Leasing on National Forest System lands requires coordination between the BLM and the Forest Service throughout the leasing process. The BLM and the Forest Service share the responsibility over oil and gas leasing on National Forest System lands.[1] The BLM issues the oil and gas leases on National Forest System lands with the consent of the Forest Service.[2] Generally, the Forest Service manages the surface of the lands, while the BLM manages the subsurface, and the agencies work together to develop the permitting conditions under their separate management authorities.[3]
How do I get an oil and gas lease and drill on National Forest Service lands?
Obtaining an oil and gas lease on National Forest Service lands requires the consideration of multiple applicable laws as well as coordination between the two federal agencies. First, the Forest Service must make a determination regarding which federal lands are available for leasing. Next, a prospective lessee must send an informal request to the BLM for a specific parcel to be offered for sale. Finally, if the Forest Service consents to the sale and the BLM determines that the parcel is available and suitable for leasing, the parcel is included by the BLM in a notice of competitive oil and gas lease sale in the same manner as parcels located outside a national forest. Assuming that the parcel is sold at a competitive lease sale and the BLM issues the lease, the lessee must obtain an approved application for a drilling permit and surface use plan. Drilling can begin once the BLM and the Forest Service have issued the necessary approvals and permits.[4]
- The Forest Service’s Availability Decisions
The Forest Service makes availability decisions identifying minerals on National Forest System lands that are available for leasing. These decisions are made through an appropriate National Environmental Policy Act (“NEPA”) process in cooperation with the BLM.[5] The Forest Service must exclude from the analysis lands that have been withdrawn from mineral leasing, lands recommended for wilderness designation, and lands designated as wilderness study areas (unless oil and gas leasing has been specifically allowed).[6]
As part of the leasing analysis, the Forest Service identifies on maps those areas that will be either open to development under the conditions of standard oil and gas leases, open to development under lease stipulations (e.g., conditions of surface occupancy), or closed to leasing.[7] The Forest Service promptly notifies the BLM of its availability decision, who adopts the Forest Service’s leasing analysis and decision.[8] In offering the parcel for sale, the BLM includes any lease stipulations that the Forest Service notified it were necessary, as well as any additional lease stipulations that the BLM, as manager of the subsurface, determined are necessary.
- Expression of Interest to the BLM
A prospective lessee will submit an expression of interest (“EOI”) to the BLM. An EOI is an informal request that identifies land that the BLM should consider offering for oil and gas competitive lease sales.[9] The BLM must obtain the consent of the Forest Service to offer the specific lands for leasing, which will be subject to the NEPA document, the land and resource management plan, and the Forest Service’s conditions of surface occupancy.[10] The BLM will review the nominated lands to ensure that they are “available, eligible, and suitable for leasing,” and may also conduct an analysis “to identify conditions or restrictions on oil and gas activities to protect the environment” before offering the lands for sale.[11]
- Leasing and Development
In order to develop an oil and gas lease on National Forest System lands, a lessee must submit an Application for Permit to Drill (“APD”) to the BLM, who forwards all APDs, including the Surface Use Plan of Operations (“SUPOs”), and Notices of Staking (“NOSs”) to the Forest Service for approval.[12] Both the BLM and the Forest Service post a 30-day public notice of all APDs and NOSs.[13]
“All SUPOs are subject to a level of NEPA analysis and documentation, including public involvement . . . .”[14] In addition, the SUPOs must comply with all other applicable laws, including the Endangered Species Act, National Historic Preservation Act, and Clean Water Act.[15] After reviewing the SUPO, the Forest Service will notify the operator and the BLM of its decision either approving the SUPO, approving the SUPO with conditions, or disapproving the SUPO, and will provide public notice of the decision.[16] The BLM reviews the APD for potential subsurface impacts, and, after receiving the approved SUPO from the Forest Service, issues the final approved APD.[17] Once all approvals and permits have been received, drilling can begin.[18]
[1] Memorandum of Understanding Between United States Department of the Interior Bureau of Land Management and United States Department of Agriculture Forest Service, at 3 (eff. Apr. 14, 2006), https://www.fs.fed.us/geology/MOU_BLM_Oil_Gas.pdf (“MOU”).
[2] 30 U.S.C. § 226(h).
[3] MOU, at 3–5.
[4] U.S. Forest Serv., Stages of Oil & Gas Exploration and Development on National Forest System Lands, at 2 (Dec. 12, 2005), https://www.fs.fed.us/emc/nepa/oged/includes/stages_summary_final.pdf.
[5] 36 C.F.R. § 228.102(a)–(b); MOU, at 8.
[6] 36 C.F.R. § 228.102(b).
[7] Id. § 228.102(c).
[8] Id. § 228.102(d); MOU, at 9.
[9] U.S. Dep’t of the Interior, National Fluids Lease Sale System, https://nflss.blm.gov/importantinfo (last visited Apr. 25, 2018).
[10] 36 C.F.R. § 228.102(e).
[11] U.S. Dep’t of the Interior, National Fluids Lease Sale System.
[12] MOU, at 12.
[13] Id.; see 30 U.S.C. § 226(f).
[14] U.S. Forest Serv., Stages of Oil & Gas Exploration and Development on National Forest System Lands, at 1.
[15] Id.; see also 36 C.F.R. §§ 228.104(b)(1), 228.108.
[16] 36 C.F.R. § 107(b)(2).
[17] MOU, at 14–15; U.S. Forest Serv. Wayne National Forest Oil & Gas Leasing Process, https://www.fs.usda.gov/detail/custergallatin/landmanagement/resourcemanagement/?cid=fseprd516706 (last visited Apr. 25, 2018).
[18] U.S. Forest Serv., Stages of Oil & Gas Exploration and Development on National Forest System Lands, at 2.