0–7; and require 

demonstrations of 200 feet of adequate 

cementing between the fractured 

formation and the bottom of the closest 

usable water aquifer, or cementing to 

the surface (43 CFR 3162.3–3(e)(2)(i) 

and (ii)). 

• Monitor and record the annulus 

pressure during hydraulic fracturing 

operations, and report significant 

increases of pressure (43 CFR 3162.3– 

3(g)). 

• File post-fracturing reports 

containing information about how the 

hydraulic fracturing operation actually 

occurred (43 CFR 3162.3–3(i)). 

• Submit lists of the chemicals used 

(non-trade-secrets) to the BLM by 

sundry notice (Form 3160–5), to 

FracFocus (a public website operated by 

the Ground Water Protection Council 

and the Interstate Oil and Gas Compact 

Commission), or to another BLMdesignated database (43 CFR 3162.3– 

3(i)(1)). 

• Withhold trade secret chemical 

identities only if the operator or the 

owner of the trade secret submits an 

affidavit verifying that the information 

qualifies for trade secret protection (43 

CFR 3162.3–3(j)). 

• Obtain and provide withheld 

chemical information to the BLM, if the 

BLM requests the withheld information 

(43 CFR 3162.3–3(j)(3)). 

• Store recovered fluids in aboveground rigid tanks of no more than 500- 

barrel capacity, with few exceptions, 

until the operator has an approved plan 

for permanent disposal of produced 

water (as required by Onshore Oil and 

Gas Order No. 7) (43 CFR 3162.3–3(h)). 

The 2015 rule also authorized two 

types of variances: 

• Individual operation variances to 

account for local conditions or new or 

different technology (43 CFR 3162.3– 

3(k)(1)). 

• State or tribal variances to account 

for regional conditions or to align the 

BLM requirements with state or tribal 

regulations (43 CFR 3162.3–3(k)(2)). 

For either type of variance to be 

approved, the variance needed to meet 

or exceed the purposes of the specific 

provision of the 2015 rule for which the 


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Federal Register / Vol. 82, No. 249 / Friday, December 29, 2017 / Rules and Regulations 61925 

1The reference to 32 states with existing Federal 

oil and gas leases includes the following states: 

Alabama, Alaska, Arizona, Arkansas, California, 

Colorado, Idaho, Illinois, Indiana, Kansas, 

Kentucky, Louisiana, Maryland, Michigan, 

Mississippi, Montana, Nebraska, Nevada, New 

Mexico, New York, North Dakota, Ohio, Oklahoma, 

Oregon, Pennsylvania, South Dakota, Tennessee, 

Texas, Utah, Virginia, West Virginia, and Wyoming. 

The State of Oregon regulates hydraulic fracturing 

operations by way of its regulations addressing 

‘‘Water Injection and Water Flooding of Oil and Gas 

Properties’’ (Oregon Administrative Rules [Or. 

Admin. R.] sec. 632–010–0194). The State of 

Arizona regulates hydraulic fracturing operations 

under regulations addressing ‘‘Artificial 

Stimulation of Oil and Gas Wells’’ (Arizona 

Administrative Code [A.A.C.] sec. R12–7–117). The 

State of Indiana issued ‘‘emergency rules’’ in 2011 

and 2012 that incorporated new legislation 

addressing hydraulic fracturing (Pub. L. 140–2011 

and Pub. L. 16–2012) into Indiana’s oil and gas 

regulations at 312 Indiana Administrative Code 

(IAC) Article 16. For further information about the 

state regulatory programs, see § 2.12 of the RIA and 

Appendix 1 of the EA prepared for this rule. 

variance is being granted (43 CFR 

3162.3–3(k)(3)). 

The 2015 rule was immediately 

challenged in court. The United States 

District Court for the District of 

Wyoming stayed the 2015 rule before it 

went into effect, and later issued a final 

order setting aside the rule, concluding 

that it was outside the BLM’s statutory 

authority. On appeal, the United States 

Court of Appeals for the Tenth Circuit 

dismissed the appeal as prudentially 

unripe, and vacated the District Court’s 

final order with instructions for the 

District Court to dismiss the case 

without prejudice. The plaintiffs have 

moved for rehearing or reconsideration 

en banc. Briefing on those petitions is 

complete. The Tenth Circuit has not yet 

issued its mandate to the District Court, 

and thus the 2015 rule has not gone into 

effect. 

Commenters and a District Court have 

raised doubts about BLM’s statutory 

authority to regulate hydraulic 

fracturing operations on Federal and 

Indian lands. The BLM believes that it 

is not only better policy to rescind the 

2015 rule to relieve operators of 

duplicative, unnecessary, costly and 

unproductive regulatory burdens, but it 

also eliminates the need for further 

litigation about BLM’s statutory 

authority. 

On March 28, 2017, President Trump 

issued Executive Order 13783, entitled, 

‘‘Promoting Energy Independence and 

Economic Growth’’ (82 FR 16093, Mar. 

31, 2017), which directed the Secretary 

of the Interior to review four specific 

rules, including the 2015 rule, for 

consistency with the policy set forth in 

section 1 of the Order and, if 

appropriate, take action to lawfully 

suspend, revise, or rescind those rules 

that are inconsistent with the policy set 

forth in Executive Order 13783. 

Section 1 of Executive Order 13783 

states that it is in the national interest 

to promote clean and safe development 

of United States energy resources, while 

avoiding ‘‘regulatory burdens that 

unnecessarily encumber energy 

production, constrain economic growth, 

and prevent job creation.’’ Section 1 

states that the prudent development of 

these natural resources is ‘‘essential to 

ensuring the Nation’s geopolitical 

security.’’ Section 1 finds that it is in the 

national interest to ensure that 

electricity is affordable, reliable, safe, 

secure, and clean, and that coal, natural 

gas, nuclear material, flowing water, and 

other domestic sources, including 

renewable sources, can be used to 

produce it. 

Accordingly, Section 1 of Executive 

Order 13783 declares that the policy of 

the United States is that: (1) Executive 

departments and agencies immediately 

review regulations that potentially 

burden the development or use of 

domestically produced energy resources 

and, as appropriate, suspend, revise, or 

rescind those that unduly burden 

domestic energy resources development 

‘‘beyond the degree necessary to protect 

the public interest or otherwise comply 

with the law’’; and (2) To the extent 

permitted by law, agencies should 

promote clean air and clean water, 

while respecting the proper roles of the 

Congress and the States concerning 

these matters; and (3) Necessary and 

appropriate environmental regulations 

comply with the law, reflect greater 

benefit than cost, when permissible, 

achieve environmental improvements, 

and are developed through transparent 

processes using the best available peerreviewed science and economics. 

To implement Executive Order 13783, 

Secretary of the Interior Ryan K. Zinke 

issued Secretarial Order No. 3349 

entitled, ‘‘American Energy 

Independence,’’ on March 29, 2017, 

which, among other things, directed the 

BLM to proceed expeditiously in 

proposing to rescind the 2015 rule. 

As directed by Executive Order 13783 

and Secretarial Order No. 3349, the 

BLM conducted a review of the 2015 

rule. As a result of this review, the BLM 

believes that the compliance costs 

associated with the 2015 rule are not 

justified. 

In conjunction with its review of the 

2015 rule, the BLM analyzed the 

potential economic implications of 

implementing the 2015 rule and this 

final rule that rescinds the 2015 rule. 

That analysis is documented in the 

regulatory impact analysis (RIA) 

document that the BLM prepared for 

this final rule. As described in detail in 

that RIA, the BLM has estimated that 

this final rule will provide a reduction 

in compliance costs relative to the 2015 

rule of up to $9,690 per well or 

approximately $14 million to $34 

million per year. 

When issuing the 2015 rule, the BLM 

acknowledged that it already had ‘‘an 

extensive process in place to ensure that 

operators conduct oil and gas operations 

in an environmentally sound manner’’ 

and that ‘‘the regulations and Onshore 

Orders that have been in place to this 

point have served to provide reasonable 

certainty of environmentally responsible 

development of oil and gas resources’’ 

(80 FR at 16133 and 16137). However, 

in the RIA for the 2015 rule, while 

noting that many of the requirements of 

the 2015 rule were consistent with 

industry practice and that some were 

duplicative of state requirements or 

were generally addressed by existing 

BLM requirements, the BLM asserted 

that the 2015 rule would provide 

additional assurance that operators are 

conducting hydraulic fracturing 

operations in an environmentally sound 

and safe manner, and increase the 

public’s awareness and understanding 

of these operations. 

While the extent of the benefits that 

the additional assurances might provide 

are questionable, it follows that the 

rescission of the 2015 rule could 

potentially reduce any such assurances. 

However, considering state regulatory 

programs, the sovereignty of tribes to 

regulate operations on their lands, and 

the pre-existing Federal regulations, the 

proposed rescission of the 2015 rule 

would not leave hydraulic fracturing 

operations unregulated. 

The BLM’s review of the 2015 rule 

also included a review of state laws and 

regulations that found that most states 

are either currently regulating hydraulic 

fracturing or are in the process of 

establishing hydraulic fracturing 

regulations. When the 2015 rule was 

issued, 20 of the 32 states with currently 

existing Federal oil and gas leases had 

regulations addressing hydraulic 

fracturing. In the time since the 

promulgation of the 2015 rule, an 

additional 12 states have introduced 

laws or regulations addressing hydraulic 

fracturing. As a result, all 32 states with 

Federal oil and gas leases currently have 

laws or regulations that address 

hydraulic fracturing operations.1 In 

addition, some tribes with oil and gas 

resources have also taken steps to 

regulate oil and gas operations, 

including hydraulic fracturing, on their 

lands. 

The BLM also now believes that 

disclosure of the chemical content of 

hydraulic fracturing fluids to state 

regulatory agencies and/or databases 


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61926 Federal Register / Vol. 82, No. 249 / Friday, December 29, 2017 / Rules and Regulations 

2Additional discussion regarding Onshore Oil 

and Gas Orders 1, 2, and 7, and 43 CFR subpart 

3162, is provided in § 2.11 of the RIA and the EA 

prepared for this rule. 

such as FracFocus is more prevalent 

than it was in 2015 and, therefore, there 

is no continuing need for a Federal 

chemical disclosure requirement, since 

companies are already making those 

disclosures on most operations, either to 

comply with state law or voluntarily. 

There are 25 states that currently use 

FracFocus for chemical disclosures. 

These include seven states where the 

BLM has major oil and gas operations, 

including Colorado, Montana, New 

Mexico, North Dakota, Oklahoma, 

Texas, and Utah. 

In addition to state and tribal 

regulation of hydraulic fracturing, the 

BLM has several pre-existing regulations 

that it will continue to rely on, some of 

which are set out at 43 CFR subpart 

3162 and in Onshore Oil and Gas Orders 

1, 2, and 7. These regulations ensure 

that operators conduct oil and gas 

operations in an environmentally sound 

manner and also reduce the risks 

associated with hydraulic fracturing by 

providing specific requirements for well 

permitting; construction, casing, and 

cementing; and disposal of produced 

water.2 The BLM also possesses 

discretionary authority allowing it to 

impose site-specific protective measures 

reducing the risks associated with 

hydraulic fracturing. 

Prior to the 2015 rule, the regulations 

at 43 CFR 3162.3–2(a) (2014) provided 

in pertinent part that a ‘‘proposal for 

further well operations shall be 

submitted by the operator on Form 

3160–5 for approval by the authorized 

officer prior to commencing operations 

to . . . perform nonroutine fracturing 

jobs . . . .’’ In the proposed rule that 

preceded this final rule, the BLM 

offered to restore the regulatory text in 

§ 3162.3–2(a) regarding ‘‘nonroutine 

fracturing jobs’’ to exactly as it existed 

in the pre-2015 rule regulations. Those 

regulations, however, did not define 

‘‘nonroutine fracturing jobs’’ or provide 

guidance to operators or BLM 

authorized officers on how to 

distinguish ‘‘routine’’ from 

‘‘nonroutine.’’ Some of the comments 

that were submitted for the proposed 

rule noted this and criticized the 

regulations for being vague, confusing, 

and difficult for operators and the BLM 

to apply. In light of these comments, the 

BLM reconsidered its initial proposal to 

restore the regulation text in section 

3162.3–2(a) requiring prior approval for 

‘‘nonroutine fracturing jobs.’’ 

As a result of considerable advances 

in oil and gas development technology 

in the last 20 years, hydraulic fracturing 

practices that would have been 

considered ‘‘nonroutine’’ when the BLM 

originally issued the regulations 

requiring prior approval for ‘‘nonroutine 

fracturing jobs’’ are now commonly 

utilized and considered ‘‘routine.’’ The 

combination of advances in oil and gas 

development technology and the BLM’s 

existing authority to mitigate the 

potential risks of hydraulic fracturing 

operations through site-specific 

protective measures that are applied as 

a part of the environmental review and 

approval process at the APD stage has 

made post-APD approvals for 

‘‘nonroutine fracturing jobs’’ at most a 

very rare occurrence. In fact, while the 

BLM has not been tracking requests for 

approval of ‘‘nonroutine fracturing 

jobs,’’ recent inquiries to BLM state 

offices have not revealed any examples 

of ‘‘nonroutine fracturing’’ requests or 

approvals. Thus, given that the 

‘‘nonroutine fracturing’’ requirement 

has not, and does not seem to serve any 

purpose, and removing it from the 

regulations could reduce the potential 

for unproductive confusion or 

paperwork without adverse effects, the 

BLM has not restored the ‘‘nonroutine 

fracturing’’ requirement in this final 

rule. 

The BLM’s review of the 2015 rule 

also included a review of incident 

reports from Federal and Indian wells 

since December 2014. This review 

indicated that resource damage is 

unlikely to increase by rescinding the 

2015 final rule because of the rarity of 

adverse environmental impacts that 

occurred from hydraulic fracturing 

operations since promulgation of the 

2015 rule. The BLM now believes that 

the appropriate framework for 

mitigating these impacts exists through 

state regulations, through tribal exercise 

of sovereignty, and through BLM’s own 

pre-existing regulations and authorities 

(pre-2015 rule 43 CFR subpart 3162 and 

Onshore Orders 1, 2, and 7). 

I. Background 

II. Discussion of the Final Rule and 

Comments on the Proposed Rule 

III. Procedural Matters 

I. Background 

The development and production of 

oil and gas, including hydraulic 

fracturing operations, are regulated 

under a framework of Federal, state, and 

local laws, and, on some tribal lands, by 

tribal regulations. Several Federal 

agencies implement Federal laws and 

requirements while each state in which 

oil and gas is produced has one or more 

regulatory agencies that administer state 

laws and requirements. 

State and local laws apply on Federal 

lands, except to the extent that they are 

preempted by Federal law. Federal 

preemption is rare, and is not at issue 

in the final rule. Accordingly, the 

drilling and completion of oil and gas 

wells, including hydraulic fracturing 

operations, are subject to Federal and 

state and local regulation on Federal 

lands. If the requirements of a state 

regulation are more stringent than those 

of a Federal regulation, for example, the 

operator can comply with both the state 

and the Federal regulation by meeting 

the more stringent state requirement. 

Tribal and Federal laws apply to oil 

and gas drilling and completion 

operations, including hydraulic 

fracturing operations, on tribal lands. 

Operators on tribal lands can comply 

with both tribal and Federal regulations 

governing drilling and completion 

requirements by complying with the 

stricter of those rules. 

Regardless of any difference in 

operational regulations, operators on 

Federal lands must comply with all 

Federal, state, and local permitting and 

reporting requirements. On Indian 

lands, they must comply with all 

Federal and tribal permitting and 

reporting requirements. 

Existing BLM Requirements—Not 

Affected by This Final Rule 

The BLM has an extensive process in 

place to ensure that operators conduct 

oil and gas operations in a safe and 

environmentally sound manner that 

protects resources. The following 

discussion provides a description of 

some of the BLM’s existing processes 

and requirements that are not affected 

by the rescission of the 2015 rule 

pursuant to this final rule that help to 

ensure that the risks of oil and gas 

operations, including hydraulic 

fracturing, are appropriately minimized. 

The BLM applies a tiered decisionmaking approach when providing 

access for the development of Federal 

oil and gas resources on public lands. 

First, the BLM develops land use plans 

(the BLM refers to these plans as 

Resource Management Plans, or RMPs). 

The RMP serves as the basis for all land 

use decisions the BLM makes, including 

decisions to delineate public lands that 

are appropriate for oil and gas leasing. 

Establishment or revision of an RMP 

requires preparation of an 

environmental impact statement (EIS) in 

accordance with the National 

Environmental Policy Act (NEPA). In 

areas where lands are open for oil and 

gas leasing, the EIS prepared to support 

establishment or revision of the RMP 

analyzes oil and gas development 

related impacts that may be expected to 


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3The IMDA authorizes Indian tribes and 

individual Indian mineral owners to enter into 

leases, as well as other types of agreements, to 

explore for and develop their oil and gas resources. 

25 U.S.C. 2102(a). Indian allotted lands may also be 

leased for mineral development pursuant to 25 

U.S.C. 396. 

4 In certain situations, IMDA agreements may 

only be approved by the Secretary of the Interior 

or the Assistant Secretary for Indian Affairs. See 25 

U.S.C. 2103(d) and 25 CFR 225.3. 

occur over the life of an RMP (typically 

20 years). The RMP identifies the terms 

and conditions under which the BLM 

would allow oil and gas development to 

occur in order to protect other resource 

values. Those terms and conditions may 

include mitigation measures that would 

be evaluated through the EIS and are 

implemented as stipulations 

incorporated into oil and gas leases. If 

necessary, certain lands are closed to oil 

and gas leasing altogether when such 

use is incompatible with sensitive 

resources or other planned uses. In 

addition to compliance with NEPA, the 

BLM must comply with the National 

Historic Preservation Act (NHPA), the 

Endangered Species Act (ESA), and 

other applicable Federal laws and 

regulations. Once an RMP has been 

approved, the BLM makes land use 

decisions, including oil and gas 

development decisions, in accordance 

with the RMP, or any revisions or 

amendments to that RMP. 

Before oil and gas activities may occur 

on Federal lands, interested parties 

must obtain a lease from the BLM. Oil 

and gas leases are acquired through an 

auction-style sale process in which 

interested parties typically identify 

tracts of land that they would like to see 

leased. The BLM will conduct a 

preliminary evaluation to first 

determine whether the lands nominated 

for oil and gas leasing are under Federal 

jurisdiction and are open to leasing in 

accordance with the applicable RMP. 

The BLM will then conduct a second 

tier of NEPA review—typically through 

an EA—to address potential impacts 

that could be caused by oil and gas 

development within the nominated 

lease area. The NEPA review conducted 

at the leasing stage tiers to the EIS 

prepared for the RMP. If the BLM’s 

analysis determines that the nominated 

tracts are suitable for leasing, the BLM 

would offer the tracts for lease during a 

competitive oil and gas lease sale 

auction. If any of the tracts are not bid 

upon during the lease sale auction, 

those tracts become available for noncompetitive leasing by the first qualified 

applicant for a two year period that 

begins on the first business day 

following the last day of the lease sale. 

In addition to compliance with the 

NEPA, the BLM also complies with the 

NHPA and the ESA at the leasing stage. 

Upon issuance by the BLM, the lease 

allows the operator to conduct 

operations on the lease subject to the 

requirements of existing regulations, the 

lease terms and stipulations, and the 

requirement that the operator obtain 

BLM approval of a site-specific 

Application for Permit to Drill (APD). 

When trust or restricted Indian lands 

are involved, the tribe or individual 

Indian mineral owner plans the uses of 

their own lands. They lease their own 

oil and gas resources with the consent 

of the Department of the Interior’s 

(‘‘DOI’’ or ‘‘the Department’’) Bureau of 

Indian Affairs (BIA). Nonetheless, the 

BLM often serves as a cooperating 

agency during the development of the 

environmental review for such actions. 

Moreover, pursuant to delegations from 

the Secretary of the Interior (Secretary) 

and BIA regulations, the BLM regulates 

oil and gas operations on trust and 

restricted Indian lands, applying the 

same operating regulations that apply 

on Federal lands. 

The procedures followed when 

issuing leases to develop Indian oil and 

gas resources may be similar to, or 

different from, the leasing process used 

for Federal lands, depending upon a 

number of different factors. For 

example, when tribal oil and gas 

resources are leased under the authority 

of the Indian Mineral Leasing Act of 

1938 (IMLA), the BIA typically conducts 

a competitive lease sale process that 

shares many similarities with the 

leasing process for Federal lands. In 

contrast, the Indian Mineral 

Development Act of 1982 (IMDA), 

allows Indian mineral owners to forego 

the competitive auction-style leasing 

process and negotiate directly with 

potential operators for agreements to 

develop their oil and gas resources.3

However, for both IMLA and IMDA 

authorized leases and agreements, the 

approval of the Indian mineral owner 

and the BIA or the DOI is required.4

Much like with oil and gas leasing 

actions involving Federal lands, 

authorizations pursuant to the IMLA 

and the IMDA to develop Indian oil and 

gas resources are subject to compliance 

with applicable Federal statutes, 

including NEPA. The procedures for 

issuing leases and other development 

agreements for Indian oil and gas 

resources are outlined in the BIA’s 

regulations at 25 CFR parts 211 (IMLA 

leasing), 212 (agreements for allotted 

lands), and 225 (IMDA agreements). 

The BLM has existing regulations, 

including Onshore Oil and Gas Orders, 

to ensure that operators conduct oil and 

gas exploration and development in a 

safe and environmentally responsible 

manner that protects other resources. 

Sections 3162.3–1 and Onshore Order 1 

require an operator to get approval from 

the BLM prior to drilling a well. The 

operator must submit an APD 

containing all of the information 

required by Onshore Order 1. This 

includes a completed Form 3160–3, 

Application for Permit to Drill or ReEnter, a well plat, a drilling plan, a 

surface use plan, bonding information, 

and an operator certification. 

Upon receiving a drilling proposal on 

Federal lands, the BLM is required by 

existing section 3162.3–1(g) to post 

information for public inspection for at 

least 30 days before the BLM can 

approve the APD. The information must 

include: The company/operator name; 

the well name/number; and the well 

location described to the nearest 

quarter-quarter section (40 acres), or 

similar land description in the case of 

lands described by metes and bounds, 

or maps showing the affected lands and 

the location of all tracts to be leased and 

of all leases already issued in the 

general area. 

The public can review the posted 

information and provide any input they 

would like the BLM to consider during 

the environmental analysis the BLM 

prepares prior to making a decision on 

the APD. 

The drilling plan provided by the 

operator must be in sufficient detail to 

permit the BLM to complete an 

appraisal of the technical adequacy of, 

and environmental effects associated 

with, the proposed project. The operator 

must provide geological information, 

including the name and estimated tops 

of all geologic groups, formations, 

members, and zones. The operator must 

also provide the estimated depths and 

thickness of formations, members, or 

zones potentially containing usable 

water, oil, gas, or prospectively valuable 

deposits of other minerals that the 

operator expects to encounter, and their 

plans for protecting such resources. The 

BLM uses this information and the 

BLM’s geologists’ and engineers’ 

professional reviews to ensure that 

usable water zones are protected. 

The operator must provide minimum 

specifications for blowout prevention 

equipment that they will use to keep 

control of well pressures encountered 

while drilling. The BLM evaluates the 

proposed equipment to determine that it 

is adequate for anticipated pressures 

that the well may encounter in order to 

prevent loss of control of the well and 

potential environmental issues. The 

operator must provide a proposed 

casing program, including the size, 

grade, weight, and setting depth of each 


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5The Gold Book is available on the BLM’s 

website, at: https://www.blm.gov/programs/energyand-minerals/oil-and-gas/operations-andproduction/the-gold-book. 

casing string. The BLM engineers 

evaluate the proposed casing to ensure 

that it is being set at proper depths to 

protect other resources, including 

usable water. The BLM engineers also 

ensure that the casing size and strength 

is sufficient for the depths at which it 

will be set, and the pressures that the 

well will encounter. 

The operator must provide 

information regarding the proposed 

cementing program. This includes the 

amount and types of cement the 

operator will use for each casing string, 

and the expected top of cement for each 

casing string. The cement is critical for 

the isolation and protection of usable 

water since it is the cement that 

establishes a barrier outside the casing 

between any hydrocarbon bearing zones 

and usable water zones. The proposed 

cementing program is the first step for 

this protection. The BLM engineers 

evaluate the proposed cementing 

program to ensure that the volume and 

strength of the cement is adequate to 

achieve the desired protections. 

The operator must include in the 

drilling plan information regarding their 

proposed drilling fluid. The operator 

must provide the type and 

characteristics of the proposed 

circulating medium for drilling each 

well bore section, including the 

quantities and types of mud the operator 

will maintain, and the monitoring 

equipment the operator will utilize on 

the circulating system. The BLM 

engineers review this information to 

ensure that the drilling fluid system and 

additives will be compatible and not 

detrimental to all usable water and 

prospectively valuable mineral zones 

that the well bore may encounter. The 

operator must also provide their 

proposed testing, logging, and coring 

procedures. This may include 

resistivity, gamma ray, spontaneous 

potential, caliper, and neutron logs as 

well as cement evaluation logs. The 

BLM reviews the proposed logging suite 

and determines if the operator will need 

to run any additional logs to provide 

additional downhole information. 

The operator’s drilling plan must 

address the expected bottom-hole 

pressure and any anticipated abnormal 

pressures, temperatures, or potential 

hazards that the well may encounter. 

Hazards may include lost circulation 

zones, hydrogen sulfide zones, or faults 

and fractures. The operator must also 

include a plan for mitigating such 

hazardous. The BLM geologists review 

this information to determine if any 

other anticipated hazards exist. The 

BLM engineers review this information 

to ensure the proposed mitigation to 

address any anticipated hazards is 

adequate. 

The operator must include in its 

drilling plan any other information 

regarding the proposed operation that it 

would like the BLM to consider. This 

might include, but is not limited to, the 

directional drilling plan for deviated or 

horizontal wells, which would provide 

the proposed wellbore path. The BLM 

engineers review the proposed 

directional plan to ensure there will not 

be any potential issues with existing 

wells. 

The operator’s APD must also include 

a surface use plan of operations, or the 

equivalent required by another surface 

management agency. The surface use 

plan must contain sufficient details of 

the proposed surface use to provide for 

safe operations, adequate protection of 

the surface resources, groundwater, and 

other environmental components. The 

operator must also describe any Best 

Management Practices (BMP) they plan 

to use. BMPs are state-of-the-art 

mitigation measures applied to oil and 

natural gas drilling and production to 

help ensure that operators conduct 

energy development in an 

environmentally responsible manner. 

BMPs can protect water, wildlife, air 

quality, or landscapes. The BLM 

encourages operators to incorporate 

BMPs into their plans. 

The operator’s surface use plan 

should follow the BLM’s Surface 

Operating Standards and Guidelines for 

Oil and Gas Exploration and 

Development, which is commonly 

referred to as The Gold Book.5 The BLM 

developed The Gold Book to assist 

operators by providing information on 

the requirements for obtaining permit 

approval and conducting 

environmentally responsible oil and gas 

operations. 

The operator’s surface use plan must 

include information regarding existing 

roads they plan to use to access the 

proposed well location and must 

explain how they will improve or 

maintain existing roads. The surface use 

plan must also include the operator’s 

plan for any new access roads they plan 

to build. The operator must design roads 

based upon the type of road, the safety 

requirements, traffic characteristics, 

environmental conditions, and the type 

of vehicles that will use the road. The 

proposed road description must 

include: Road width, maximum grade, 

crown design, turnouts, drainage and 

ditch design, on-site and off-site erosion 

control, revegetation of disturbed areas, 

location and size of culverts and/or 

bridges, fence cuts and/or cattleguards, 

major cuts and fills, source and storage 

of topsoil, and the type of surface 

materials that the operator will use. 

The operator must include a map 

showing all known wells, regardless of 

well status (producing, abandoned, etc.) 

within a one-mile radius of the 

proposed location. The BLM uses this 

information to ensure the proposal does 

not conflict with any current surface 

use. The BLM uses this well information 

to identify any potential downhole 

conflicts or issues between the existing 

wells and the proposed well. If the BLM 

does identify conflicts, the BLM will 

require the operator to modify their 

proposal or to submit plans to mitigate 

the issue. 

The operator must include a map or 

diagram that shows the location of all 

production facilities and lines they will 

install if the well is successful (i.e., a 

producing well), as well as any existing 

facilities. This would include all buried 

oil, water, or gas pipelines and all 

overhead and buried power lines. The 

BLM reviews this information to 

identify any potential conflicts with the 

proposed facilities. 

The operator must include in their 

surface use plan information concerning 

the water supply, such as rivers, creeks, 

springs, lakes, ponds, and wells that the 

operator plans to use for drilling the 

well. This may or may not be the same 

source of water the operator plans to use 

for their hydraulic fracturing operations. 

The BLM does not regulate water usage, 

but the BLM does use the information 

about water supply in conducting the 

environmental analysis of the APD. The 

BLM uses the information to determine 

if the operator must obtain any 

additional approvals such as a right-ofway across Federal lands that may be 

necessary for the transport of water. 

The operator must include a written 

description of the methods and 

locations it proposes for safe 

containment and disposal of each type 

of waste material (e.g., cuttings, garbage, 

salts, chemicals, sewage, etc.) that 

results from drilling the proposed well. 

The narrative must include plans for the 

eventual disposal of drilling fluids and 

any produced oil or water recovered 

during testing operations. The operator 

must describe plans for the construction 

and lining, if necessary, of the reserve 

pit. 

The surface use plan must include the 

character, intended use, and source of 

all construction materials, such as sand, 

gravel, stone, and soil material. The 

operator must identify the location and 

construction method and materials from 


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all anticipated ancillary facilities such 

as camps, airstrips, and staging areas. 

This information will be used to assess 

the environmental impacts of the 

proposed operations. 

The operator must include a diagram 

of the proposed well site layout. The 

layout must show the location and 

orientation of the following: The 

proposed drill pad, the reserve pit/ 

blooie line/flare pit location, access road 

entry points, and the reserve pit 

showing all cuts and fills, the drilling 

rig, any dikes and ditches to be 

constructed, and topsoil and/or spoil 

material stockpiles. 

The operator must submit a plan for 

the surface reclamation or stabilization 

of all disturbed areas. The plan must 

address interim (during production) 

post-drilling reclamation for the area of 

the well pad not needed for production, 

as well as final abandonment of the 

location. The plan must include, as 

appropriate, the following: 

Configuration of the reshaped 

topography, drainage systems, 

segregation of stockpiles, surface 

disturbances, backfill requirements, 

proposals for pit closures, redistribution 

of topsoil, soil treatments, seeding or 

other steps to reestablish vegetation, 

weed control, and practices necessary to 

reclaim all disturbed areas, including 

any access roads and pipelines. 

If the BLM does not manage the 

surface, the surface management agency 

must approve the surface use plan 

according to their respective regulations 

and guidance documents. 

The APD must provide proof of 

adequate bond coverage as required by 

existing 43 CFR 3104.1 for Federal lands 

and by 25 CFR 211.24, 212.24, and 

225.30, for Indian lands. These 

regulations require the operator or the 

lessee to have an adequate bond in place 

prior to the BLM’s approval of the APD. 

If the BLM determines that the current 

bond amount is not sufficient, the BLM 

can require additional bond coverage. 

The BLM determines the need for bond 

increases by considering the operator’s 

history of previous violations, the 

location and depth of wells, the total 

number of wells involved, the age and 

production capability of the field, and 

any unique or unusual conditions in the 

planned drilling operations or in the 

surrounding environment. 

Upon receipt of a complete APD, the 

BLM will schedule an onsite inspection 

with the operator. The purpose of the 

onsite inspection is for the BLM and 

operator to further identify site-specific 

resource concerns and requirements not 

originally identified during the 

application stage. Prior to, or in 

conjunction with, the onsite inspection, 

the BLM or other surface management 

agency will advise the operator if any 

special inventories or studies are 

required, such as for cultural resources 

or threatened and endangered species. 

The onsite inspection team will 

include the BLM, a representative of any 

other surface management agency, the 

operator or permitting agent, and other 

parties associated with planning work 

on the project, such as the operator’s 

principal dirtwork contractor, agency 

resource specialists, surveyors, and 

pipeline or utility company 

representatives. When the onsite 

inspection is on private surface, the 

BLM will invite the surface owner to 

attend. The purpose of the onsite 

inspection is to discuss the proposal; 

determine the best location for the well, 

road, and facilities; identify site-specific 

concerns and potential environmental 

impacts associated with the proposal; 

and discuss the conditions of approval 

(COA) or possible environmental BMPs. 

If the BLM identifies resource conflicts, 

the BLM has the authority to require the 

operator to move surface facilities to 

locations that would reduce resource 

impacts while still allowing 

development of the leased minerals. 

After the BLM has reviewed the 

operator’s proposed plans and 

conducted the onsite inspection, the 

BLM will prepare an environmental 

impacts analysis document in 

conformance with the requirements of 

NEPA, and the Department of the 

Interior’s regulations. The extent of the 

environmental analysis process and the 

time period for issuance of a decision on 

the APD will depend upon the 

complexity of the proposed action and 

resulting analysis, the significance of 

the environmental effects disclosed, and 

the completion of appropriate 

consultation processes. In each case, the 

environmental analysis considers 

environmental concerns and resource 

issues in the area, including those the 

BLM or operator identified during the 

onsite inspection, such as potentially 

impacted cultural resources, endangered 

species, surface water, ground water, 

and other natural resources. A group of 

resource specialists conduct the 

analysis. The composition of the team 

depends on the resource issues in that 

area and any resource issues that the 

BLM or operator identified during the 

onsite inspection. The resource 

specialists may include petroleum 

engineers, geologists, natural resources 

specialists, wildlife biologists, 

archeologists, hydrologists, soil 

scientists, botanists, recreation 

specialists, range management 

specialists, and realty specialists. 

The environmental analysis may be 

conducted for a single well, a group of 

wells, or for an entire field. The public 

is welcome to provide input to the BLM 

for inclusion in the analysis. The BLM 

posts notices of all Federal APDs for 

public inspection in the authorizing 

office and on the internet. For large 

projects, such as field development 

environmental assessments or 

environmental impact statements, the 

BLM will go through public scoping and 

will issue a draft analysis for public 

comment prior to completing the final 

analysis and issuing a decision. 

The environmental analysis will 

identify potential impacts from the 

proposed action. The BLM will develop 

any necessary COAs to mitigate those 

potential impacts. If the BLM identifies 

unacceptable impacts, the BLM will ask 

the operator to modify its proposal, or 

the BLM may deny the application. The 

BLM will attach the COAs to the 

approved APD. The operator must 

follow the approved plan and all COAs. 

Upon BLM’s approval of an APD, the 

operator may commence drilling of the 

well. In addition to the approved plan 

and the COAs attached to the APD, the 

operator must also comply with the 

requirements of Onshore Order 2. 

Onshore Order 2 details the BLM’s 

uniform national minimum standards of 

performance expected from operators 

when conducting drilling operations on 

Federal and Indian lands. Many of the 

requirements of Onshore Order 2 ensure 

the protection of usable water. Onshore 

Order 2 defines ‘‘isolating’’ as ‘‘using 

cement to protect, separate, or segregate 

usable water and mineral resources’’ 

and ‘‘usable water’’ as ‘‘generally those 

waters containing up to 10,000 ppm of 

total dissolved solids.’’ 

Onshore Order 2 requires that the 

operator conduct the proposed casing 

and cementing programs as approved to 

protect and/or isolate all usable water 

zones, lost circulation zones, 

abnormally pressured zones, and any 

prospectively valuable deposits of 

minerals. It requires that the operator 

determine the casing setting depths 

based on all relevant factors, including: 

Presence/absence of hydrocarbons; 

fracture gradients; usable water zones; 

formation pressures; lost circulation 

zones; other minerals; or other unusual 

characteristics. It also requires the 

operator to report all indications of 

usable water. 

Onshore Order 2 requires the operator 

to run centralizers on the bottom 3 

joints of surface casing to help ensure 

the casing is centered in the drilled hole 

prior to cementing. This helps to ensure 

wellbore integrity. It also requires the 

operator to cement the surface casing 


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back to the surface either during the 

primary cement job or by remedial 

cementing. Cementing the surface 

casing back to the surface ensures that 

all usable water zones behind the 

surface casing are isolated and 

protected. Onshore Order 2 requires the 

operator to wait until the cement for all 

casing strings achieves a minimum of 

500 psi compressive strength at the 

casing shoe prior to drilling out the 

casing shoe. It requires the operator to 

use top plugs during cementing 

operations to reduce contamination of 

the cement by displacement fluid. It 

requires the operator to use a bottom 

plug or other acceptable technique, such 

as a preflush fluid, inner string cement 

method, etc., to help isolate the cement 

from contamination by the mud fluid 

being displaced ahead of the cement 

slurry. By using proper cementing 

techniques such as these, the operator 

can complete the cement job as planned 

and thus protect usable water. 

Onshore Order 2 requires the operator 

to pressure test the casing prior to 

drilling out the casing shoe. This test 

ensures the integrity of the casing. 

Onshore Order 2 requires the operator to 

conduct a pressure integrity test of each 

casing shoe on all exploratory wells, 

and on that portion of any well 

approved for a 5000 psi blowout 

preventer. The operator must conduct 

this test before drilling 20 feet of new 

hole. The pressure test ensures the 

integrity of the cement around the 

casing shoe. 

Onshore Order 2 identifies the 

minimum requirements for blowout 

prevention equipment and the 

minimum standards for testing the 

equipment. Proper sizing, installation, 

and testing of the blowout prevention 

equipment ensures that the operator 

maintains control of the well during the 

drilling process, which is necessary for 

protection of usable water zones. 

The BLM conducts inspections of 

drilling operations to ensure that 

operators comply with the Onshore 

Order 2 drilling regulations, the 

approved APD, and the associated 

COAs. The BLM drilling inspections 

consist of two general types of 

inspections: Technical and 

environmental. The BLM petroleum 

engineering technicians conduct 

technical inspections of the drilling 

operations, such as witnessing the 

running and cementing of the casing, 

witnessing the testing of the blowout 

prevention equipment, and detailed 

drilling rig inspections that include 

review of documentation such as the 

third party cementing job ticket, which 

describes the cementing operation 

including the type and amount of 

cement used, the cement pump 

pressures, and the observation of 

cement returns to the surface, if 

applicable. Through witnessing the 

operation or the review of the 

documentation, the BLM inspectors 

verify that the drilling operations are 

conducted in accordance with the 

approved plan and that no wellbore 

issues exist. The BLM natural resource 

specialists conduct environmental 

inspections of drilling operations. The 

environmental inspections focus 

primarily on the surface use portion of 

the approved APD. This includes 

inspection of the access road, the well 

pad, and any pits. While the BLM does 

not have the budget or personnel 

available to inspect every drilling 

operation as it is occurring on Federal 

and Indian minerals, the BLM conducts 

inspections in accordance with an 

annual strategy to ensure compliance 

with the regulations, lease stipulations, 

COAs for the plan, and permits. 

As described above, the BLM has 

numerous processes and requirements 

to ensure that operators conduct oil and 

gas exploration and development in an 

environmentally responsible manner 

that protects mineral and other 

resources. 

Within 30 days after the operator 

completes a well, the operator is 

required by Section IV(e) of Onshore 

Order 1 to submit to the BLM a Well 

Completion or Recompletion Report and 

Log (Form 3160–4), which provides 

drilling and completion information. 

This includes the actual casing setting 

depths and the amount of cement the 

operator used in the well along with 

information regarding the completion 

interval, such as the top and bottom of 

the formation, the perforated interval, 

and the number and size of perforation 

holes. The operator is required to 

submit copies of all electric and 

mechanical logs, including any cement 

evaluation logs, which the operator ran 

on the well prior to conducting 

completion operations. The BLM 

reviews this information to ensure that 

the operator set the casing and pumped 

the cement according to the approved 

permit. 

Once a well goes into production, 

water is often produced with the oil and 

gas. The produced water tends to be of 

poor quality and is not generally 

suitable for drinking, livestock, or other 

uses without treatment and, therefore, 

must be disposed of properly. Onshore 

Oil and Gas Order 7 (Order 7) regulates 

the disposal of produced water. Under 

Onshore Order 7, operators must apply 

to the BLM for authorization to dispose 

of produced water by injecting the water 

into a suitable formation, by storing it in 

pits, or by other methods approved by 

the BLM. If the disposal is into injection 

wells, the operator must obtain approval 

under the Safe Drinking Water Act’s 

Underground Injection Control (UIC) 

program that is administered by the 

Environmental Protection Agency 

(EPA). In many states, the EPA has 

granted primary enforcement authority 

for the UIC program to the state agency 

responsible for oil and gas development. 

If the water will be stored in pits, the 

BLM requires specific design standards 

to ensure the water does not 

contaminate the environment or pose a 

threat to public health and safety. 

After a well has been drilled and 

completed, the BLM continues to 

inspect the well until it has been 

plugged and abandoned and the surface 

has been rehabilitated. During the 

production phase of the well, the BLM 

inspections focus on two primary 

issues: Production and the environment. 

The Federal Government (for Federal 

leases) or an Indian tribe or individual 

Indian allottee (for Indian leases) 

receives a royalty on the oil and gas 

removed or sold from the lease based on 

the volume, quality, and value of the oil 

and gas. Royalties from Federal leases 

are shared with the state as provided by 

statute. Production inspections are done 

to ensure the volume and quality of the 

oil and gas is accurately measured and 

properly reported. Environmental 

inspections are done to ensure that well 

pads and facilities are in compliance 

with regulations, Onshore Orders, and 

approved permits. Environmental 

inspections include ensuring that pits 

are properly constructed, maintained, 

and protected from wildlife; identifying 

leaking wells or pipelines; ensuring that 

the wellsite and facilities are properly 

maintained; and ensuring that proper 

erosion controls and rehabilitation 

measures are in place. 

When a well has reached the end of 

its economic life, Federal regulations 

require it to be plugged and abandoned 

to prevent oil and gas from leaking to 

the surface or contaminating water 

bearing zones or other mineral zones. 43 

CFR 3162.3–4. Well abandonment can 

be requested by the operator or required 

by the BLM. In either case, the operator 

must submit a proposal for well 

plugging, including the length, location, 

type of cement, and placement method 

to be used for each plug. Onshore Order 

2 contains minimum requirements for 

well plugging. The operator must also 

submit a plan to rehabilitate the surface 

once the well has been plugged. The 

goal of surface rehabilitation is to 

remove obvious visual evidence of the 

pad and to promote the long-term 

stability of the site and vegetation. 


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The BLM inspects both well plugging 

and surface restoration. Well plugging 

inspections are done to ensure the plugs 

are set into the wellbore as approved by 

the BLM. The inspector will witness the 

depth and volume of cement used in 

each plug as well as the physical 

verification of the top of each plug. 

When an operator has complete surface 

restoration, it will notify the BLM. The 

BLM will send surface protection 

specialists to ensure the restoration is 

adequate. Once the BLM is satisfied 

with the restoration efforts, the BLM 

will approve the operator’s Final 

Abandonment Notice. 

II. Discussion of the Final Rule and 

Comments on the Proposed Rule 

On July 25, 2017, the BLM proposed 

to rescind the 2015 final rule because 

we believed that rule was unnecessarily 

duplicative of state and some tribal 

regulations and imposed burdensome 

reporting requirements and other 

unjustified costs on the oil and gas 

industry. The 60-day comment period 

for that proposed rule (the 2017 

proposed rule) ended on September 25, 

2017 (82 FR 34464). 

Discussion of Comments by Topic 

Water Quality 

Many commenters state that the 2017 

proposal, if finalized, will have negative 

impacts on water quality and public 

health. Commenters state that science 

has shown that hydraulic fracturing can 

be injurious to the natural landscape as 

well as to human health and safety. 

Commenters state that one danger from 

hydraulic fracturing is contamination of 

surface water by toxic chemicals that 

leach off site. Another is that the fluids 

may leak from the well into 

underground aquifers. Commenters 

assert that contamination on Federal 

and tribal land runs off Federal lands 

into the water systems that we use and 

seeps into the groundwater we drink. 

The BLM has reviewed incident 

reports from Federal and Indian wells 

since December 2014. This review 

indicated that resource damage is 

unlikely to increase by rescinding the 

2015 rule because of the rarity of 

adverse environmental impacts that 

occurred from hydraulic fracturing 

operations before the 2015 rule, and 

after its promulgation while the 2015 

rule was not in effect. The BLM believes 

that the appropriate framework for 

mitigating these impacts is through the 

state regulations, through tribal exercise 

of sovereignty, and through BLM’s own 

pre-existing regulations and authorities 

(pre-2015 final rule 43 CFR subpart 

3162 and Onshore Orders 1, 2, and 7). 

The review and approval of the APDs 

requires compliance with those existing 

authorities and regulations to ensure 

protection of the water resources, and 

the local environment. 

Multiple commenters claim that 

hydraulic fracturing is a dangerous 

practice that can contaminate our air 

and water, while contributing to the 

release of greenhouse gases. One 

commenter states that, as the base of 

scientific knowledge regarding risks 

from hydraulic fracturing continues to 

develop, the evidence continues to 

build that hydraulic fracturing and shale 

and tight gas development processes 

pose a wide range of risks to human 

health and the environment. Another 

commenter asserts that no amount of 

regulation can make hydraulic 

fracturing safe, but that rescinding or 

weakening the recently updated rules 

only puts our shared resources at greater 

risk. Further, the commenter states that 

the updated rules are long overdue and 

simply lay out basic standards to follow. 

Commenters state that the 2015 rule was 

enacted after years of review and should 

not be weakened or repealed. 

Commenters state that rescinding the 

2015 rule would put our Federal lands 

at risk by repealing our first line of 

defense against groundwater 

contamination. 

The BLM initiated the development of 

the hydraulic fracturing rule in 2010 in 

response to public concerns. Relatively 

few states had any regulations on 

hydraulic fracturing at that time. In light 

of this, a BLM regulation covering 

wellbore integrity and usable water 

protection seemed appropriate at that 

time. Since promulgation of the 2015 

rule, however, many states have 

updated their regulations to address 

hydraulic fracturing operations. The 

BLM now believes that the 2015 rule is 

duplicative of the states’ and some tribal 

regulations, as well as some of the 

BLM’s own pre-existing regulations and 

authorities (pre-2015 rule 43 CFR 

subpart 3162 and Onshore Orders 1, 2, 

and 7), and is not necessary. 

Some commenters are concerned that 

hydraulic fracturing affects the 

availability of water resources. These 

commenters describe that once water is 

used for hydraulic fracturing, it cannot 

be returned to the water table and that 

water is a precious resource that should 

not be depleted in this fashion. 

Recycling and reuse of flowback 

fluids from ongoing hydraulic fracturing 

operations is currently practiced in 

many states, but the majority of 

recovered fluids are still injected into 

disposal wells regulated under the Safe 

Drinking Water Act (SDWA). The 2015 

rule, however, would not have 

mandated reuse or recycling. Therefore, 

rescinding the 2015 rule will not affect 

demands on water supplies or the reuse 

or recycling of recovered fluids. 

One commenter states that, although 

incidents of contamination of 

groundwater from hydraulic fracturing 

are not frequent, due in part to 

improvements in technology, they have 

occurred in locations that raise concern 

about the adequacy of protection. In 

response to comments that list examples 

of studies that find no linkages between 

hydraulic fracturing and groundwater 

contamination, one comment points to 

the work of a former U.S. EPA scientist 

linking hydraulic fracturing with 

groundwater contamination. The 

commenter adds that not all laboratory 

tests have shown contamination of 

groundwater in areas of hydraulic 

fracturing because standard laboratory 

tests do not always test for exotic, 

highly water-soluble chemicals used in 

hydraulic fracturing. 

The referenced study suggested that 

water wells in Pavillion, WY were 

contaminated with hydraulic fracturing 

wastes that had been stored in unlined 

pits dug into the ground. The BLM has 

several existing requirements, some of 

which are set out at 43 CFR subpart 

3162 and in Onshore Oil and Gas Orders 

1, 2, and 7, that allow it to mitigate the 

risks associated with oil and gas 

operations, including any risks to 

groundwater from hydraulic fracturing 

operations. The BLM also possesses 

discretionary authority allowing it to 

impose site-specific protective measures 

reducing the risks associated with 

hydraulic fracturing. The BLM 

Authorized Officers follow the BLM’s 

regulations and authorities to review 

and approve each APD. Operators also 

must comply with existing state laws 

and regulations and, on tribal lands, 

tribal laws and regulations, including 

those that are intended to prevent 

groundwater contamination. The BLM 

does not believe that the 2015 final rule 

would reduce the risks of groundwater 

contamination to an extent that would 

justify the burdens imposed on 

operators or the BLM by that rule. 

One commenter states that the cost of 

cleaning groundwater after it is 

contaminated is exorbitant and therefore 

that circumstances potentially causing 

contamination should be avoided. 

We agree. The BLM Authorized 

Officers follow the BLM’s regulations 

and authorities (pre-2015 rule 43 CFR 

subpart 3162 and Onshore Orders 1, 2, 

and 7) to review and approve each APD. 

Operators also must comply with 

existing state regulations, or, on tribal 

lands, tribal laws. Those requirements 

are intended to ensure protection of the 


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water resources and prevent any 

groundwater contamination. We are no 

longer persuaded, though, that the 2015 

rule would improve protection of 

groundwater to an extent that would 

justify the burdens on operators or the 

BLM. 

One commenter takes issue with the 

statements in the 2017 proposed rule 

that, ‘‘a review of incident reports from 

Federal and Indian wells since 

December 2014,’’ indicates that, 

‘‘resource damage is unlikely to increase 

by rescinding the 2015 final rule.’’ The 

commenter asserts that the BLM 

provides no support or explanation for 

this statement and has failed to consider 

many of the significant adverse 

environmental impacts associated with 

rescinding the 2015 rule. 

The BLM did not find any increase in 

the number of incidents related to 

hydraulic fracturing completions in 

BLM operations since December 2014. 

The EPA study (EPA 2016) on hydraulic 

fracturing was unable to identify any 

specific activities of hydraulic fracturing 

operations on Federal or Indian lands 

that impacted the drinking water 

resources, because the study did not 

distinguish between hydraulic 

fracturing on Federal or Indian lands 

and hydraulic fracturing on other lands. 

One commenter states that he has 

lived in North Dakota for five years and 

personally witnessed the purposeful 

dumping of hydraulic fracturing water 

along roads and ditches on the roads 

leading to hydraulic fracturing sites. 

The commenter states that most of the 

oil and hydraulic fracturing waste spills 

that happen on or near sites do not get 

reported. 

The 2015 rule did not address open 

dumping of recovered fluids. Neither 

the 2015 rule, nor this rule, alter the 

requirement that permanent disposal of 

produced water must be in accordance 

with an approved plan. See Onshore Oil 

and Gas Order No. 7, 58 FR 47354 

(1993). Unpermitted dumping of 

recovered fluids is outside the scope of 

this rulemaking. 

Multiple commenters assert that 

BLM’s rescission of the 2015 rule is 

appropriate because there has been no 

proven case of groundwater 

contamination from hydraulic fracturing 

in the United States to date. Several 

commenters state that studies developed 

by the EPA and U.S. Geological Survey 

(USGS) indicate that hydraulic 

fracturing has not had an impact on 

groundwater quality. One commenter 

further states that several studies, 

including an EPA study, a Yale 

University study, and a study funded by 

the Natural Resources Defense Council, 

find no incidence of contamination of 

groundwater due to hydraulic 

fracturing, which has been performed 

on over 1.2 million wells since 1948. 

Absent any confirmed instances of 

hydraulic fracturing impacting 

underground sources of drinking water, 

a commenter asserts that there is no 

protective advantage to the environment 

from the 2015 rule. 

The BLM generally agrees with the 

commenter. We conclude that state and 

some tribal regulations, in conjunction 

with the BLM’s own pre-existing 

regulations and authorities (pre-2015 

rule 43 CFR subpart 3162 and Onshore 

Orders 1, 2, and 7) have been effective 

in ensuring protection of the water 

resources and the local environment. 

One commenter states that any 

studies contained in the BLM’s original 

administrative record that suggest that a 

link exists between groundwater 

contamination and oil and gas 

production were focused on well 

construction rather than hydraulic 

fracturing as the cause of the 

contamination. The commenter further 

states the BLM and each of the states in 

which Federal oil and gas is produced 

had well construction rules prior to the 

2015 rule, and that the BLM’s 

administrative record does not provide 

any evidence that a rule focused on 

hydraulic fracturing would improve the 

degree of protection related to well 

construction. 

The BLM agrees in part. Onshore Oil 

and Gas Order No. 2 continues to apply 

to the drilling and cementing of oil and 

gas wells on Federal and Indian lands. 

See 53 FR 46798 (1988). The 2015 rule 

would have imposed additional 

monitoring, testing, and reporting 

requirements. In the preamble and 

supporting documents for the 2015 rule, 

though, the BLM cited a few instances 

where surface or groundwater 

contamination was caused by inter-well 

communications during the hydraulic 

fracturing operations. Those were not 

directly linked to wellbore construction, 

but rather caused by geologic fractures 

and fissures which are prevalent in 

some areas, or by lack of awareness of 

other wellbores. However, the BLM also 

possesses discretionary authority 

allowing it to impose site-specific 

protective measures that can be applied 

when necessary to reduce the risks 

associated with hydraulic fracturing. 

One commenter noted that, in Federal 

court, an oil company was found to 

have caused permanent and irreparable 

pollution of the Sac and Fox Nation’s 

groundwater by oil and gas activities. As 

a result of ineffective and absent 

regulatory actions, portions of the Sac 

and Fox Nation’s aquifer will be unsafe 

to drink for generations. 

It appears that the operator in the 

cited case did not follow the conditions 

of the permit issued by the BLM for the 

operation, and is responsible for the 

damage. The BLM’s 2015 rule would not 

have addressed such issues related to 

violation of the rule on tribal lands and 

neither would this rule. 

One commenter describes that the 

2015 rule would have redefined ‘‘usable 

water,’’ modifying the term’s definition 

to include ‘‘those waters containing up 

to 10,000 parts per million (ppm) of 

total dissolved solids.’’ The commenter 

asserts a lack of any empirical evidence 

or science-based support for a need to 

protect water that is so saline that it can 

kill livestock, and asserts that this 

definition would expand the scope of 

protected waters well beyond EPA’s 

regulations under the Safe Drinking 

Water Act. 

Onshore Oil and Gas Order No. 2, 

Section II. Y, states that ‘‘Usable Water 

means generally those waters containing 

up to 10,000 ppm of total dissolved 

solids.’’ The BLM believes that the 

standard set forth in Onshore Order No. 

2 is appropriate and it will continue to 

follow that standard. 

Air Quality/Public Health 

One commenter states that there are 

unsafe levels of air pollution at every 

stage of oil and gas development. Air 

quality testing at hydraulic fracturing 

sites in several states have revealed 

levels of hydrogen sulfide and volatile 

organic compounds capable of causing 

respiratory, neurologic, and 

cardiovascular disease, blood 

dyscrasias, birth defects, and 

malignancies after chronic and recurrent 

exposure. The commenter claims that 

we do not yet know the true level of risk 

related to air contamination for workers, 

neighboring families and communities. 

The commenter asserts that flowback, 

even when stored in closed tanks, can 

liberate toxic volatile pollutants (such as 

carcinogenic benzene) at very high 

concentrations into the atmosphere. The 

commenter states that workers should 

be wearing respirator masks to minimize 

serious health consequences. 

In response to that comment, the BLM 

notes that the 2015 rule would have 

generally required recovered fluids to be 

stored in tanks until a permanent 

disposal plan was approved, but 

allowed for exceptions and did not 

require closed or vapor-recovery 

systems. The 2015 rule was never 

intended to be an air quality or 

emissions regulation. Health effects 

from air emissions and mitigation 

measures were not addressed in the 

2015 rule and are outside the scope of 

this rule. Air quality and worker safety 


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are regulated by other Federal, state, or 

tribal agencies. 

One commenter states that a new form 

of hydraulic fracturing-related air 

pollution may be increased levels of 

indoor radon concentration (the number 

one cause of lung cancer among nonsmokers) in homes located in areas 

where hydraulic fracturing is used to 

extract natural gas from shale 

formations. The commenter highlights 

that a peer-reviewed study published in 

May 2015 by the National Institute of 

Environmental Health Sciences, 

‘‘Predictors of Indoor Radon 

Concentrations in Pennsylvania, 1989– 

2013,’’ documents a progressive upward 

trend in ambient radon levels between 

2005 and 2013 coincident with the 

onset of hydraulic fracturing in 

Pennsylvania. The commenter noted 

that, at present, there are no state or 

Federal regulations addressing this 

newly discovered association. 

In response to that comment, the BLM 

notes that the 2015 rule did not address 

radon concentrations, and rescinding 

that rule will not affect radon 

concentrations. Radon ‘‘association’’ 

with hydraulic fracturing operations is 

outside the scope of this rulemaking. 

One commenter states that unsafe 

levels of air pollution found near 

hydraulic fracturing sites are largely 

ignored by Federal and state agencies. 

The commenter suggest that, to remedy 

this, monitoring of pollution emissions, 

air testing of communities, and strict 

standards to limit pollution are sorely 

needed and should replace patchy, 

inadequate state protections that do not 

do enough to safeguard communities 

that are increasingly exposed to the 

deadly consequences of poorly 

regulated hydraulic fracturing sprawl. 

Another commenter states that diesel 

emissions from heavy trucks and 

machinery used during well site 

preparation, drilling, and production 

contain toxins and release diesel soot 

particles, which increase health risks 

including: Asthma attacks, 

cardiopulmonary disease, respiratory 

disease, pregnancy complications, and 

premature death. In addition, the 

commenter states that inhaling 

respirable silica can cause silicosis and 

lung cancer in miners, sandblasters, and 

foundry workers. The commenter 

further notes that, due in large part to 

methane leakage and venting, the 

greenhouse gas footprint of shale gas is 

larger than the footprint of oil, 

conventional gas, and even coal. 

These comments are outside the scope 

of the present rulemaking action. 

Neither the 2015 rule nor this rescission 

will cause air pollution, fugitive dust, or 

greenhouse gas emissions to be greater 

or less. Air quality monitoring and 

emissions standards are regulated by 

other agencies. 

In addition to air and water pollution, 

one commenter expressed concern 

about externalities of drilling 

operations, such as noise pollution and 

odors, which should be kept within 

tolerance levels as drilling expands to 

areas where more people live. 

This comment is outside the scope of 

this rulemaking because it addresses oil 

and gas development in general and 

fails to assert any specific alternative 

approach or change from the 2017 

proposed rule that the BLM should have 

considered in this final rule with 

respect to the regulation of hydraulic 

fracturing operations on Federal and 

Indian lands. 

Chemical Disclosure 

In this section, we describe the 

comments the BLM received regarding 

chemical disclosure and respond to 

them all in the final paragraph of the 

section. 

Some commenters are concerned that 

rescinding the 2015 rule will result in 

chemicals used in the hydraulic 

fracturing process not being disclosed 

by operators. Commenters state that, as 

the Federal lands managed by the BLM 

are public lands, the public has a right 

to clearly understand what is occurring 

on them and any potential impacts that 

those activities could have on water 

resources. One commenter notes that a 

recent study conducted by the Yale 

School of Public Health found that, of 

the compounds used in hydraulic 

fracturing that they could identify and 

study, 44 percent of the water pollutants 

and 60 percent of air pollutants were 

either confirmed or possible 

carcinogens. Although these compounds 

often make up only a small percentage 

of the total volume of the fluid, many 

are known to be toxic to humans at 

levels as low as five parts per billion. 

The commenter suggests that the 2015 

rule would help to ensure proper 

handling and would mitigate potential 

exposure and impacts to public health 

from hydraulic fracturing. Another 

commenter describes a 2015 report 

published by the EPA that stated that 

well operators refused to disclose 11 

percent of their ingredient records, 

citing them as confidential business 

information. Furthermore, one or more 

ingredients in more than 70 percent of 

disclosures were omitted, according to 

the commenter. 

One comment referred to a 2016 

article entitled, ‘‘Hydraulic Fracturing 

Chemicals Reporting: Analysis of 

Available Data and recommendations 

for Policy Makers,’’ which highlighted 

that 16.5 percent of chemicals used in 

hydraulic fracturing between the years 

2012 and 2015 were unreported. 

One commenter expressed concern 

regarding the BLM’s reliance on a third 

party (FracFocus) to replace specific 

transparency and public accountability. 

In response to commenters on the 2015 

rule, the BLM stated that, ‘‘compliance 

with these rules will increase 

transparency of the hydraulic fracturing 

approval process and provide a means 

for disclosure to the public of the fluids 

utilized in the hydraulic fracturing 

process.’’ The commenter complains 

that the BLM now states that disclosure 

of the chemical content of hydraulic 

fracturing fluids to states or databases, 

such as FracFocus, is more prevalent 

than it was in 2015 and so there is no 

need for a Federal chemical disclosure 

requirement. The commenter asserts 

that the slight shift in reporting 

frameworks is insufficient justification 

to remove regulations that promote 

administrative transparency and public 

disclosure of potentially harmful 

chemicals. Furthermore, the commenter 

stated that the BLM has yet to respond 

to questions from the Secretary of 

Energy’s Advisory Board raised in 2015 

with respect to technical issues with 

FracFocus, including a lack of 

verification for data accuracy. 

One commenter states that the BLM’s 

analysis of state requirements for 

chemical disclosure indicates that all 

states reviewed require chemical 

disclosure of hydraulic fracturing fluids 

to FracFocus (with the possible 

exception of New Mexico). The 

commenter states that the BLM rule, 

however, requires much more than just 

disclosure of chemicals used in the 

fracturing fluid. The commenter asserts 

that California is the only state that has 

equivalent requirements for each of the 

elements that had been required in the 

2015 rule and the only other state that 

has any equivalent requirements is 

Wyoming. 

One commenter states that radioactive 

substances are used in hydraulic 

fracturing fluid to determine the 

injection profile and location of 

fractures created by hydraulic 

fracturing. The commenter asserts that 

these chemicals should be heavily 

regulated as a matter of national security 

and that all chemicals onsite should be 

identified and reported by the operator. 

The commenter states that the contents 

of all materials and quantities injected 

into the wells should be documented, 

reported, and provided upon request. 

The commenter states that polluters 

should not remain unidentified because 

the identifying features of the injected 

slurry are protected as ‘‘trade secrets.’’ 


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Some commenters assert that it is not 

burdensome to require the oil and gas 

industry to disclose the chemicals they 

are pumping into the ground in order to 

extract petroleum. 

In response to all of the foregoing 

comments in this section, although we 

agree that the information is readily 

available to the operators or their 

contractors, we are no longer convinced 

that a BLM regulatory requirement 

would improve access to that 

information sufficiently to justify the 

cost of compliance. 

Most states with existing oil and gas 

operations now have regulations that 

require operators to disclose the 

chemical content of hydraulic fracturing 

fluids to either a publicly accessible 

forum, such as FracFocus, state 

regulatory agencies, or both. This 

includes the States of California, 

Colorado, Montana, New Mexico, North 

Dakota, Oklahoma, Texas, Utah, and 

Wyoming, which accounted for 

approximately 99 percent of the total 

well completions on Federal and Indian 

lands from fiscal year (FY) 2010 to 2016. 

In addition, there are 25 states that 

currently use FracFocus for chemical 

disclosures. These include seven states, 

Colorado, Montana, New Mexico, North 

Dakota, Oklahoma, Texas, and Utah, 

with substantial BLM administered oil 

and gas operations. The BLM now 

believes that the disclosures of the 

chemical content of hydraulic fracturing 

fluids to state regulatory agencies and/ 

or databases, such as FracFocus is more 

prevalent than it was in 2015 and that 

there is no need for a duplicate Federal 

chemical disclosure requirement, since 

companies are already making those 

disclosures on most of the operations, 

either to comply with state law or 

voluntarily. Furthermore, the 2015 rule 

did not require disclosure of trade 

secrets. See generally, 18 U.S.C. 1905; 

43 CFR 3162.3–3(j) (2016). Therefore, 

there is no reason to believe that 

rescinding the 2015 rule will cause 

operators to withhold more confidential 

information about chemicals used in 

hydraulic fracturing operations. To the 

extent that the comments address 

control of hazardous substances 

generally, they are beyond the scope of 

this rulemaking. 

Earthquakes 

Some commenters suggest that there 

is a link between earthquakes and 

hydraulic fracturing of rock formations. 

One commenter states that significant 

seismic activity is allowed without any 

state or Federal constraints. 

Commenters suggest a link between 

hydraulic fracturing and wastewater 

injection and earthquakes in Oklahoma 

and Ohio. Several commenters describe 

a 2016 study that cautioned that 

hydraulic fracturing in the United States 

may be causing higher-than-recognized 

induced earthquake activity that is 

being masked by more abundant 

wastewater-induced earthquakes. The 

commenters assert that the injection of 

oil and gas wastewater, often associated 

with hydraulic fracturing, has been 

linked to the dangerous proliferation of 

earthquakes, including damaging 

earthquakes in many parts of the 

country. 

In addition, one commenter asserts 

that the hydraulic fracturing industry 

has burdened tribal businesses and 

homeowners that have to pay to repair 

damages inflicted by these earthquakes. 

The commenter asserts that induced 

seismicity prevents tribal members from 

access to Department of Housing and 

Urban Development (HUD) funds for 

home construction in areas that are now 

unable to be adequately insured for 

earthquake damage. 

In response to the comments, U.S. 

Geological Survey research indicates 

that most induced seismicity has been 

linked to wastewater injection, and 

seldom to hydraulic fracturing 

operations. While the 2015 rule contains 

provisions regarding the storage of 

recovered fluids, it did not include any 

provisions regarding wastewater 

disposal by underground injection, 

which is regulated under the SDWA by 

the EPA or an approved state or tribe. 

The 2015 rule also did not change the 

provisions of 43 CFR 3162.3–2 that 

apply to injection activities. Pursuant to 

Onshore Order 7, operators must submit 

a wastewater disposal plan prior to 

commencing operations, and they must 

provide the BLM with a permit from the 

EPA, state or tribe along with this plan. 

Even if hydraulic fracturing operations 

were found to cause damaging 

seismicity, the 2015 rule would not 

have controlled the effect, and, 

therefore, rescinding that rule will not 

increase the likelihood of seismicity 

damage. 

Rule Authorities 

Commenters expressed a variety of 

opinions about whether the BLM has 

statutory authority to regulate hydraulic 

fracturing operations on Federal and 

Indian lands. This section of the 

preamble first summarizes the 

arguments for the BLM’s statutory 

authority (and duty) and responds to 

them. It next summarizes the arguments 

against the BLM’s authority and 

responds to them. 

Some commenters assert that the BLM 

has clear authority to regulate hydraulic 

fracturing while other commenters 

disagree. More specifically, some 

commenters state that the BLM issued 

the 2015 rule as part of carrying out its 

statutory duties to prevent unnecessary 

or undue degradation of public lands 

consistent with 43 U.S.C. 1732(b) and to 

issue ‘‘comprehensive’’ regulations 

‘‘necessary to implement the 

provisions’’ of FLPMA, and to ‘‘carry 

out the purposes of [FLPMA] and of 

other laws applicable to the public 

lands.’’ In addition, the commenters 

state that, under the MLA, Congress 

charged the BLM with ensuring that 

Federal lessees conduct their operations 

with ‘‘reasonable diligence, skill and 

care,’’ and instructed the BLM to protect 

the ‘‘interests of the United States’’ and 

‘‘the public welfare.’’ The commenters 

state that Congress authorized the BLM 

to ‘‘prescribe necessary and proper rules 

and regulations and to do any and all 

things necessary to carry out and 

accomplish the purposes’’ of the MLA. 

These commenters conclude that the 

2015 rule is consistent with the BLM’s 

duties under FLPMA and MLA. 

Similarly, some commenters state that 

BLM lands are multiple use lands that 

must fulfill not only resource 

acquisition goals but public recreation 

and public benefit goals. The 

commenters state that actions must be 

consistent with all the uses of BLM 

property and the BLM cannot make this 

determination without the information 

requested in the 2015 rule. Some 

commenters assert that activity on 

public lands must be regulated 

consistently across the nation, 

especially when activities may affect the 

ability of the BLM to uphold its 

multiple use mandate. Some 

commenters argue that the proposed 

action indicates a preference for oil and 

gas leasing and development over other 

multiple uses. The commenters argue 

that this mandate prohibits DOI from 

managing public lands primarily for 

energy development or in a manner that 

unduly or unnecessarily degrades other 

uses. 

Some commenters state that the 

proposed rescission rule is inconsistent 

with the BLM’s statutory duties under 

FLPMA, the MLA, and the IMLA. The 

commenters state that the BLM 

concluded in 2015 that the requirements 

of the 2015 rule were necessary to meet 

those obligations. The commenters 

assert that the BLM’s proposed reversal 

of the 2015 rule is not permissible under 

FLPMA and other laws because the 

BLM failed to explain its departures 

from the factual conclusions it drew 

when promulgating the rule in 2015. 

Similarly, some commenters state that 

it is a dereliction of duty to abdicate the 

responsibility of management of the 


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appropriate and proper use of public 

lands to the states. Commenters state 

that they rely on BLM oversight to 

manage the use of these public lands for 

the benefit of all Americans, not just the 

profits of oil and natural gas companies. 

Commenters assert that the 2017 

proposed rule, if finalized, is guided by 

the short term interests of a few at the 

expense of long-term efforts to protect 

our lands and most importantly, our 

water. 

We agree in part with the comments 

in the previous four paragraphs. The 

BLM’s actions related to oil and gas 

operations on Federal land are subject to 

FLPMA, MLA, the Mineral Leasing Act 

for Acquired Lands (MLAAL), and other 

statutes. FLPMA prescribes that the 

public lands are to be managed for 

multiple use and sustained yield, and 

that the BLM is to prevent unnecessary 

or undue degradation. The MLA 

requires that Federal oil and gas leases 

include provisions to ensure the 

exercise of reasonable diligence, skill, 

and care in operations. No court, 

however, has held that FLPMA requires 

BLM to manage each acre of public land 

to support all uses at all times. Rather, 

oil and gas operations are statutorily 

authorized uses of the Federal lands, 

and thus may be thought of as 

‘‘necessary or due’’ degradation when 

conducted according to appropriate 

standards for protection of the lands and 

associated resources. 

With respect to legal duties, no statute 

requires the BLM to regulate hydraulic 

fracturing operations, and no statute 

requires all oil and gas operations on 

Federal lands to be subject to the same 

regulations. (Indeed, lease stipulations 

and COAs are often different in different 

areas to address local conditions.) 

Rather, the contents of operating 

regulations are within the discretion of 

the Secretary. Mineral Policy Ctr. v. 

Norton, 292 F. Supp. 2d 30, 44–45 

(D.D.C. 2003). State laws have always 

applied to oil and gas operations on 

public lands, even when those laws 

differ from one another. Particularly 

where, as here, there is no compelling 

indication that modern state regulations 

are allowing unnecessary or undue 

degradation to the public lands, the 

Secretary is within his discretion to 

decide that rescinding the 2015 rule 

would reduce the burdens both on 

operators and the BLM, with little 

reduction in the protection of those 

lands. 

This final rule represents no 

dereliction of duty. See generally, 

Gardner v. BLM, 638 F.3d 1217, 1222 

(9th Cir. 2011). Furthermore, it has 

nothing to do with decisions about 

which Federal lands to open for leasing, 

or which parcels to be offered for lease. 

Private, for-profit, development of oil 

and gas on Federal lands is authorized 

by the MLA, the MLAAL, and other 

statutes, and thus objections to those 

authorizations are outside the scope of 

this rulemaking. 

Other commenters assert that the BLM 

lacked authority to issue the 2015 rule. 

Some commenters argue that Congress 

has not delegated authority to the BLM 

to regulate hydraulic fracturing and has 

granted only limited authority to the 

EPA to regulate hydraulic fracturing 

under the Safe Drinking Water Act 

(SDWA). Another commenter states that 

the BLM concedes that it cannot 

regulate enhanced oil recovery, disposal 

wells, or hydraulic fracturing using 

diesel because Congress has designated 

the EPA as the agency with regulatory 

authority over those forms of 

underground injection in the SDWA, 

and the same conclusion should apply 

with respect to non-diesel hydraulic 

fracturing. 

Some commenters argue that the 2015 

final rule requirement to submit water 

source and recovered fluid disposal 

method encroaches upon state 

jurisdiction over waters of the state and 

over underground injection control 

covered in the primacy agreement 

between North Dakota and the EPA in 

1983. 

A commenter asserts that North 

Dakota has a large number of ‘‘splitestate’’ tracts where the Federal 

minerals have been severed from the 

surface estate, which is owned by either 

the State of North Dakota or private 

parties. The commenter argues that the 

2015 final rule inappropriately 

broadened BLM’s authority to regulate 

surface operations for hydraulically 

fractured wells that penetrate Federal 

minerals, but where the United States 

does not own the surface. 

With few exceptions, the arguments 

described in the previous three 

paragraphs were raised in the litigation 

challenging the 2015 rule. We believe 

that rescinding the 2015 rule alleviates 

these concerns and, therefore, the BLM 

need not address them here. The more 

immediate point is that the BLM has 

authority to rescind the 2015 rule, and 

to restore the regulations existing prior 

to the 2015 rule with the few exceptions 

previously discussed. Those regulations 

were promulgated in 1982 and amended 

in 1988. See 43 CFR 3612.3–2 (2014); 47 

FR 47765 (1982); 48 FR 36583 (1983); 52 

FR 5391 (1987); 53 FR 17363 (1988); 53 

FR 22847 (1988). No commenter 

provided evidence that this rescission 

would interfere with the regulation of 

underground injections by states, tribes, 

or the EPA under the SDWA (as 

amended). The BLM does not regulate 

disposal wells; but BLM’s authorization 

is required for use of BLM-managed 

surface for a disposal well. Other 

‘‘enhanced recovery’’ operations are also 

outside the scope of this rulemaking. 

Aside from ‘‘split estates’’ being 

common in several states where the 

BLM regulates oil and gas operations, no 

commenter provided evidence that 

rescission of the 2015 rule would be 

‘‘inappropriate’’ as applied to splitestate lands. If after this rescission of the 

2015 rule, the BLM needs to approve an 

operation that would, for example, 

require substantial quantities of water, 

the requirements of NEPA and the 

applicable regulations would apply. 

One commenter states that, regardless 

of the 2015 rule, the BLM already has 

the ability to impose additional 

conditions related to hydraulic 

fracturing on operators. This includes 

the authority to require the submission 

of additional information in relation to 

the permitting process as well as the 

ability to require that specific actions be 

taken by operators on-site to minimize 

environmental impacts and ensure site 

safety and security. The commenter 

states that the agency has broad 

authority to collect information. The 

commenter also noted that, pursuant to 

43 CFR 3160.0–9, the BLM may request 

data so that proposed operations may be 

approved or to enable the monitoring of 

compliance with granted approvals, and 

operators must respond to such requests 

as a condition of Federal oil and gas 

leases and as a precondition to issuance 

of a permit to drill. Finally, the 

commenter notes that the BLM also has 

the authority to require operators to take 

specific actions when developing a 

lease. 

The commenter is essentially correct. 

After this rescission, the BLM will 

continue to responsibly use its 

authorities to carry out its duties under 

the applicable statutes and regulations. 

One commenter criticizes the BLM’s 

intention to restore the regulations 

under which prior approval is required 

for ‘‘non-routine’’ hydraulic fracturing 

operations. 43 CFR. 3162.3–2 (2014). 

The commenter asserts that the BLM has 

never treated the ‘‘fracturing’’ referred to 

in 43 CFR. 3162.3–2 as equivalent to 

hydraulic fracturing. The commenter 

further argues that proponents of the 

2015 rule have recognized that under 43 

CFR. 3162.3–2 ‘‘companies generally 

treated all hydraulic fracturing 

operations as routine’’ and the BLM did 

not exercise approval authority over 

hydraulic fracturing. 

In response to this and other similar 

comments, the BLM reconsidered its 

proposal to restore the regulatory text in 


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43 CFR 3162.3–2(a) (2014) requiring 

prior approval for ‘‘nonroutine 

fracturing jobs.’’ As a result of this 

review, the BLM decided not to restore 

the ‘‘nonroutine fracturing’’ requirement 

in this final rule. 

As previously mentioned, prior to the 

2015 rule, the regulations at 43 CFR 

3162.3–2(a) (2014) provided in pertinent 

part that a ‘‘proposal for further well 

operations shall be submitted by the 

operator on Form 3160–5 for approval 

by the authorized officer prior to 

commencing operations to . . . perform 

nonroutine fracturing jobs. . . .’’ Those 

regulations, however, did not define 

‘‘nonroutine fracturing jobs’’ or provide 

guidance to operators or the BLM 

authorized officers on how to 

distinguish ‘‘routine’’ from 

‘‘nonroutine.’’ 

The BLM further notes that as a result 

of considerable advances in oil and gas 

development technology in the last 20 

years, hydraulic fracturing practices that 

would have been considered 

‘‘nonroutine’’ when the BLM originally 

issued the regulations requiring prior 

approval for ‘‘nonroutine fracturing 

jobs’’ are now commonly employed and 

considered ‘‘routine.’’ The combination 

of advances in oil and gas development 

technology and the BLM’s existing 

authority to mitigate the potential risks 

of hydraulic fracturing operations 

through site-specific protective 

measures that are applied as a part of 

the environmental review and approval 

process at the APD stage has made postAPD approvals for ‘‘nonroutine 

fracturing jobs’’ at most a very rare 

occurrence. In fact, while the BLM has 

not been tracking requests for approval 

of ‘‘nonroutine fracturing jobs,’’ recent 

inquiries to BLM state offices have not 

revealed any examples of ‘‘nonroutine 

fracturing’’ requests or approvals. Thus, 

given that the ‘‘nonroutine fracturing’’ 

requirement has not, and will not 

foreseeably serve any purpose, and that 

removing it from the regulations could 

reduce the potential for unproductive 

confusion or paperwork without adverse 

effects, the BLM has removed 

‘‘nonroutine fracturing’’ from 43 CFR 

3162.3–2(a) in this final rule. 

As for whether the word ‘‘fracturing’’ 

in 43 CFR 3162.3–2 (2014), includes 

hydraulic fracturing, both the plain 

meaning and its use in the industry, 

includes ‘‘hydraulic fracturing.’’ See, 

e.g., Williams & Myers Manual of Oil 

and Gas Terms, p. 420 (10th ed. 1997) 

(quoting American Gas Ass’n, Glossary 

for the Gas Industry (3d ed. 1981)). The 

BLM has always interpreted that 

regulation to include hydraulic 

fracturing. The commenter does not 

offer any other rational interpretation. 

Therefore, including ‘‘routine 

fracturing’’ in the restored section 

3162.3–2(b) makes plain that an 

operator does not need the BLM’s prior 

approval for hydraulic fracturing 

operations, except those that involve 

increased surface disturbance or that do 

not conform to the standard of prudent 

operating practice. 

Adequacy of Existing Regulations and 

Industry Practices 

The following paragraphs summarize 

comments regarding whether existing 

regulations and industry practices are 

adequate to protect public lands. We 

first summarize and respond to 

comments critical of the existing 

regulations and industry practices, and 

opposed to rescission of the 2015 rule. 

Then we summarize and respond to 

comments arguing that existing state 

and Federal regulations and industry 

practices provide adequate protection 

for federal lands and associated 

resources, and in favor of rescission of 

the 2015 rule. 

Multiple commenters state that when 

the BLM rescinds the 2015 rule, 

regulations would be as they existed 

prior to adoption of the 2015 rule. One 

commenter states that it is apparent that 

almost no oversight of hydraulic 

fracturing was required prior to the 2015 

rule, however, and that the inadequacy 

of the prior regulation for dealing with 

issues related to hydraulic fracturing 

was noted in the rulemaking process for 

the development of the 2015 rule. The 

commenter states that the prior 

regulations required that the BLM 

approve proposals for ‘‘further well 

operations,’’ which included 

‘‘nonroutine fracturing jobs’’ and eight 

other activities. The commenter states 

that no BLM approval was required for 

‘‘routine fracturing’’ jobs unless there 

was additional surface disturbance. 

However, the commenter states that 

‘‘nonroutine fracturing jobs’’ was not a 

defined term and the BLM proposes to 

continue to not define the term. The 

commenter states that the lack of 

defined distinction between nonroutine 

hydraulic fracturing jobs and routine 

hydraulic fracturing jobs made ‘‘this 

distinction functionally difficult to 

apply and confusing for both the agency 

and those attempting to comply with the 

regulations.’’ The commenter states that 

the BLM therefore acknowledges that 

almost all fracturing operations were 

deemed routine and not requiring 

approval from the BLM prior to 

commencing operations. A separate 

commenter notes that this ‘‘pre-existing 

authority’’ clearly existed at the time the 

2015 rule was promulgated and fails to 

provide a valid basis for the BLM’s 

change in position. 

Multiple commenters express concern 

that state laws are insufficient to 

regulate hydraulic fracturing activities. 

The commenters state that, while some 

states have requirements regarding 

particular issues that are equivalent to 

the 2015 rule, many gaps in regulation 

remain. The commenters state that each 

state has areas where its regulations are 

weaker than the 2015 rule, and no state 

requires the same best practices across 

the board. The BLM should keep the 

2015 rule in place to ensure consistent 

protections across the dozens of states 

with existing Federal oil and gas leases. 

One commenter notes that, if the BLM 

recognizes that certain states have less 

comprehensive regulations and 

enforcement mechanisms, it necessarily 

concedes that the legal framework 

within those states will not provide the 

same protections as the regulations 

promulgated by the 2015 rule and 

therefore that the 2015 rule is not 

duplicative of state regulations. Another 

commenter offers that the 2015 rule 

provided specific direction to states on 

how to protect groundwater and other 

resources and set forth a common 

standard of environmental protection at 

hydraulic fracturing sites and brought 

together requirements for a set of 

environmentally protective 

requirements that could be easily 

referenced in one place for consistent 

implementation. 

Multiple commenters argue that the 

BLM’s analysis of state regulations 

included in the RIA suggests the 2015 

rule is not redundant. In particular, two 

commenters highlight that the BLM, in 

its discussion of the mechanical 

integrity test requirement, states it ‘‘is 

an industry recommended practice and 

is required by almost all of the states 

whose regulations we reviewed.’’ One 

commenter states that the BLM rule 

requires operators to perform a 

successful mechanical integrity test 

prior to fracturing at a test pressure 

equal to that which will be applied 

during the actual fracturing operation 

and that the applied pressure must hold 

for 30 minutes with no more than a 10 

percent pressure loss. The commenter 

states that only California and Montana 

have rules that include these 

requirements. The commenter states 

that similar issues exist with regard to 

the annulus pressure monitoring and 

reporting provisions. The commenter 

states further that, in its analysis of state 

regulations for monitoring pressure 

during hydraulic fracturing operations, 

the BLM claims that all states reviewed, 

other than New Mexico, Oklahoma, and 

Utah, explicitly require monitoring 


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during fracturing operations. The 

commenter states that, as with state 

mechanical integrity test rules, the mere 

presence of a rule is not sufficient. 

Rather, the commenter states, the 

substance of state rules must be 

analyzed to determine whether state 

rules contain safeguards equivalent to 

the BLM rule. In addition, with respect 

to review of the storage tank 

requirements, some commenters state 

that the BLM acknowledges that 

‘‘Although the use of tanks is reportedly 

common, only 5 out of the 9 states in 

our in-depth regulatory review had 

requirements specifying that operators 

must use tanks.’’ 

One commenter asserts that the fact 

that all 32 states currently with Federal 

oil and gas leases now have laws or 

regulations that address hydraulic 

fracturing operations in no way 

indicates those regulations are sufficient 

to fulfill the stipulations under 

Executive Order 13783, Promoting 

Energy Independence and Economic 

Growth. Another commenter 

highlighted that despite the existence of 

state requirements, the BLM explained 

in 2015 that ‘‘a major impetus for a 

separate BLM rule is that states are not 

legally required to meet the stewardship 

standards that apply to public lands and 

do not have trust responsibilities for 

Indian lands under Federal laws.’’ 80 FR 

16133; see id. at 16154. The commenters 

assert that ‘‘an additional 12 states have 

introduced laws or regulations’’ 

regarding hydraulic fracturing is a 

natural consequence of the significant 

public concern about the practice, but 

does not obviate the need for Federal 

regulatory standards that promote the 

responsible development of public 

lands and fulfill BLM’s own 

independent statutory duties to ensure 

that oil and gas operations on Federal 

and Indian lands are performed in a 

safe, responsible, and environmentally 

protective manner. 

One commenter states that, unlike 

BLM’s 2015 rule, many states do not 

require operators to obtain a permit 

specifically for fracturing operations. 

The commenter notes that, of the states 

the BLM reviewed in the RIA, only 

California, Montana, and Wyoming 

require a permit for fracturing 

operations. The commenter notes that 

Oklahoma and Colorado require 

notification before fracturing, while 

New Mexico, North Dakota, Texas, and 

Utah require neither a permit nor 

advanced notification. The commenter 

states that this is a significant difference 

between state regulations and the 2015 

rule. 

One commenter specifically claims 

that New Mexico is second only to 

Wyoming in the number of producing 

oil and natural gas leases on federally 

managed land, yet state regulations lack 

important safeguards included in the 

2015 rule. The commenter notes that, 

for example, New Mexico’s hydraulic 

fracturing regulations do not include 

measures to prevent ‘‘frack hits,’’ which 

occur when the hydraulic fracturing of 

one well causes a pressure transfer that 

interferes with production in another 

well. The commenter states that, as 

acknowledged in the EA for the 

rescission of this rule, these frack hits 

pose a tangible threat to water resources 

and the ecological integrity of public 

land subjected to excessive and 

haphazard drilling. 

One commenter contends that the 

2015 rule contains two essential safety 

components: Wellbore testing prior to 

hydraulic fracturing and storage of 

flowback waste in tanks rather than pits. 

The commenter states that these two 

areas, if not adequately regulated, 

present significant risks of 

environmental contamination. The 

commenter asserts that the 2015 rule 

represented improvements over existing 

Federal and Colorado state rules in 

these areas. The commenter states that, 

in proposing to rescind them, the BLM 

clearly recognized what researchers 

have also concluded: Hydraulic 

fracturing poses pollution risks to air, 

soil and water that are highly correlated 

with failure to ensure wellbore integrity 

and pit storage of waste. The commenter 

states that the 2015 rule is the BLM’s 

best determination, based on its own 

expertise and expert outside input, for 

preventing such contamination and the 

rule should therefore not be rescinded. 

One commenter stated that BLM’s 

suggestion that a major expansion of 

state regulation has occurred since 2015 

is misleading because the states with 

new regulations represent an 

insignificant fraction of Federal oil and 

gas development. 

One commenter states that the 

Appendix to the EA for the proposed 

rule showed that the new state 

regulations lack many of the protections 

imposed by the 2015 rule. The 

commenter states that, for example, 

most state regulations do not mandate 

the use of tanks instead of open pits, do 

not require measures to prevent frack 

hits, and do not require the same 

measures to ensure adequate cementing. 

One commenter said that the BLM 

assumes substantial continued use of 

storage tanks by operators in many 

states even after the rule is rescinded, 

although this is implausible. The 

commenter states that, for example, the 

BLM assumes that 100 percent of 

operators in Texas and New Mexico will 

use tanks even after rescission because 

of state regulations despite the fact that 

both states allow exemptions to their 

regulatory standards. The commenter 

states that the BLM also assumes 100 

percent voluntary compliance in Utah 

despite the state’s ‘‘unclear’’ standards, 

and 92 percent voluntary compliance in 

Wyoming. The commenter states that 

the estimation of voluntary compliance 

rates is based partly on the fact that 

‘‘tanks are likely to be less costly than 

pits on smaller and medium volume 

jobs.’’ The commenter states that 

without a Federal regulatory backstop, 

past voluntary compliance rates and 

past evidence of job size in particular 

states do not guarantee the continued 

use of tanks in the future. 

In response to the foregoing 

paragraphs in this section, when issuing 

the 2015 rule, the BLM acknowledged 

that it already had ‘‘an extensive process 

in place to ensure that operators 

conduct oil and gas operations in an 

environmentally sound manner that 

protects resources’’ (80 FR 16133). At 

that time, the BLM also noted that while 

‘‘the regulations and Onshore Orders 

that have been in place to this point 

have served to provide reasonable 

certainty of environmentally responsible 

development of oil and gas resources 

. . .,’’ the 2015 rule ‘‘will complement 

these existing rules by providing further 

assurance’’ that hydraulic fracturing 

operations are conducted in an 

environmentally responsible manner 

across all public and Indian lands (id. 

at 16137). However, as previously 

noted, in accordance with Executive 

Order 13783 and Secretarial Order No. 

3349, the BLM recently conducted a 

review of the 2015 rule, existing state 

laws and regulations, existing Federal 

authorities and recent incident reports 

submitted to the BLM for Federal and 

Indian oil and gas operations. As a 

result of this review, the BLM now 

believes that the 2015 rule imposes 

unnecessary and unjustified compliance 

costs and burdens. Moreover, in light of 

state regulatory programs, the 

sovereignty of tribes to regulate oil and 

gas operations on their lands, and the 

BLM’s pre-existing regulations and 

Onshore Oil and Gas Orders and other 

Federal authorities, the rescission of the 

2015 rule will not lead to poorly 

regulated oil and gas development 

activities, including hydraulic fracturing 

operations, on Federal and Indian lands. 

State regulatory programs can more 

readily address local conditions than 

may the BLM’s rules. Thus, the fact that 

state rules differ from each other and are 

not identical to the 2015 rule do not 

render state programs ineffective, or the 


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2015 rule essential. Furthermore, as 

expressed in the Executive Orders, it is 

this Administration’s policy to reduce 

unnecessary regulatory burdens on 

energy development. Based on the rarity 

of adverse environmental impacts that 

have occurred from hydraulic fracturing 

operations before the 2015 rule, and the 

lack of compelling evidence that state 

regulatory programs are inadequate, the 

2015 rule is a duplicative layer of 

Federal regulation that should be 

rescinded. To the extent that the 

comments address the pre-2015 rule 

requirements for prior approval of 

‘‘nonroutine fracturing jobs,’’ see the 

BLM’s response to comments in the 

Rule Authorities section above. As 

previously discussed, the BLM has 

decided not to restore the requirements 

for ‘‘nonroutine fracturing jobs’’ in 43 

CFR 3162.3–2(a). 

One commenter states that the 

proposed rescission of the 2015 rule 

does not provide substantive evidence 

that industry practice is sufficient to 

prevent the pollution and degradation of 

hydrological resources on public lands. 

The commenter states that, given its 

self-described mandate to provide bona 

fide minimum standards to ensure 

industry compliance, as well as its 

obligations under NEPA, the BLM 

should not rescind protections given to 

groundwater in the 2015 Rule. 

While industry practices can and 

often do work to appreciably reduce the 

risks associated with oil and gas 

development, the BLM does not solely 

rely on industry practice to ensure that 

oil and gas development operations on 

public lands are conducted in an 

environmentally responsible manner. 

Operators on Federal lands must 

comply with all Federal, state, and local 

requirements. On Indian lands, they 

must comply with all Federal and tribal 

permitting and reporting requirements. 

As previously noted, the BLM has an 

extensive process in place to ensure that 

operators conduct oil and gas operations 

in a safe and environmentally sound 

manner that protects resources. The 

environmental reviews conducted under 

NEPA provide an opportunity for the 

BLM to consider and mitigate 

potentially adverse environmental 

impacts, including those involving 

hydrological resources. If hydrological 

concerns arise during the BLM’s review 

of a specific oil and gas proposal, the 

BLM may require additional 

information, or impose protective 

measures, such as lease stipulations or 

COAs attached to APDs, to mitigate the 

potential adverse impacts. 

One comment disapproves of the 

proposed rescission because of a lack of 

reasonable regulation in Idaho to protect 

the communities impacted by hydraulic 

fracturing. The commenter adds that 

there is a lack of standardization in 

incident reporting processes in different 

states by highlighting a peer-reviewed 

study published in February 2017 in the 

Journal of American Chemical Society 

entitled, ‘‘Unconventional Oil and Gas 

Spills: Risks, Mitigation Priorities, and 

State Reporting Requirements.’’ The 

study points out differences in reporting 

requirements in each of the four states 

that produce most oil and gas using 

hydraulic fracturing, and documents a 

total of 6,648 spills between 2005 and 

2014. 

Contrary to the commenter’s 

assertion, the BLM reviewed the 

applicable Idaho state laws and 

regulations and found an extensive 

regulatory framework for addressing the 

risks associated with hydraulic 

fracturing. See Idaho Admin. Code 

§§ 20.07.02.210 and 20.07.02.211. As 

previously discussed, the fact that state 

regulatory programs differ from each 

other and are not identical to the 2015 

rule does not render the state programs 

ineffective, or the 2015 rule essential. 

Furthermore, operators on Federal or 

Indian lands are required to report 

adverse incidents directly to the BLM. 

The BLM requires operators to clean up 

spills promptly and thoroughly. Those 

requirements will not change with the 

rescission of the 2015 rule. 

Multiple commenters asserted that the 

hydraulic fracturing regulations of 

specific states are adequate, and thus 

the 2015 rule is not needed. One 

commenter highlighted that there has 

never been a mechanical failure in 

North Dakota since the North Dakota 

Industrial Commission’s hydraulic 

fracturing regulations were 

implemented; a separate commenter 

asserts that the regulatory oversight 

provided by the State of North Dakota 

protects the environment while 

providing permitting in a careful but 

timely manner. Another commenter 

suggested that, in Wyoming, operators 

have employed hydraulic fracturing 

technology safely and efficiently for 

decades. Another commenter asserts 

that New Mexico’s hydraulic fracturing 

rules and regulations are protective of 

the environment and that hydraulic 

fracturing is proficiently regulated by 

the State of New Mexico, including 

rigorous protocols for casing, cementing, 

completions, recompletions and all 

associated procedures, including 

extensive monitoring and pressuretesting requirements, as well as 

mechanical and pressure-based well 

integrity testing. That commenter states 

that adding an additional layer of 

Federal regulation on top of an efficient 

and effective set of existing state 

regulations will provide no additional 

environmental protection. Additionally, 

one commenter states that the State of 

Utah has an effective regulatory program 

that, for many years, has successfully 

monitored the construction and 

operation of oil and gas wells, including 

well completion operations, such as 

hydraulic fracturing, water 

management, and chemical disclosure. 

Another commenter also asserts that 

Colorado rules and regulations along 

with the Memorandum of Agreement 

with the BLM (and the United States 

Forest Service) for Permitting of Oil and 

Gas Operations on BLM and National 

Forest Service Lands in Colorado should 

suffice in coordinating the permitting of 

oil and gas operations on Federal lands. 

One commenter states that, in 

Oklahoma, regulators live in the 

communities most affected, are in touch 

with evolving technical and scientific 

data, and have a demonstrated track 

record of working effectively with 

industry as well as the other 

stakeholders of public and private 

lands. In addition, a commenter asserts 

that Western States with oil and gas 

production have robust regulations to 

protect the environment and public 

health and are best-equipped to regulate 

oil and gas development. The 

commenter asserts that the Western 

States have experienced few, if any, 

adverse impacts involving water quality 

and water allocation attributable to 

hydraulic fracturing and that the 

process has been used for more than a 

million wells for over sixty years, and 

is responsible for increasing the nation’s 

ability to recover oil and gas at great 

economic benefit. 

The BLM thanks the commenters for 

providing comments and supporting 

information. 

One commenter states that the EA for 

the 2017 proposed rule reveals that 

misguided public sentiment regarding 

hydraulic fracturing was a lead 

motivator for the BLM’s initiation of 

rulemaking in 2010. The commenter 

states that BLM also accurately observed 

that adverse environmental impacts 

from hydraulic fracturing were a rare 

occurrence prior to the final 2015 rule, 

and that observation remains true today. 

The commenter asserts that, instead of 

imposing a costly regulatory burden on 

oil and gas operators, the BLM would be 

better served by dedicating resources to 

countering these unfounded public 

concerns. 

The BLM agrees that the 2015 rule 

imposes compliance costs on the oil and 

gas industry that are no longer justified. 

The remaining statements in this 


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comment are outside the scope of this 

rulemaking. 

One commenter states that the 2015 

rule would have required that all fluids 

recovered between the commencement 

of hydraulic fracturing operations and 

the authorized officer’s approval of a 

produced water disposal plan under 

BLM requirements must be stored in 

rigid enclosed, covered, or netted and 

screened above-ground tanks. The 

commenter further states that no 

regulatory mechanism exists for the 

‘‘approval of a produced water disposal 

plan’’ on an individual well basis, thus 

the limitations the 2015 rule purports to 

apply to recovered fluids storage are 

premised on an administrative approval 

process that does not exist. 

As this final rule rescinds the 2015 

rule, this comment is outside the scope 

of the present rulemaking action. 

Adequacy of Tribal Regulations 

Multiple commenters state that the 

BLM’s suggestion that the 2015 rule is 

‘‘duplicative’’ of existing tribal 

regulation is unsupported. The 

commenters state that the differences 

between the 2015 BLM rule and other 

regulations are even greater on Indian 

lands, where many tribes have not 

developed their own regulatory 

programs to manage hydraulicallyfractured oil and gas development. The 

commenters state that this is 

acknowledged in the EA. Another 

commenter asserts that relying on state 

regulations is inadequate for protecting 

tribes. One commenter describes 

experiencing multiple oil spills related 

to injection wells on tribal lands and the 

lack of resources to respond and hold 

corporations accountable for the injury, 

damage, and unnecessary burden the oil 

industry placed on the tribe and its 

resources. The commenter states that, 

even though the sovereignty of tribes to 

regulate operations on their lands may 

be an option and reality for some tribes, 

others have yet to develop the capacity 

to enforce such regulations on their 

lands and may never have the resources 

to effectively manage and enforce oil 

and gas regulations. The 2015 rule 

would directly benefit and help protect 

these tribes. 

We acknowledge that not all oil and 

gas producing tribes have exercised 

their sovereignty to regulate hydraulic 

fracturing activities. Rescission of the 

2015 rule, however, does not affect 

those tribes’ options for promulgating 

and implementing programs in exercise 

of their self-governance and sovereignty. 

In addition, the BLM regulations 

applicable to tribal lands, which include 

the regulations at 43 CFR subpart 3162, 

as amended by this final rule, and 

Onshore Oil and Gas Orders 1, 2, and 7, 

reduce the risks associated with 

hydraulic fracturing by providing 

specific requirements for well 

permitting; construction, casing, and 

cementing; and disposal of produced 

water. These BLM regulations, along 

with the enforcement mechanisms that 

are available to the BLM on tribal lands, 

provide reasonable assurance that oil 

and gas development on tribal lands 

will occur in an environmentally 

responsible manner, even when tribal 

regulations or enforcement mechanisms 

to ensure responsible oil and gas 

development are not fully developed. 

Rule Process 

Multiple commenters assert that the 

BLM has failed to explain why the 2015 

rule is no longer needed to ensure the 

environmentally responsible 

development of Federal oil and gas 

resources. These commenters note that 

the Supreme Court has outlined 

procedures that an agency must take to 

comply with the Administrative 

Procedure Act (APA) when changing an 

existing regulation, including the need 

to provide a reasoned analysis or 

reasoned explanation for the change. 

The commenters contend that the BLM’s 

2017 proposed rule does not meet these 

requirements and is fraught with loose 

language that does not demonstrate a 

reasoned basis or reasoned explanation 

for the change. 

Some commenters assert that the 

BLM’s decision to rely on Executive 

Order 13783 and Secretarial Order 3349 

to justify the proposed rescission fails to 

provide the ‘‘reasoned explanation’’ 

required by the APA. These commenters 

note that Executive Order 13783 directs 

agencies to review regulations that 

‘‘unduly burden the development of 

domestic energy resources beyond the 

degree necessary to protect the public 

interest or otherwise comply with the 

law.’’ They contend that the BLM does 

not explain why the 2015 rule 

‘‘burdens’’ the development of energy 

resources as defined by the Executive 

Order, particularly in light of the BLM’s 

findings that the 2015 rule would cost 

just a small fraction of a percent of the 

profit margins of small operations. The 

commenters further state that the 

proposed rescission does not address 

other provisions of the Executive Order, 

including that ‘‘all agencies should take 

appropriate actions to promote clean air 

and clean water for the American 

people.’’ 

Finally, some commenters state that 

the BLM articulated a reasoned 

justification in 2015 for the storage tank 

requirement, and that the agency now 

proposes to rescind that same 

requirement without addressing the 

evidence from the 2015 record or 

offering any explanation for why a tank 

requirement would no longer deliver 

important environmental benefits. 

On the contrary, the BLM believes 

that it has articulated a reasoned 

justification for rescinding the 2015 

final rule. It therefore has not changed 

this final rule based on these comments. 

The Supreme Court has explained that 

‘‘[a]gencies are free to change their 

existing policies as long as they provide 

a reasoned explanation for the change,’’ 

‘‘display awareness that [they are] 

changing position,’’ and ‘‘show that 

there are good reasons for the new 

policy.’’ Encino Motorcars, LLC v. 

Navarro, __U.S. __, 136 S. Ct. 2117, 

2125–26 (2016). However, agencies do 

not need to show ‘‘that the reasons for 

the new policy are better than the 

reasons for the old one’’ or necessarily 

‘‘provide a more detailed justification 

than what would suffice for a new 

policy created on a blank slate.’’ FCC v. 

Fox Television Stations, Inc., 556 U.S. 

502, 515 (2009). 

The BLM has provided a reasoned 

explanation for rescinding the 2015 rule 

that accords with these requirements: 

The BLM believes that the 2015 rule, 

which would impose compliance costs 

and information requirements that are 

duplicative of regulatory programs of 

many states and some tribes, is 

redundant and therefore unnecessarily 

burdensome on regulated entities. Any 

marginal benefits provided by the 2015 

rule do not outweigh the rule’s costs, 

even if those costs are a small 

percentage of the cost of a well. In fact, 

benefits were largely unquantified in the 

2015 rule. The BLM has also provided 

good reasons for its new policy, 

explaining that state regulatory 

programs (including those of the states 

with most of the Federal oil and gas 

leasing), the sovereignty of tribes to 

regulate operations on their lands, and 

other preexisting Federal regulations 

provide a better framework than the 

2015 rule for mitigating the impacts 

associated with hydraulic fracturing 

operations. For example, there are 

currently laws or regulations to address 

hydraulic fracturing in all 32 of the 

states in which the BLM currently 

manages oil and gas leases, and the BLM 

has several existing requirements, some 

of which are set out at 43 CFR 3162.3– 

1 and in Onshore Oil and Gas Orders 1, 

2, and 7, that allow it to reduce the risks 

associated with hydraulic fracturing. 

Additionally, the BLM has explained 

that rescinding the 2015 rule’s storage 

tank requirement may alleviate some 

on-the-ground indirect impacts, such as 


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those associated with truck traffic to 

transport tanks to and from well sites. 

The BLM is not required to 

demonstrate that its reasons for 

rescinding the 2015 rule are better than 

or refute its rationale for initially 

promulgating the 2015 rule. This is 

especially true where, as here, the 2015 

rule was never operational and did not 

engender serious reliance interests on 

the part of the regulated community. By 

providing an explanation for why it is 

rescinding the 2015 rule and 

demonstrating that there are good 

reasons for relying on state regulations, 

tribal sovereignty, and the BLM’s 

preexisting regulations, the BLM has 

provided the necessary justification for 

changing its policy regarding the 

regulation of hydraulic fracturing. 

Furthermore, there is no legal 

impediment to this Administration 

implementing its policies and priorities 

through rulemaking to rescind or amend 

existing regulations. 

Some commenters state that the BLM 

failed to consider a full range of 

alternatives in its environmental 

assessment. In particular, the 

commenters state that the BLM should 

have analyzed alternatives that 

strengthen the rule instead of rescinding 

it, including alternatives that regulate 

stimulation operations broadly, area of 

review, strengthen frack hit protections, 

baseline water testing, well 

construction, and restricted chemicals. 

The BLM disagrees. The BLM 

considered a reasonable range of 

alternatives in its environmental 

assessment in light of the proposed 

action’s purpose and need and the 

environmental effects that may result 

from rescinding the 2015 final rule. 

NEPA requires an agency to analyze all 

reasonable alternatives related to the 

purposes of the agency’s action. Where, 

as here, an agency prepares an EA, the 

range of alternatives that the agency 

must consider, and the degree of 

analysis that is required, is less than is 

required for environmental impact 

statements. Moreover, ‘‘‘the range of 

alternatives that [an] agency must 

consider [in an EA] decreases as the 

proposed action’s environmental impact 

becomes less and less substantial,’ ’’ 

Earth Island Inst. v. United States Forest 

Serv., 697 F.3d 1010, 1023 (9th Cir. 

2012) (quoting Louisiana Crawfish 

Producers Ass’n–West v. U.S. Army 

Corps of Engineers, 463 F.3d 352, 356– 

57 (5th Cir. 2006) (alterations omitted)), 

and it becomes even more diminished 

where, as here, an agency concludes 

that the action being considered will 

have a minimal environmental effect. 

See Save Our Cumberland Mts. v. 

Kempthorne, 453 F.3d 334, 342–43 (6th 

Cir. 2006). Furthermore, although the 

unsigned draft EA accompanying the 

proposed rulemaking analyzed only two 

alternatives, the signed EA for this final 

rule analyzes four alternatives, and 

explains why other alternatives were 

considered but not carried forward for 

analysis. 

As described in detail above, this final 

rule will have minimal environmental 

effects. It will not authorize hydraulic 

fracturing operations as a whole, it will 

not authorize any particular hydraulic 

fracturing operation on Federal or 

Indian lands, and it will not impact the 

overall number of hydraulic fracturing 

operations on Federal or Indian lands. 

What few impacts may result from the 

final rule will be mitigated by state and 

tribal regulations and the preexisting 

Federal regulations. In light of these 

minimal impacts, the BLM did not need 

to analyze additional alternatives 

beyond the alternative that were 

analyzed in the EA that has been 

prepared for this final rule. 

Additionally, the commenters are 

mistaken that the BLM should have 

analyzed alternatives that strengthened 

the 2015 final rule. The purpose and 

need of a proposed action determines 

the universe of alternatives that an 

agency must consider. The purpose of 

the BLM’s proposed action (the 2017 

prosed rule) ‘‘is to reduce and eliminate 

unnecessary regulatory requirements in 

order to more efficiently manage oil and 

gas operations,’’ and the need is ‘‘to 

more prudently balance the BLM’s 

interest in mitigating the risks of oil and 

gas development operations, including 

hydraulic fracturing, . . . with the 

compliance burdens it imposes on the 

oil and gas industry.’’ Alternatives that 

would retain or increase the regulatory 

burdens imposed by the 2015 final rule 

on the oil and gas industry would not 

further the BLM’s purpose and need for 

action and, therefore, did not have to be 

analyzed. 

Some commenters assert that the 

BLM’s proposed rescission of the 2015 

rule fails to comply with NEPA. These 

commenters state that the EA prepared 

by the BLM contains only a brief 

discussion of a few of the impacts 

related to groundwater, surface water, 

and greenhouse gas emissions, which it 

determines to be insignificant. The 

commenters contend that these 

determinations contradict those found 

in the EA that the BLM prepared when 

it promulgated the 2015 rule, ignore 

recent science regarding hydraulic 

fracturing, and contradict several 

reviews of hydraulic fracturing 

conducted in California and elsewhere 

that demonstrate the potential for other 

significant environmental impacts that 

may result from the repeal of the 2015 

rule. 

The BLM disagrees with the 

commenters that the EA’s discussion of 

impacts constituted a NEPA violation. 

Pursuant to CEQ’s regulations 

implementing NEPA, an EA needs to 

include only ‘‘brief discussions . . . of 

the environmental impacts of the 

proposed action and alternatives.’’ (See 

40 CFR 1508.9(b).) The EA’s discussion 

of the impacts related to groundwater, 

surface water, and greenhouse gas 

emissions satisfies this requirement. 

Moreover, BLM notes that the EA 

references appropriate portions of the 

2015 EA addressing these impacts, 

incorporating them into this EA. 

Similarly, the BLM disagrees with the 

commenters that its determinations that 

the impacts to groundwater, surface 

water, and greenhouse gas emissions of 

this final rule are insignificant 

contradict its determinations in the EA 

prepared for the 2015 rule. With regard 

to surface water and groundwater, the 

2015 EA merely stated that, under the 

No Action Alternative (i.e., existing 

regulations), the impacts to surface 

water and groundwater described in the 

EA would be ongoing. The 2015 EA 

neither stated nor concluded that the 

impacts to those resources from the No 

Action alternative would be significant. 

Similarly, there is no contradiction 

between the two EAs regarding impacts 

related to greenhouse gas emissions. 

The 2015 EA did not, as the commenters 

suggest, determine that greenhouse gas 

emissions related to the No Action 

alternative would be significant. On the 

contrary, the 2015 EA found that 

although ‘‘the various action 

alternatives would result in some small 

variations in [greenhouse gas 

emissions],’’ none of them ‘‘would 

appreciably affect the amount of GHG 

emissions arising from oil and gas 

operations on Federal and tribal lands 

as compared to [existing regulations].’’ 

This finding is consistent with the 

BLM’s current determination that 

rescinding the 2015 final rule would not 

result in an appreciable increase in 

greenhouse gas emissions. 

The BLM also disagrees that the 

determinations in the EA ignores recent 

science regarding hydraulic fracturing. 

The BLM reviewed and considered a 

wide range of scientific evidence, 

including recent studies, in assessing 

the environmental impacts associated 

with rescinding the 2015 final rule. For 

example, the BLM gave considerable 

weight to the EPA’s December 2016 

study of hydraulic fracturing’s potential 

impact on drinking water resources. 

NEPA, however, does not require the 

BLM to rely equally on all such studies. 


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Rather, NEPA permits agencies to rely 

on their expertise to determine which 

studies are particularly relevant or 

scientifically accurate. The fact that the 

EA does not specifically address the 

findings in the studies referenced in the 

comment does not mean that such 

studies were not considered. It simply 

means that, in analyzing the impacts 

associated with rescinding the 2015 

final rule, the BLM found other studies 

more relevant. 

Some commenters assert that the BLM 

violated NEPA by basing its EA on 

unfounded assumptions rather than 

sufficient evidence or analysis. The 

commenter states, for example, while 

acknowledging potential risks from the 

impacts that it did consider, the BLM 

finds that existing state and tribal 

regulations and the BLM’s existing 

authorities will ‘‘allow it to reduce the 

risks associated with hydraulic 

fracturing.’’ However, the commenter 

states, the 2015 final rule remains more 

comprehensive than the requirements in 

many states and tribes, and the BLM has 

previously stated that the final rule 

‘‘would result in a reduction of the risks 

associated with hydraulic fracturing 

operations on Federal and Indian 

lands.’’ 

The commenters are mistaken. The 

BLM based its EA on evidence, analysis, 

and technical expertise, not unfounded 

assumptions. For example, the specific 

conclusion referenced by the 

commenters that existing regulatory 

frameworks will allow the BLM to 

reduce the risks associated with 

hydraulic fracturing is based on the 

BLM’s detailed review of state, tribal, 

and Federal regulations. See RIA at 

§ 2.12, and EA at Appendix 1. That 

review indicated that all 32 states with 

existing Federal oil and gas leases 

currently have regulations to address 

hydraulic fracturing operations, as do 

some tribes with oil and gas resources. 

Additionally, the BLM has several 

existing requirements, some of which 

are set out at 43 CFR subpart 3162 and 

in Onshore Oil and Gas Orders 1, 2, and 

7, that allow it to reduce the risks 

associated with oil and gas operations, 

including those of hydraulic fracturing. 

The BLM also possesses discretionary 

authority allowing it to impose sitespecific protective measures reducing 

the risks associated with hydraulic 

fracturing. Relying on this evidence to 

conclude that the 2015 final rule was 

duplicative of an existing regulatory 

framework that will reduce the risks 

associated with hydraulic fracturing 

operations is a technical judgment 

within the BLM’s area of expertise. The 

BLM may rely on the judgment of its 

own experts, see San Juan Citizens 

Alliance v. Stiles, 654 F.3d 1038, 1057 

(10th Cir. 2011), even if the same 

regulatory framework would have led 

the commenters to arrive at a different 

conclusion. See Greater Yellowstone 

Coal. v. Flowers, 359 F.3d 1257, 1271 n. 

14 (10th Cir. 2004). 

The commenters are also mistaken 

that the 2015 rule’s potential to reduce 

risks somehow calls into question the 

BLM’s conclusion that it can rely on 

state, tribal, and Federal regulatory 

framework to reduce the risks associated 

with hydraulic fracturing operations. 

The 2015 rule was meant to ‘‘add to’’ 

and ‘‘complement’’ this existing 

regulatory framework. (80 FR 16128). 

Regardless of whether those additions 

would have resulted in additional risk 

reductions, the BLM’s conclusion that 

the existing regulatory framework is 

capable of reducing risks remains valid. 

Some commenters assert that the BLM 

must prepare a full EIS before 

rescinding the 2015 rule. 

The BLM has not prepared an EIS in 

response to those comments. NEPA 

requires an agency to prepare an EIS 

when it proposes to take a major Federal 

action that significantly affects the 

quality of the human environment. 

Agencies must consider the context of 

the action and the intensity of its 

impacts to determine whether an action 

significantly affects the quality of the 

environment. As discussed in the BLM’s 

EA and FONSI, the BLM considered the 

context of rescinding the 2015 rule and 

determined that doing so would remove 

information requirements that are 

duplicative of the regulatory programs 

of many states and some tribes with 

active oil and gas development. The 

BLM also considered the intensity, as 

that term is defined in CEQ’s NEPA 

regulations, of rescinding the 2015 final 

rule. Applying the intensity factors 

listed in 40 CFR 1508.27(b), the BLM 

determined that rescinding the 2015 

rule would not have a severe impact on 

the quality of the human environment. 

Based on its considerations of the 

context and intensity of the proposed 

action, the BLM determined that 

rescinding the 2015 rule will not 

significantly affect the quality of the 

human environment. In light of that 

determination, it is unnecessary to 

prepare a full EIS before rescinding the 

2015 rule. 

Some commenters assert that the BLM 

failed to analyze indirect and 

cumulative impacts of rescinding the 

2015 rule. 

Agencies are required to analyze the 

indirect and cumulative impacts 

associated with a proposed action. The 

BLM’s analysis of those impacts is set 

forth, respectively, in sections 4.0 and 

5.0 of the EA. 

One commenter states that ESA and 

NHPA consultations are required before 

the 2015 final rule can be rescinded. 

The ESA requires an agency to 

consult with the U.S. Fish and Wildlife 

Service or National Marine Fisheries 

Service to ensure that any action it 

authorizes, funds, or carries out is not 

likely to jeopardize the continued 

existence of any listed species or result 

in the destruction or adverse 

modification of critical habitat. Section 

106 of the NHPA requires Federal 

agencies to take into account the effects 

of their undertakings on historic 

properties included on or eligible for 

inclusion on the National Historic 

Register of Historic Places (NRHP), and 

to afford the Advisory Council on 

Historic Preservation a reasonable 

opportunity to comment on such 

undertakings. 

The BLM is not required to perform 

ESA or NHPA consultations to rescind 

the 2015 rule. Neither the rescission nor 

implementation of the 2015 rule would, 

by themselves, authorize or prohibit 

hydraulic fracturing operations as a 

whole, or any particular hydraulic 

fracturing operation on Federal or 

Indian lands. These actions are also not 

expected to impact the number of 

hydraulic fracturing operations. As 

such, the actions would not, by 

themselves, have an effect on any listed 

species or its habitat nor any historic 

properties that are listed on or eligible 

for listing on the NRHP. After the 2015 

rule is rescinded, the BLM will continue 

to make decisions involving the 

development of oil and gas resources on 

BLM-administered lands at the land use 

planning, leasing, and permitting stages 

in compliance with NEPA, the ESA, and 

the NHPA. Indeed, site-specific 

proposals to drill for and develop oil 

and gas resources that involve hydraulic 

fracturing operations would require the 

same level of compliance with the ESA 

and NHPA if the BLM did not rescind 

the 2015 rule. Given that the BLM 

considers the cumulative and sitespecific effects of proposed oil and gas 

operations as part of its land use 

planning, leasing, and permitting 

processes, as is discussed earlier in this 

preamble, and will conduct appropriate 

consultations whenever and wherever 

appropriate, consultation under the ESA 

and NHPA is not required at this time. 

Some commenters state that, because 

the issue of ‘‘frack hits’’ was not part of 

the discussions between stakeholders 

and the agency during the rulemaking 

process for the 2015 rule, it is 

reasonable that the BLM would rescind 

the 2015 rule and defer issuance of any 


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rule related to ‘‘frack hits’’ until the 

appropriate regulatory procedures are 

invoked. 

Some commenters also state that the 

2015 rule would have required that 

before hydraulic fracturing operations 

begin, the operator must perform a 

successful mechanical integrity test of 

any casing or fracturing string through 

which the operation will be conducted. 

These commenters contend that the 

administrative record prepared for the 

2015 final rule ‘‘does not contain 

comments regarding the efficacy, cost, 

or purpose of testing the lateral portion 

of the wellbore because that 

requirement was not part of the 

proposed rule.’’ 

The commenters contend that 

measures to protect against ‘‘frack hits’’ 

and requiring mechanical integrity tests 

included in the 2015 rule were not 

logical outgrowths of the BLM’s 

proposed rule. Because the BLM is 

rescinding the 2015 rule, and because 

the present rule rescission does not 

contain measures related to ‘‘frack hits’’ 

or require mechanical integrity tests, it 

is unnecessary to address whether the 

issues of ‘‘frack hits’’ and mechanical 

integrity tests are a logical outgrowth of 

the proposed rule that the BLM 

published. 

One commenter states that it is 

impossible to reconcile a requirement to 

conduct a mechanical integrity test on 

casing that does not protect usable water 

and it is likely to increase costs of 

completing a well by $75,000 to 

$100,000. Given the absence of any 

benefit that will be derived from these 

costs, rescission of the 2015 rule is 

reasonable and appropriate. 

The BLM agrees that rescission of the 

2015 rule is appropriate and good 

policy. 

Costs of 2015 Rule and Effects on 

Industry 

Multiple commenters state that the 

2015 rule would not be burdensome for 

industry. One commenter states that 

there are several problems with BLM’s 

assertion that the 2015 rule ‘‘imposes 

burdensome reporting requirements and 

other unjustified costs on the oil and gas 

industry’’ (82 FR 34464). The 

commenter states first, that the BLM’s 

own RIA finds that the 2015 rule would 

cost approximately $9,690 per well, or 

about 0.1 percent to 0.2 percent of the 

cost of drilling a well (RIA at 3, Tables 

4.2.2.a, 4.2.2.b). The commenter further 

notes that the BLM’s estimate of the 

costs of the 2015 rule have not 

substantially changed since 2015 (80 FR 

16,130 (estimating compliance costs to 

be ‘‘approximately 0.13 to 0.21 percent 

of the cost of drilling a well’’)). The 

commenter states that BLM also noted 

that its cost estimates may be overstated 

where industry is already in 

compliance. 

In the RIA for the 2015 rule, the BLM 

asserted that regulation would result in 

a reduction of the risks associated with 

hydraulic fracturing operations on 

Federal and Indian lands, without 

providing an estimate for the monetary 

benefits of this risk reduction. The BLM 

noted in the 2015 RIA that the majority 

of the requirements were consistent 

with industry practice and that some 

were required by state regulations or 

were generally addressed by existing 

BLM requirements. In light of the 

protections available under other 

Federal regulations, the increased 

prevalence of state and tribal laws and 

regulations to address hydraulic 

fracturing, and new industry practices, 

the BLM believes that the requirements 

imposed by the 2015 rule are redundant 

and therefore unnecessarily 

burdensome. There were no monetary 

estimates of any incremental benefit that 

the 2015 rule provides in addition to 

existing Federal, state, and tribal 

regulations and industry standards. 

Such incremental benefits, however, are 

likely to be too small in light of the 

increased prevalence and 

comprehensiveness of these standards 

since the original RIA was published to 

justify compliance costs that are both 

monetized and certain to exist. 

One commenter notes that, in 2015, in 

response to commenters’ arguments that 

the rule was not economically justified 

and that benefits did not exceed costs, 

the BLM responded that the 2015 rule 

was ‘‘prudent,’’ ‘‘necessary,’’ and 

‘‘common-sense,’’ and that the rule’s 

‘‘burden should be minimal.’’ The 

commenter asserts that, in its proposed 

rescission, the BLM never sufficiently 

explains why those same prudent, 

common-sense requirements, deemed 

necessary to environmental protection 

after weighing compliance costs, are 

now suddenly unnecessary. 

As noted in previous responses, in 

light of the protections available under 

other Federal regulations, the increased 

prevalence of state and tribal laws and 

regulations to address hydraulic 

fracturing, and new industry practices, 

the BLM now believes that the 

requirements imposed by the 2015 final 

rule are redundant or only marginally 

beneficial, and therefore unnecessarily 

burdensome. 

One commenter states that the BLM 

fails to acknowledge the forgone cost 

savings of the tank requirement that will 

partly offset any estimated cost savings 

from the rescission. The commenter 

notes that storage tank requirement from 

the 2015 rule was anticipated to 

generate long-term cost savings for 

industry that would have partly offset 

their compliance costs. The commenter 

suggests that rescinding the requirement 

will forgo those cost savings, and that 

loss of cost savings will partly offset any 

positive cost savings anticipated from 

the rescission. 

In response to the previous comment, 

the BLM notes that it is not clear that 

requiring operators to use storage tanks 

for flowback and produced water would 

generate any cost savings. Operators that 

instead use central reservoirs may have 

decided to do so precisely because it is 

the most cost-effective option available 

to them, and requiring them to do 

otherwise may have the unintended 

consequence of increasing costs for 

them. 

One commenter states that an 

unanticipated cost associated with 

rescinding the 2015 rule is related to 

road and infrastructure damage 

associated with trucks hauling large 

quantities of salt water and drilling mud 

at load weights exceeding legal limits by 

35 percent. The commenter offers that 

Texas has incurred more than $2 billion 

debt to repair about 40 percent of their 

damaged roads in absence of having a 

dedicated revenue source to pay for it. 

A commenter states that failure to hold 

businesses accountable for their 

externalities amounts to indirect 

subsidies, which is not fair to producers 

of clean energy who do not receive these 

advantages. The commenter states that 

Federal lands are leased to these 

extractors at prices that are well below 

market values for extraction on private 

lands. The commenter asserts that this 

is another indirect subsidy for the 

extractors and is a bad deal for the 

taxpayers. 

The use of public roads for the 

transport of materials and equipment 

both to and from energy production 

sites, including weight restrictions and 

taxation, is regulated by states and 

localities, and on tribal lands by tribes. 

It was not addressed in the 2015 rule, 

and thus is outside the scope of this 

rulemaking. Operators do need BLM’s 

approval for access roads from public 

roads across public lands to their 

operation sites. 

The BLM also disagrees with the 

assertion that Federal lands are leased at 

‘‘well below market values’’ for oil and 

gas extraction on comparable private 

lands. Although private leases may 

often have higher royalty rates, there are 

often greater regulatory burdens 

uniquely associated with Federal 

leasing requirements. These include 

NEPA reviews for leasing nominations 

and drilling permits, production 


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measurement compliance requirements, 

and other fees and assessments, that 

operators do not encounter to the same 

extent on non-Federal lands. A simple 

comparison of royalty rates between 

Federal and non-Federal oil and gas 

leases is insufficient to support the 

commenter’s conclusion about market 

values. Furthermore, bonus bids, rentals 

and royalties are outside the scope of 

this rulemaking. 

One commenter suggests that 

California’s growing economy is an 

example to counter industry’s claims 

that the 2015 rule and regulations in 

general, unnecessarily encumber energy 

production, constrain economic growth, 

and prevent job creation. 

The commenter does not provide 

evidence that regulation of hydraulic 

fracturing in California specifically has 

an impact on statewide economic 

growth. Also, different states have 

different mixes of industries and 

employers, as well as different geology, 

land ownership patterns, and other 

conditions important to business 

growth. Thus, we have no reasonable 

basis to extrapolate from any state’s 

economic growth to a conclusion that 

the 2015 rule would be a net benefit for 

job creation. 

One commenter suggested it is 

valuable to have a unified standard with 

which to regulate hydraulic fracturing. 

The commenter states that frack hits 

also pose a threat to industry profits, as 

they may also lead to a decrease in well 

production. The commenter states that, 

without firmly regulating irresponsible 

drilling practices, we run the risk of not 

only damaging the ecological health of 

our public lands and water resources, 

but also sabotaging the success of the 

extractive industry. 

As noted in the RIA, the American 

Petroleum Institute does provide 

uniform, national voluntary standards 

for conducting hydraulic fracturing. 

Hydraulic fracturing oversight is and 

will continue to be provided through 

the state laws and regulations detailed 

in API 100–1 and API 100–2. There is 

ample evidence from national 

production data that hydraulic 

fracturing allows oil and gas production 

that would not otherwise be realized. 

Any frack hits on neighboring wells 

from using the technology are 

unfortunate but not nationally 

significant compared to the overall 

industry growth emanating from this 

technology. 

One commenter suggests that, because 

the 2015 rule presented significant 

conflicts with existing Federal and state 

regulations, its adoption held the 

potential to create regulatory 

uncertainty and confusion, increasing 

project costs, thus providing further 

disincentives to operators to develop 

resources on Federal lands that the 

agency manages for the American 

people. 

The BLM does not agree that 

regulations that are largely consistent 

with state rules and industry practices 

necessarily increase uncertainty or 

confusion. The BLM does agree, 

however, that such overlap can make 

such regulations redundant, marginally 

beneficial, and unnecessarily 

burdensome, which is the why it is 

rescinding the 2015 rule. 

Multiple commenters state that 

additional BLM regulation of a process 

already regulated by the states will 

decrease efficiency and increase costs. 

Commenters assert that the BLM does 

not have the staff, the budget, or the 

expertise to process APDs with the same 

efficiency as the states. One commenter 

states that the delay in processing APDs 

by the BLM will result in declining 

production from Federal lands to the 

detriment of the public. Another 

commenter asserts that the BLM 

severely underestimated the cost of the 

2015 rule by not including the cost of 

delays in permit approval. The 

commenter asserts that if APDs are not 

approved in a timely manner, the releasing process will cost additional 

millions. A separate commenter 

highlights that BLM officials conceded 

that, given the combination of increases 

in workload associated with the 

hydraulic fracturing rule and reductions 

in the agency budget, getting the work 

done could be an issue. The commenter 

also notes that, among other problems, 

the BLM recognizes that ‘‘skills gaps’’ 

are a ‘‘program vulnerability’’ for the 

BLM’s existing oil and gas programs. 

The commenter therefore concludes that 

rescission of the 2015 rule is entirely 

appropriate given the admonitions of 

agency leaders that the BLM does not 

have the expertise in the field to 

administer the rule. 

The BLM’s engineers and field 

managers have decades of experience 

exercising oversight of these wells 

during the evolution of hydraulic 

fracturing technology. However, as 

stated in the RIA for this rule, the BLM 

recognizes the potential that the 2015 

rule might pose unnecessary delays and 

implementation costs to the BLM and 

operators. These costs were not 

quantified in the RIA for the 2015 rule. 

The BLM’s staffing levels, budget and 

appropriations are outside the scope of 

this rulemaking. 

One commenter argues that, due to 

North Dakota’s unique history of land 

ownership, it is typical for oil and gas 

spacing units to consist of a 

combination of Federal, state, and 

private mineral ownership. The 

commenter notes that, even in 

circumstances where the Federal 

mineral ownership within a spacing 

unit is small relative to other mineral 

ownership, the 2015 rule would have 

required all the oil and gas operators 

within the unit, as a practical matter, to 

conduct operations in accordance with 

the 2015 rule applicable to the 

development of Federal minerals. The 

commenter asserts that complying with 

the Federal requirements and permitting 

timelines imposed by the 2015 final rule 

will substantially delay operations on 

any spacing units that contain Federal 

minerals and that this delay adversely 

affects the development of all minerals 

within the unit, including state and 

private oil and gas minerals. 

As stated in the RIA for this rule, the 

BLM recognizes the potential that the 

2015 final rule might pose unnecessary 

delays and implementation costs to the 

BLM and operators. We understand the 

commenter’s concerns that many long 

directional wells are completed in many 

tracts, some Federal, and some not 

federal. The operators’ burdens of 

complying with the 2015 rule could 

adversely affect the owners of the nonfederal tracts. Those concerns support 

the BLM’s decision to rescind the 2015 

rule. 

Some commenters state that the 2015 

rule would have represented an 

expansion of the information that oil 

and gas developers are required to 

disclose publicly both before and after 

operations and that, much of this 

information, and particularly 

information regarding local geology and 

the operators’ technical designs for 

extracting resources from that geology, 

is highly proprietary and represents 

economically valuable commercial 

information. The commenters argue that 

the 2015 rule failed to account both for 

the confidential nature of the 

information the rule required to be 

disclosed and the commercial 

consequences of that disclosure. The 

commenters state that, because the 2015 

rule would have required public 

disclosure of highly confidential and 

commercially valuable information, it is 

contrary to Federal public records law 

and its rescission is appropriate. 

Another commenter argued that the 

same requirement of the 2015 rule failed 

to account for service companies 

owning the trade secrets. 

As the commenter notes, by 

rescinding the 2015 rule, the BLM 

would no longer require that the 

operator submit information to the BLM 

and/or FracFocus after the hydraulic 

fracturing operation is complete. As 


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stated in the RIA, the removal of this 

requirement would alleviate some 

administrative burden. At least for 

Federal wells, operators are likely to 

report the chemicals used regardless of 

whether the BLM requires them to or 

not, since almost all states currently 

have chemical disclosure requirements. 

One commenter estimates that the 

2015 rule would have imposed a 

minimum per-well additional cost of 

$1,500 associated with assembling, 

analyzing and adding new information 

to APDs and final reports submitted to 

the BLM, not including the potential 

additional costs associated with legal 

review and requirements for the 

operator to verify and manage 

proprietary information that is claimed 

to be exempt from disclosure. The 

commenter estimates the following 

additional costs of the 2015 rule: 

Potential work stoppage during 

completions if there is a ‘‘false positive’’ 

500 psi increase in annulus pressure 

(assumed $200,000 to $500,000 per day 

standby cost); managing ‘‘recovered 

fluids’’ or produced water by 

constructing and utilizing a central 

storage and treatment facility according 

to rule requirements (estimated 5-year 

net present cost of $2.3 million for a 

lined pit, vs. $23 million for using 500- 

barrel tanks to provide a storage 

capacity of 250,000 barrels); concern 

that a BLM field office could interpret 

the 2015 rule in a more stringent fashion 

than intended, which could lead to a 

slowdown, stoppage, or delay of work, 

or additional costs for specific 

requirements. 

The BLM acknowledges that there are 

several potential compliance costs for 

the 2015 rule that it did not quantify in 

the economic analysis that was prepared 

for that rule. However, because this final 

rule rescinds the 2015 rule, it is not 

necessary to review whether the BLM’s 

cost estimates for that rule were 

adequate, or to determine if the 

commenters’ estimates are appropriate. 

A commenter critiqued the effects of 

the 2015 rule on operators, concluding 

that the rule would have caused 

unintended burdens or delays. 

Because we are rescinding the 2015 

rule, there is no need to analyze the 

commenters’ predictions. 

One commenter asserts that small 

businesses will benefit from this final 

rule because elimination of the 2015 

rule would eliminate any future 

possibility that they must pay the 

compliance costs associated with the 

rule. 

We agree that small businesses would 

benefit to the degree that they are no 

longer subject to the compliance costs 

associated with the 2015 rule. 

One commenter states that a 

comprehensive analysis of the costs the 

2015 rule would have imposed 

demonstrates that costs savings 

resulting from the rule’s rescission are 

likely to exceed $220 million per year 

due to increased administrative costs 

($17.8M), delay costs ($6.7M), 

additional casing costs ($174M), 

additional mechanical integrity testing 

costs ($17M), and additional costs of 

recovered fuel storage ($4.9M). 

The comment has been considered in 

developing the final regulatory impact 

analysis (RIA), but we find that the 

estimated cost savings discussed in the 

RIA are more supportable and are 

adequate for the decision to rescind the 

2015 rule. 

Regional and National Implications 

One commenter states that the 

economic impact of rescinding the 2015 

final rule on the outdoor industry and 

farming should be seriously considered 

when evaluating whether rescinding the 

2015 rule is good for economic growth 

and job creation. The commenter asserts 

that hydraulic fracturing operations 

effectively destroy natural and rural 

areas integral to the outdoor industry. 

The commenter notes that, in 2011, the 

outdoor industry employed 6.1 million 

Americans and Americans spend 

approximately $646 billion annually on 

outdoor recreation. 

There is little to no evidence that 

properly regulated hydraulic fracturing 

operations have a significantly greater 

effect on natural and rural areas integral 

to the outdoor industry compared to the 

conventional oil and gas drilling 

operations that have taken place on 

BLM lands for decades. In its decision 

to rescind the 2015 rule, the BLM 

examined existing state regulations—as 

well as existing Federal regulations 

contained in Onshore Orders 1, 2, and 

7—and determined that they are 

sufficient to ensure that hydraulic 

fracturing operations on Federal lands 

remain properly regulated. 

To the degree that lands open for oil 

and gas development could have an 

opportunity cost in that they could 

otherwise be used for recreational 

activities, the BLM has long 

implemented FLPMA’s policy of 

multiple use that uses the NEPA 

environmental review process to 

determine how best to plan for the 

public’s desires to put the lands to 

competing uses. The BLM’s land use 

planning, however, is beyond the scope 

of this rulemaking. 

Multiple commenters support the 

proposed rescission asserting that the 

2015 rule imposes unnecessary costs, 

hinders energy production, and 

constrains economic growth. 

Commenters argue that the potential 

cost impacts of the 2015 rule on 

exploration and production activities on 

BLM managed lands would greatly 

exceed the estimates that the BLM 

provided in its original RIA. One 

commenter asserts that governments 

should take care to ensure that any 

regulations they issue to ensure safety 

and protect the environment recognize 

the economic importance of, and avoid 

unduly burdening the use of, hydraulic 

fracturing to develop America’s energy 

resources. 

In analyzing the 2015 rule, the BLM 

has reached the same conclusion 

regarding its unnecessary costs and 

impact on energy production and 

economic growth. As a result, the BLM 

has decided to rescind the 2015 rule. 

One commenter stated that BLM’s 

2015 rule would exacerbate the decline 

in oil and natural gas production on 

Federal lands and that this would have 

a severe, negative effect on Wyoming’s 

tax revenue and employment numbers, 

would increase the costs for energy to 

all consumers, and could increase this 

country’s reliance on imports from less 

than friendly nations. 

Regardless of whether the 2015 rule 

would have had a ‘‘severe, negative 

effect’’ on any state, or whether it would 

have caused an increase in reliance 

upon imported oil or gas, the BLM does 

believe that the costs of complying with 

the 2015 rule would be an unnecessary 

burden on industry. This 

Administration’s policy is to increase 

revenues and to reduce reliance on 

imported oil through this and other 

actions to reduce unnecessary burdens 

on energy industries, including oil and 

gas on Federal and Indian lands. Thus, 

we are rescinding the 2015 rule. 

Climate Change 

Some commenters contend that the 

BLM cannot, in evaluating its oversight 

of hydraulic fracturing on the public 

lands, overlook the fact that extracting 

the new oil and gas resources made 

exploitable by modern hydraulic 

fracturing techniques is inconsistent 

with any reasonable likelihood of 

avoiding the most catastrophic effects of 

global climate change. Some 

commenters recommend that the United 

States shift toward alternative forms of 

energy. 

Some commenters assert that the BLM 

must weigh the relative effects on oil 

and gas production, supply, markets, 

and ultimately emissions of its actions 

in regulating public lands hydraulic 

fracturing. The commenters assert that 

this must include an assessment of the 

net emissions consequences of all 


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reasonable alternatives—including 

implementation of the 2015 hydraulic 

fracturing rule, the BLM’s proposed 

rescission of that rule, or an alternative 

rule banning public lands hydraulic 

fracturing. 

Those commenters seek a reduction in 

leasing and production of oil and gas 

from Federal and Indian lands with the 

goal of reducing emissions of 

greenhouse gasses. Issues of land use 

planning, leasing of parcels, and levels 

of production from Federal and Indian 

lands are beyond the scope of this 

rulemaking. Hydraulic fracturing was a 

technology available to operators on 

Federal and Indian lands prior to the 

promulgation of the 2015 rule, it would 

have been available had the 2015 rule 

become effective, and it will be 

available after promulgation of this 

rescission rule. The BLM is committed 

to compliance with NEPA at each stage 

of its decision-making. NEPA does not 

require the BLM to consider banning 

hydraulic fracturing in its analysis of 

this rescission rule. As previously 

stated, the purpose and need for the rule 

is to reduce unnecessary burdens on oil 

and gas production from Federal and 

Indian lands. Furthermore, since 

emission levels from future hydraulic 

fracturing operations are necessarily 

speculative (because they depend upon 

geologic, technical, and economic 

variables, plus the potential substitution 

of sources for oil and gas), a comparison 

of ‘‘net emissions consequences’’ would 

not provide useful information to the 

decision-maker or the public. 

The BLM has not made a change from 

the 2017 proposed rule to this final rule 

in response to those comments. 

Recommendations 

Multiple commenters suggest the 

BLM should conduct additional 

research regarding the impacts of 

hydraulic fracturing and of rescinding 

the 2015 rule, including the impacts of 

hydraulic fracturing on drinking water 

resources and human health. Some 

commenters assert that the BLM must 

thoroughly study the effects of repealing 

the rule, including consideration of new 

circumstances, studies, and information 

developed since the rule was adopted. 

The commenters assert that this should 

include, for example, consideration of 

recent information regarding 

connections between disposal of 

drilling-related waste and earthquakes, 

according to some commenters. 

Moreover, the commenters state that the 

BLM must consider the likelihood that 

the proposed deregulation will lead to a 

significant expansion in poorly 

controlled oil and gas drilling and 

hydraulic fracturing and the 

consequences for global climate change. 

Some commenters suggest that the BLM 

should consider and adopt a rule that 

protects public lands, public health, and 

the climate by banning hydraulic 

fracturing altogether on public lands. 

In response to the previous 

comments, the BLM notes that, in 

December 2016, EPA completed its 

nationwide study of hydraulic 

fracturing. U.S. EPA, Hydraulic 

Fracturing for Oil and Gas: Impacts from 

the Hydraulic Fracturing Water Cycle on 

Drinking Water Resources in the United 

States (Final Report), EPA/600/R–16/ 

236F (available at 2016https://

cfpub.epa.gov/ncea/hfstudy/ 

recordisplay.cfm?deid=332990). The 

BLM has considered the findings in that 

report. That report demonstrated that, 

like most industrial processes, hydraulic 

fracturing has the potential to cause the 

release of pollutants into the 

environment, including groundwater 

resources. A logical conclusion is that 

hydraulic fracturing activities should be 

regulated to control those risks. It is not 

clear, however, that the 2015 rule was 

the best or only way to regulate 

hydraulic fracturing on Federal and 

Indian lands. Commenters have failed to 

provide facts demonstrating that the 

BLM needs to conduct another study a 

year after EPA’s report. Risks of induced 

seismicity from hydraulic fracturing 

operations are beyond the scope of this 

rulemaking. The USGS studies both 

natural and induced seismicity. Several 

USGS publications are listed at https:// 

earthquake.usgs.gov/research/induced/ 

references.php. Those studies show that 

induced seismicity from hydraulic 

fracturing operations is uncommon, and 

seems to occur mostly in areas with 

small percentages of federally owned 

minerals. More common is seismicity 

induced by the injection of waste fluids 

for disposal. Those disposal wells, 

however, are regulated by states, tribes 

and the EPA under the Safe Drinking 

Water Act, and are beyond the scope of 

this rulemaking. 

This final rule will not lead to poorly 

regulated drilling of oil and gas wells on 

Federal and Indian lands. Drilling 

operations will continue to be subject to 

the BLM’s regulations, including 

Onshore Oil and Gas Order No. 2, (53 

FR 46798, 1988), state regulations on 

Federal land, and tribal regulations on 

tribal lands. We do not believe that 

hydraulic fracturing operations will be 

poorly regulated under the present rule, 

with states and tribes taking the lead for 

regulating most hydraulic fracturing 

activities. 

As previously explained, we do not 

believe it is in the national interest to 

ban hydraulic fracturing on Federal and 

Indian lands. Hydraulic fracturing 

activities can be conducted in ways that 

reduce risks to the environment while 

providing the benefits of domestically 

produced oil and gas, including jobs. 

Furthermore, a ban on hydraulic 

fracturing on Federal and Indian lands 

would most likely cause production to 

move to areas that are not subject to the 

BLM’s regulations, and have no impact 

on emissions. 

One commenter asserts that the 2015 

rule provides for a ‘‘type well’’ to be 

used for an entire field to satisfy the prefracturing approval requirements. The 

commenter recommends that the 2015 

rule should be rescinded in its entirety 

or expanded to allow a type well to 

cover an entire county or basin if the 

geology is substantially similar. 

The commenter is mistaken. The 2015 

rule does not mention a ‘‘type well.’’ 

The present rule rescinds the 2015 rule 

in its entirety. 

The BLM has not made a change from 

the 2017 proposed rule to this final rule 

based on these commenters’ 

recommendations. 

Discussion of the Final Rule 

As previously discussed in this 

preamble, the BLM is revising 43 CFR 

part 3160 to rescind the 2015 rule. The 

regulatory amendments in this final rule 

are identical to those in the proposed 

rule, except that the phrase ‘‘perform 

nonroutine fracturing jobs’’ has been 

removed from the regulations at 43 CFR 

3162.3–2(a). This final rule restores the 

regulations in part 3160 of the CFR to 

exactly as they were before the 2015 

rule, except for changes to those 

regulations that were made by other 

rules published between March 26, 2015 

(the date of publication of the 2015 final 

rule) and now, and the phrase ‘‘perform 

nonroutine fracturing jobs,’’ which is 

not restored to the list of subsequent 

operations requiring prior approval in 

section 3162.3–2(a). None of the 

amendments to part 3160 by other rules 

are relevant to this rulemaking. See, e.g., 

82 FR 83008 (2016). The following 

section-by-section analysis discusses 

returning to the pre-2015 rule 

regulations. 

Section 3160.0–3 Authority 

The BLM amends § 3160.0–3 by 

removing the reference to the Federal 

Land Policy and Management Act of 

1976, as amended (43 U.S.C. 1701). The 

2015 rule added this reference as an 

administrative matter. This final rule 

returns this section to the language it 

contained before the 2015 rule and does 

not have any substantive impact. 


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Section 3160.0–5 Definitions 

The BLM amends this section by 

removing several terms that were added 

by the 2015 rule and by restoring the 

definition of ‘‘fresh water’’ that the 2015 

rule removed. This final rule removes 

the definitions of ‘‘annulus,’’ 

‘‘bradenhead,’’ ‘‘Cement Evaluation Log 

(CEL),’’ ‘‘confining zone,’’ ‘‘hydraulic 

fracturing,’’ ‘‘hydraulic fracturing 

fluid,’’ ‘‘isolating or to isolate,’’ ‘‘master 

hydraulic fracturing plan,’’ ‘‘proppant,’’ 

and ‘‘usable water.’’ The 2015 rule used 

those terms in the operating regulations. 

Since those operating regulations are 

rescinded, these terms are no longer 

necessary in this definitions section. 

This final rule restores the previous 

definition of ‘‘fresh water’’ to the 

regulations. 

Section 3162.3–2 Subsequent Well 

Operations 

This final rule amends § 3162.3–2 by 

making non-substantive changes to 

paragraph (a), which include replacing 

the word ‘‘must’’ with the word ‘‘shall,’’ 

replacing the word ‘‘combine’’ with the 

word ‘‘commingling,’’ replacing the 

word ‘‘convert’’ with the word 

‘‘conversion,’’ and removing the 

language from the first sentence of 

paragraph (a) that the 2015 rule only 

added to more fully describe Form 

3160–5. 

In response to comments received, 

§ 3162.3–2(a) of this final rule does not 

include the requirement to obtain prior 

approval to ‘‘perform nonroutine 

fracturing jobs.’’ As previously 

discussed in this preamble, as a result 

of considerable advances in oil and gas 

development technology in the last 20 

years, hydraulic fracturing practices that 

would have been considered 

‘‘nonroutine’’ when the BLM originally 

issued the regulations requiring prior 

approval for ‘‘nonroutine fracturing 

jobs’’ are now commonly employed and 

considered ‘‘routine.’’ See the ‘‘Rule 

Authorities’’ discussion of comments for 

more information about this revision. 

The final rule makes non-substantive 

changes to paragraph (b) of § 3162.3–2, 

which include replacing ‘‘using a 

Sundry Notice and Report on Well 

(Form 3160–5)’’ with ‘‘on Form 3160– 

5.’’ 

The final rule restores ‘‘routine 

fracturing or’’ to paragraph (b) of 

§ 3162.3–2. The 2015 rule removed 

those words from the list because it 

amended § 3162.3–3 to include a 

detailed listing of requirements for 

hydraulic fracturing operations to be 

approved by the authorized officer. This 

final rule removes that requirement 

from § 3163.3–3, which is discussed 

below. 

Section 3162.3–3 Other Lease 

Operations 

The BLM revises this section by 

removing language that was added by 

the 2015 rule and returning this rule to 

the exact language it contained 

previously. The 2015 rule made 

substantial changes to this section and 

revised the title to read as ‘‘Subsequent 

well operations; Hydraulic fracturing.’’ 

Paragraph (a) of this section in the 

2015 rule, as reflected in the 2015 

edition of the CFR, includes an 

implementation schedule that the BLM 

would have followed to phase in the 

requirements of the rule, had the rule 

gone into effect. Paragraph (b) of this 

section contains the performance 

standard referencing § 3162.5–2(d). 

Paragraph (c) of this section would have 

required prior approval of hydraulic 

fracturing operations. Paragraph (d) of 

this section lists the information that an 

operator would have been required to 

include in a request for approval of 

hydraulic fracturing. Paragraph (e) of 

this section specifies how an operator 

would have had to monitor and verify 

cementing operations prior to hydraulic 

fracturing. Paragraph (f) of this section 

would have required mechanical 

integrity testing of the wellbore prior to 

hydraulic fracturing. Paragraph (g) of 

this section would have required 

monitoring and recording of annulus 

pressure during hydraulic fracturing. 

Paragraph (h) of this section specifies 

the requirements that would have 

applied for managing recovered fluids 

until approval of a permanent water 

disposal plan. Paragraph (i) of this 

section specifies information that an 

operator would have been required to 

provide to the authorized officer after 

completion of hydraulic fracturing 

operations. Paragraph (j) of this section 

specifies how an operator could have 

withheld information from the BLM and 

the public about the chemicals used in 

a hydraulic fracturing operation. 

Paragraph (k) of this section describes 

how the BLM would have approved 

variances from the requirements of the 

2015 final rule. 

For the reasons discussed earlier in 

this preamble, the BLM believes this 

section of the 2015 rule is unnecessarily 

duplicative and would impose costs that 

would not be clearly exceeded by its 

benefits and, therefore, removes these 

2015 rule provisions and restores the 

previous language of the section. 

Section 3162.5–2 Control of Wells 

The BLM amends paragraph (d) of 

this section by restoring the term ‘‘fresh 

water-bearing’’ and the phrase 

‘‘containing 5,000 ppm or less of 

dissolved solids.’’ The final rule also 

restores other non-substantive 

provisions that appeared in the previous 

version of the regulations. 

Good Cause for Immediate Effectiveness 

The APA normally requires 

regulations to become effective no 

sooner than 30 days after publication in 

the Federal Register (5 U.S.C. 553(d)). 

Nonetheless, the APA allows 

regulations to go into effect immediately 

upon publication when ‘‘a substantive 

rule grants or recognizes an exemption 

or relieves a restriction’’ (5 U.S.C. 

553(d)(1)). As explained in this 

preamble, this final rule relieves oil and 

gas operators on Federal and Indian 

lands from the numerous restrictions 

and burdens that would be imposed if 

the 2015 rule were to go into effect. 

The primary purpose of the delayed 

effective date requirement in section 

553(d) is to give people a reasonable 

time to prepare to comply with or take 

other action with respect to the rule (See 

Attorney General’s Manual on the 

Administrative Procedure Act 37 

(1947)). As explained elsewhere in this 

preamble, the 2015 rule has never been 

operational. Therefore, no one requires 

time to conform their conduct to avoid 

the legal consequences of ‘‘violating’’ 

the regulations that would remain in 

effect after rescission of the 2015 rule. 

Even if persons not subject to the 2015 

rule could claim a benefit from a 30-day 

effective date, that would not prevent 

this final rule from becoming effective 

immediately upon publication 

(Independent U.S. Tanker Owners 

Comm. v. Skinner, 884 F.2d 587, 591– 

92 (D.C. Cir. 1989), cert. denied, 495 

U.S. 904 (1990)). 

The APA also allows regulations to go 

into effect immediately upon 

publication for ‘‘good cause’’ (5 U.S.C. 

553(d)(3)). Application of the good 

cause exception requires an ‘‘ ‘urgency 

of conditions coupled with 

demonstrated and unavoidable 

limitations of time,’ ’’ with the ‘‘primary 

consideration . . . be[ing] the 

‘convenience or necessity of the people 

affected’ ’’ (United States v. Gavrilovic, 

551 F.2d 1099, 1104 (8th Cir. 1977) 

(quoting 92 Cong. Rec. 5650–51 (1946) 

(remarks of Cong. Walter))). In 

determining whether to invoke the good 

cause exception, an ‘‘agency is required 

to balance the [public] necessity for 

immediate implementation against 

principles of fundamental fairness 

which require that all affected persons 

be afforded a reasonable time to prepare 

for the effective date of its ruling’’ 

(Gavrilovic, 551 F.2d at 1105). 


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The current posture of the litigation 

related to the 2015 rule makes it 

possible that the 2015 rule could 

become operational within 30 days of 

the publication of this final rule. Were 

that to happen, oil and gas operators— 

the persons most affected by this final 

rule—would have to go to significant 

expense to comply with the 2015 rule, 

even though that rule would be 

rescinded in a matter of days upon the 

effective date of this final rule. Those 

significant burdens would not be offset 

by the de minimus environmental 

benefits of a few days of compliance 

with the 2015 rule. Requiring oil and 

gas operators to incur such significant 

expense to comply with a rule that will 

be rescinded in a matter of days would 

be fundamentally unfair. Thus, there are 

urgent conditions, unavoidable 

limitations of time, and a risk to the 

convenience or necessity of the people 

affected. 

For both of these reasons, the BLM 

finds that there is good cause for this 

final rule to be effective upon 

publication in the Federal Register. 

III. Procedural Matters 

Regulatory Planning and Review 

(Executive Orders 12866, 13563, and 

13771) 

Executive Order 12866 provides that 

the Office of Information and Regulatory 

Affairs in the Office of Management and 

Budget will review all significant rules. 

The Office of Information and 

Regulatory Affairs has determined that 

this rule is significant because it will 

raise novel legal or policy issues. 

Executive Order 13563 reaffirms the 

principles of Executive Order 12866 

while calling for improvements in the 

Nation’s regulatory system to promote 

predictability, to reduce uncertainty, 

and to use the best, most innovative, 

and least burdensome tools for 

achieving regulatory ends. The 

Executive Order directs agencies to 

consider regulatory approaches that 

reduce burdens and maintain flexibility 

and freedom of choice for the public 

where these approaches are relevant, 

feasible, and consistent with regulatory 

objectives. E.O. 13563 emphasizes 

further that regulations must be based 

on the best available science and that 

the rulemaking process must allow for 

public participation and an open 

exchange of ideas. We have developed 

this rule in a manner consistent with 

these requirements. 

Executive Order 13771 (82 FR 9339, 

Feb. 3, 2017) requires Federal agencies 

to take proactive measures to reduce the 

costs associated with complying with 

Federal regulations. Consistent with 

Executive Order 13771, we have 

estimated the cost savings for this final 

rule to be $14—$34 million per year 

from the 2015 rule. Therefore, this final 

rule is expected to be a deregulatory 

action under Executive Order 13771. 

Regulatory Flexibility Act 

The BLM certifies that this rule will 

not have a significant economic effect 

on a substantial number of small entities 

pursuant to 5 U.S.C. 605(b). The 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) (RFA) generally requires that 

Federal agencies prepare a regulatory 

flexibility analysis for rules subject to 

the notice and comment rulemaking 

requirements under the Administrative 

Procedure Act (5 U.S.C. 500 et seq.), if 

the rule would have a significant 

economic impact, either detrimental or 

beneficial, on a substantial number of 

small entities (See 5 U.S.C. 601—612). 

Congress enacted the RFA to ensure that 

government regulations do not 

unnecessarily or disproportionately 

burden small entities. Small entities 

include small businesses, small 

governmental jurisdictions, and small 

not-for-profit enterprises. 

The BLM reviewed the Small 

Business Administration (SBA) size 

standards for small businesses and the 

number of entities fitting those size 

standards as reported by the U.S. 

Census Bureau in the Economic Census. 

The BLM concluded that the vast 

majority of entities operating in the 

relevant sectors are small businesses as 

defined by the SBA. As such, the final 

rule will likely affect a substantial 

number of small entities. 

Although the final rule will likely 

affect a substantial number of small 

entities, the BLM does not believe that 

these effects would be economically 

significant. This final rule is a 

deregulatory action that will remove all 

of the requirements placed on operators 

by the 2015 rule. Operators will not 

have to undertake the compliance 

activities, either operational or 

administrative, that are outlined in the 

2015 rule, except to the extent the 

activities are required by state or tribal 

law, or by other pre-existing BLM 

regulations. 

The BLM conducted an economic 

analysis which estimates that the 

average reduction in compliance costs 

will be a small fraction of a percent of 

the profit margin for small companies, 

which is not a large enough impact to 

be considered significant. For more 

detailed information, see section 5.3 of 

the RIA prepared for this final rule. The 

final RIA has been posted in the docket 

for the final rule on the Federal 

eRulemaking Portal: http://

www.regulations.gov. 

Small Business Regulatory Enforcement 

Fairness Act (SBREFA) 

This rule is not a major rule under 5 

U.S.C. 804(2), the Small Business 

Regulatory Enforcement Fairness Act. 

This rule will not cause a major increase 

in costs or prices for consumers, 

individual industries, Federal, state, or 

local government agencies, or 

geographic regions. The rule will not 

have an annual effect on the economy 

of $100 million or more. 

This rule will not cause a major 

increase in costs or prices for 

consumers, individual industries, 

Federal, state, or local government 

agencies, or geographic regions. 

This rule will not have significant 

adverse effects on competition, 

employment, investment, productivity, 

innovation, or the ability of U.S.-based 

enterprises to compete with foreignbased enterprises. 

This final rule is a deregulatory action 

that removes all of the requirements 

placed on operators by the 2015 rule. 

Operators will not have to undertake the 

compliance activities, either operational 

or administrative, that would have been 

required solely by the 2015 rule. The 

screening analysis conducted by the 

BLM estimates the average reduction in 

compliance costs will be a small 

fraction of a percent of the profit margin 

for companies, which is not large 

enough to: Have significant adverse 

effects on competition, employment, 

investment, productivity, innovation, or 

the ability of U.S.-based enterprises to 

compete with foreign-based enterprises; 

cause a major increase in costs or prices 

for consumers, individual industries, 

Federal, state, or local government 

agencies, or geographic regions; or have 

an annual effect on the economy of $100 

million or more. 

Unfunded Mandates Reform Act 

This rule does not impose an 

unfunded mandate on state, local, or 

tribal governments, or the private sector 

of more than $100 million per year. The 

rule does not have a significant or 

unique effect on State, local, or tribal 

governments or the private sector. A 

statement containing the information 

required by the Unfunded Mandates 

Reform Act (2 U.S.C. 1531 et seq.) 

(UMRA) is not required. This rule is 

also not subject to the requirements of 

section 203 of UMRA because it 

contains no regulatory requirements that 

might significantly or uniquely affect 

small governments, because it contains 

no requirements that apply to such 


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governments, nor does it impose 

obligations upon them. 

Takings (EO 12630) 

This rule does not affect a taking of 

private property or otherwise have 

taking implications under Executive 

Order 12630. A takings implication 

assessment is not required. This rule is 

a deregulatory action that removes all of 

the requirements placed on operators 

solely by the 2015 rule and therefore 

will impact some operational and 

administrative requirements on Federal 

and Indian lands. All such operations 

are subject to lease terms which 

expressly require that subsequent lease 

activities be conducted in compliance 

with subsequently adopted Federal laws 

and regulations. This rule conforms to 

the terms of those leases and applicable 

statutes and, as such, the rule is not a 

government action capable of interfering 

with constitutionally protected property 

rights. Therefore, the BLM has 

determined that the final rule will not 

cause a taking of private property or 

require further discussion of takings 

implications under Executive Order 

12630. 

Federalism (E.O. 13132) 

Under the criteria in section 1 of 

Executive Order 13132, this rule does 

not have sufficient federalism 

implications to warrant the preparation 

of a federalism summary impact 

statement. A federalism summary 

impact statement is not required. The 

final rule will not have a substantial 

direct effect on the states, on the 

relationship between the Federal 

Government and the states, or on the 

distribution of power and 

responsibilities among the levels of 

government. It will not apply to states 

or local governments or state or local 

governmental entities. The rule will 

affect the relationship between 

operators, lessees, and the BLM, but it 

does not directly impact the states. 

Therefore, in accordance with Executive 

Order 13132, the BLM has determined 

that this final rule does not have 

sufficient federalism implications to 

warrant preparation of a federalism 

assessment. 

Civil Justice Reform (E.O. 12988) 

This rule complies with the 

requirements of Executive Order 12988. 

More specifically, this rule meets the 

criteria of section 3(a), which requires 

agencies to review all regulations to 

eliminate errors and ambiguity and to 

write all regulations to minimize 

litigation. This rule also meets the 

criteria of section 3(b)(2), which 

requires agencies to write all regulations 

in clear language with clear legal 

standards. 

Consultation With Indian tribes (E.O. 

13175 and Departmental Policy) 

The Department strives to strengthen 

its government-to-government 

relationship with Indian tribes through 

a commitment to consultation with 

Indian tribes and recognition of their 

right to self-governance and tribal 

sovereignty. The BLM has evaluated this 

final rule in accordance with the 

Department’s consultation policies and 

under the criteria in Executive Order 

13175. The BLM authorizes oil and gas 

operations that are proposed on Indian 

onshore oil and gas leases. Therefore, 

the rule has the potential to affect 

Indian tribes and tribal lands. 

Potentially affected tribes were 

provided an opportunity to provide 

feedback and consult with the BLM 

regarding this rule. The BLM has fully 

considered tribal views made known to 

us in preparing this final rule. 

Paperwork Reduction Act (44 U.S.C. 

3501 et seq.) 

The Paperwork Reduction Act (PRA) 

(44 U.S.C. 3501–3521) provides that an 

agency may not conduct or sponsor, and 

a person is not required to respond to, 

a collection of information, unless it 

displays a currently valid control 

number issued by the Office of 

Management and Budget (OMB). 

Collections of information include 

requests and requirements that an 

individual, partnership, or corporation 

obtain information, and report it to a 

Federal agency. See 44 U.S.C. 3502(3); 

5 CFR 1320.3(c) and (k). 

This rule rescinds information 

collection activities that would have 

required approval by the OMB under 

the PRA had the 2015 rule become 

effective. OMB pre-approved those 

activities and assigned control number 

1004–0203 to them, but the control 

number was not activated. In view of 

the rescission, there will be no need to 

continue the information collection 

activities that the OMB has preapproved under control number 1004– 

0203. Accordingly, the BLM will request 

that the OMB discontinue that control 

number after the effective date of this 

final rule. 

In accordance with this final rule, the 

BLM will include in its request for 

renewal of control number 1004–0137 

(expires January 31, 2018) that 

nonroutine fracturing jobs be removed 

from the information collection activity 

for subsequent well operations, at 43 

CFR 3162.3–2. 

National Environmental Policy Act 

The BLM prepared an environmental 

assessment (EA) to document its 

examination of the potential 

environmental impacts that may occur 

as a result of this final rule. The BLM 

has determined that this rule does not 

constitute a major Federal action 

significantly affecting the quality of the 

human environment. A detailed 

statement under the National 

Environmental Policy Act of 1969 is not 

required because we reached a Finding 

of No Significant Impact (FONSI) for 

this final rule. 

The final EA and FONSI that were 

prepared for this final rule have been 

placed in the file for the BLM’s 

Administrative Record for the final rule 

at the BLM’s 20 M Street address 

specified in the ADDRESSES section. The 

final EA and FONSI have also been 

posted in the docket for the final rule on 

the Federal eRulemaking Portal: http:// 

www.regulations.gov. The BLM invites 

the public to review these documents. 

Effects on the Energy Supply (E.O. 

13211) 

This final rule is not a significant 

energy action under the definition in 

Executive Order 13211. A statement of 

Energy Effects is not required. Section 

4(b) of Executive Order 13211 defines a 

‘‘significant energy action’’ as ‘‘any 

action by an agency (normally 

published in the Federal Register) that 

promulgates or is expected to lead to the 

promulgation of a final rule or 

regulation, including notices of inquiry, 

advance notices of rulemaking, and 

notices of rulemaking: (1)(i) That is a 

significant regulatory action under 

Executive Order 12866 or any successor 

order, and (ii) is likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy; or (2) that 

is designated by the Administrator of 

[OIRA] as a significant energy action.’’ 

Since this final rule is a deregulatory 

action and would reduce compliance 

costs, it is likely to have a positive 

effect, if any, on the supply, 

distribution, or use of energy, and not a 

significant adverse effect. As such, we 

do not consider the final rule to be a 

‘‘significant energy action’’ as defined in 

Executive Order 13211. 

Authors 

The principal author(s) of this rule are 

Justin Abernathy, Senior Policy Analyst, 

BLM, Washington Office; Michael Ford, 

Economist, BLM, Washington Office; 

James Tichenor, Economist, BLM, 

Washington Office; Ross Klein, (Acting) 

Natural Resource Specialist, BLM, 

Washington Office; Subijoy Dutta, Lead 


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Federal Register / Vol. 82, No. 249 / Friday, December 29, 2017 / Rules and Regulations 61949 

Petroleum Engineer, BLM, Washington 

Office; Jeffrey Prude, Petroleum 

Engineer/Oil and Gas Program Lead, 

BLM, Bakersfield Field Office; and 

James Annable, Petroleum Engineer, 

BLM, Royal Gorge Field Office; assisted 

by Charles Yudson of the BLM’s 

Division of Regulatory Affairs and by 

Richard McNeer and Ryan Sklar of the 

Department of the Interior’s Office of the 

Solicitor. 

Dated: December 22, 2017. 

Joseph Balash, 

Assistant Secretary—Land and Minerals 

Management, U.S. Department of the Interior. 

List of Subjects in 43 CFR Part 3160 

Administrative practice and 

procedure, Government contracts, 

Indians-lands, Mineral royalties, Oil and 

gas exploration, Penalties, Public landsmineral resources, Reporting and 

recordkeeping requirements. 

For the reasons stated in the 

preamble, and under the authorities 

stated below, the Bureau of Land 

Management amends 43 CFR part 3160 

as follows: 

PART 3160—ONSHORE OIL AND GAS 

OPERATIONS 

■ 1. The authority citation for part 3160 

continues to read as follows: 

Authority: 25 U.S.C. 396d and 2107; 30 

U.S.C. 189, 306, 359, and 1751; 43 U.S.C. 

1732(b), 1733, and 1740; and Sec. 107, Pub. 

L. 114–74, 129 Stat. 599, unless otherwise 

noted. 

Subpart 3160—Onshore Oil and Gas 

Operations: General 

■ 2. Revise § 3160.0–3 to read as 

follows: 

§ 3160.0–3 Authority. 

The Mineral Leasing Act, as amended 

and supplemented (30 U.S.C. 181 et 

seq.), the Act of May 21, 1930 (30 U.S.C. 

301–306), the Mineral Leasing Act for 

Acquired Lands, as amended (30 U.S.C. 

351–359), the Act of March 3, 1909, as 

amended (25 U.S.C 396), the Act of May 

11, 1938, as amended (25 U.S.C. 396a396q), the Act of February 28, 1891, as 

amended (25 U.S.C. 397), the Act of 

May 29, 1924 (25 U.S.C. 398), the Act 

of March 3, 1927 (25 U.S.C. 398a-398e), 

the Act of June 30, 1919, as amended 

(25 U.S.C. 399), R.S. § 441 (43 U.S.C. 

1457), the Attorney General’s Opinion 

of April 2, 1941 (40 Op. Atty. Gen. 41), 

the Federal Property and Administrative 

Services Act of 1949, as amended (40 

U.S.C 471 et seq.), the National 

Environmental Policy Act of 1969, as 

amended (40 U.S.C. 4321 et seq.), the 

Act of December 12, 1980 (94 Stat. 

2964), the Combined Hydrocarbon 

Leasing Act of 1981 (95 Stat. 1070), the 

Federal Oil and Gas Royalty 

Management Act of 1982 (30 U.S.C. 

1701), the Indian Mineral Development 

Act of 1982 (25 U.S.C. 2102), and Order 

Number 3087, dated December 3, 1982, 

as amended on February 7, 1983 (48 FR 

8983) under which the Secretary 

consolidated and transferred the 

onshore minerals management functions 

of the Department, except mineral 

revenue functions and the responsibility 

for leasing of restricted Indian lands, to 

the Bureau of Land Management. 

■ 3. Amend § 3160.0–5 by removing the 

definitions of ‘‘Annulus,’’ 

‘‘Bradenhead,’’ ‘‘Cement Evaluation Log 

(CEL),’’ ‘‘Confining zone,’’ ‘‘Hydraulic 

fracturing,’’ ‘‘Hydraulic fracturing 

fluid,’’ ‘‘Isolating or to isolate,’’ ‘‘Master 

hydraulic fracturing plan,’’ ‘‘Proppant,’’ 

and ‘‘Usable water,’’ and by adding the 

definition of ‘‘Fresh water’’ in 

alphabetical order to read as follows: 

§ 3160.0–5 Definitions. 

* * * * * 

Fresh water means water containing 

not more than 1,000 ppm of total 

dissolved solids, provided that such 

water does not contain objectionable 

levels of any constituent that is toxic to 

animal, plant or aquatic life, unless 

otherwise specified in applicable 

notices or orders. 

* * * * * 

Subpart 3162—Requirements for 

Operating Rights Owners and 

Operators 

■ 4. Amend § 3162.3–2 by revising the 

first sentence of paragraph (a) and 

revising paragraph (b) to read as follows: 

§ 3162.3–2 Subsequent well operations. 

(a) A proposal for further well 

operations shall be submitted by the 

operator on Form 3160–5 for approval 

by the authorized officer prior to 

commencing operations to redrill, 

deepen, perform casing repairs, plugback, alter casing, recomplete in a 

different interval, perform water shut 

off, commingling production between 

intervals and/or conversion to injection. 

* * * 

(b) Unless additional surface 

disturbance is involved and if the 

operations conform to the standard of 

prudent operating practice, prior 

approval is not required for routine 

fracturing or acidizing jobs, or 

recompletion in the same interval; 

however, a subsequent report on these 

operations must be filed on Form 

3160–5. 

* * * * * 

■ 5. Revise § 3162.3–3 to read as 

follows: 

§ 3162.3–3 Other lease operations. 

Prior to commencing any operation on 

the leasehold which will result in 

additional surface disturbance, other 

than those authorized under § 3162.3–1 

or § 3162.3–2, the operator shall submit 

a proposal on Form 3160–5 to the 

authorized officer for approval. The 

proposal shall include a surface use 

plan of operations. 

■ 6. Amend § 3162.5–2 by revising the 

heading and first sentence of paragraph 

(d) to read as follows: 

§ 3162.5 -2 Control of wells. 

* * * * * 

(d) Protection of fresh water and other 

minerals. The operator shall isolate 

freshwater-bearing and other usable 

water containing 5,000 ppm or less of 

dissolved solids and other mineralbearing formations and protect them 

from contamination. * * * 

[FR Doc. 2017–28211 Filed 12–28–17; 8:45 am] 

BILLING CODE 4310–84–P 


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