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entitled 'National Wildlife Refuges: Opportunities to Improve the
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Report to Congressional Requesters:
August 2003:
NATIONAL WILDLIFE REFUGES:
Opportunities to Improve the Management and Oversight of Oil and Gas
Activities on Federal Lands:
GAO-03-517:
GAO Highlights:
Highlights of GAO-03-517, a report to congressional requesters
Why GAO Did This Study:
The 95-million acre National Wildlife Refuge System contains federal
lands devoted to the conservation and management of fish, wildlife,
and plant resources. While the federal government owns the surface
lands in the system, in many cases private parties own the subsurface
mineral rights and have the legal authority to explore for and extract
oil and gas. GAO was asked to determine the extent of oil and gas
activity on refuges, identify the environmental effects, and assess
the Fish and Wildlife Service’s management and oversight of oil and
gas activities.
What GAO Found:
About one-quarter (155 of 575) of all refuges have past or present oil
and gas activity, some dating to at least the 1920s. Activities range
from exploration to drilling and production to pipelines transiting
refuge lands. One hundred five refuges contain a total of 4,406 oil
and gas wells—2,600 inactive wells and 1,806 active wells. The 1,806
wells, located at 36 refuges and many around the Gulf Coast (see
figure), produced oil and gas valued at $880 million during the last
12 month reporting period, roughly 1 percent of domestic production.
Thirty-five refuges contain only pipelines.
The Fish and Wildlife Service has not assessed the cumulative
environmental effects of oil and gas activities on refuges. Available
studies, anecdotal information, and GAO’s observations show that the
environmental effects of oil and gas activities vary from negligible,
such as from buried pipelines, to substantial, such as from large oil
spills or from large-scale infrastructure. These effects also vary
from the temporary to the longer term. Some of the most detrimental
effects of oil and gas activities have been reduced through
environmental laws and improved practices and technology. Moreover,
oil and gas operators have taken steps, in some cases voluntarily, to
reverse damages resulting from oil and gas activities.
Federal management and oversight of oil and gas activities varies
widely among refuges--some refuges take extensive measures, while
others exercise little control or enforcement. GAO found that this
variation occurs because of differences in authority to oversee
private mineral rights and because refuge managers lack enough
guidance, resources, and training to properly manage and oversee oil
and gas activities. Greater attention to oil and gas activities by the
Fish and Wildlife Service would increase its understanding of
associated environmental effects and contribute to more consistent use
of practices and technologies that protect refuge resources.
What GAO Recommends:
In a draft of this report, GAO made several recommendations to enhance
the Fish and Wildlife Service’s management of oil and gas activities,
including collecting better data; improving training, oversight, and
land acquisition practices; and strengthening permitting authority.
GAO also recommended that the Service seek additional authority to
regulate private mineral rights.
In response to comments received from the Department of the Interior,
GAO has clarified its position as to the means that the Service could
use to improve oversight. Also, in light of Interior’s comments
indicating a perceived inability to request additional authority, GAO
is asking Congress to consider expanding the Service’s authority to
regulate private mineral rights.
www.gao.gov/cgi-bin/getrpt?GAO-03-517.
To view the full product, including the scope and methodology, click
on the link above. For more information, contact William R. Swick at
(206) 287-4851 or swickw@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
Extent of Oil and Gas Activities in Refuges:
Overall Effects of Oil and Gas Activities Are Unknown,
but Those Activities Have Diminished Some Refuge System Resources:
FWS Management and Oversight of Oil and Gas Activities Varies Widely:
Conclusions:
Recommendations for Executive Action:
Matter for Congressional Consideration:
Agency Comments and Our Evaluation:
Appendixes:
Appendix I: Refuges with Oil and Gas Activities:
Appendix II: Summary of Oil and Gas Activities at Refuges Visited:
Appendix III: Analysis of Legal Authority of the Fish and Wildlife
Service to Impose Prospective Permit Requirements:
Appendix IV: Scope and Methodology:
Appendix V: Comments from the Department of the Interior and
U.S. Fish and Wildlife Service:
Appendix VI: GAO Contacts and Acknowledgments:
Tables:
Table 1: Number of Refuges with Oil and Gas Activities, by FWS Region:
Table 2: Refuges with the Highest Number of Wells:
Table 3: Types of Oil-and Gas-Related Wells Located on National
Wildlife Refuges:
Table 4: Oil and Gas Production from Refuge System Wells, January 2003:
Table 5: Refuges with Oil and Gas Pipelines Crossing Refuge Lands:
Table 6: Elements of Management and Oversight Found at Refuges
Visited:
Figures:
Figure 1: Fish and Wildlife Service Regions:
Figure 2: National Wildlife Refuges with Oil and Gas Wells:
Figure 3: Pipeline Storage and Loading Facilities, Delta NWR (La.):
Figure 4: Deep Fork NWR (Okla.) Current and Approved Acquisition
Boundaries:
Figure 5: Ongoing Cleanup of Oil Spill at Delta NWR (La.):
Figure 6: Wellhead at Delta NWR (La.):
Figure 7: Compressed Marsh Grid from 3-D Seismic Study at McFaddin NWR
(Tex.):
Figure 8: Site Restoration at McFaddin NWR (Tex.):
Figure 9: Examples of Unreclaimed Infrastructure on NWRs:
Figure 10: Marsh Restoration Project Funded by Oil and Gas Operators at
Sabine NWR (La.):
Figure 11: Butte Sink Wildlife Management Area (Calif.), Plot of Wells
and One-Half Mile Boundary:
Abbreviations:
CAP: Contaminant Assessment Process:
FWS: Fish and Wildlife Service:
NPMS: National Pipeline Mapping System:
NWR: National Wildlife Refuge:
PCB: polychlorinated biphenyls:
RMIS: Refuge Management Information System:
VOC: volatile organic compounds:
WMA: Wildlife Management Area:
WMD: Wetland Management District:
Letter August 28, 2003:
The Honorable Wayne T. Gilchrest Chairman Subcommittee on Fisheries
Conservation, Wildlife, and Oceans Committee on Resources House of
Representatives The Honorable Edward J. Markey House of
Representatives:
The mission of the National Wildlife Refuge System, as expressed in its
governing legislation, is to "administer a national network of lands
and waters for the conservation, management, and where appropriate,
restoration of the fish, wildlife, and plant resources and their
habitats within the United States for the benefit of present and future
generations of Americans." The system is unique in that the
95 million acres of land in the system are the only federal lands
managed primarily for the benefit of wildlife, providing habitat for
native plants and animals, including endangered or threatened species,
as well as important way points for migrating species, such as ducks,
cranes, and eagles. The system, which represents more than 14 percent
of all federal lands and has a presence in every state, is administered
by the Department of the Interior's Fish and Wildlife Service and
includes both land that has always been federally owned and land that
has been acquired from others. While the federal government owns almost
all the surface lands in the system, in many cases the federal
government does not own the subsurface mineral rights. Subject to some
restriction, owners of subsurface mineral rights have the legal
authority to explore for mineral resources such as oil and gas and,
if such resources are found, to extract them.
In October 2001, we reported that the Fish and Wildlife Service
recognized some type of oil and gas activity on 77 of the 567 refuges
and wetland management districts within the National Wildlife Refuge
System in
calendar year 2000.[Footnote 1] However, our report recognized that
this accounting of activities might be incomplete because the data were
based on refuges' self-reporting. Therefore, to gain a more complete
assessment of oil and gas activities, you asked us to (1) determine the
nature and full extent of oil and gas activities in the National
Wildlife Refuge System, (2) identify environmental effects of oil and
gas activities on refuge resources, and (3) assess the Fish and
Wildlife Service's management and oversight of these activities.
Our updated information on the extent of past and present oil and gas
activities within current wildlife refuge boundaries is based on a
variety of sources. Using national geographic information databases, we
determined how many documented oil and gas wells and transit pipelines
were located within or immediately proximate to refuge boundaries. We
also used Fish and Wildlife Service records to identify other evidence
of oil and gas activities. Premier Data Services, a firm with extensive
experience in computer-based geographic information systems and oil and
gas leasing, aided our data acquisition and analysis (see app. IV). Our
analysis is more extensive than any undertaken by the Fish and Wildlife
Service or the Department of the Interior, and at their request, we are
providing our database to them for future use.
We visited 16 refuges, representing a range of type and scale of oil
and gas activities and environmental effects. At each refuge, we asked
the refuge manager to describe the range of environmental effects of
these oil and gas activities, obtained any available studies of the
effects, and visited selected locations of oil and gas activity to
observe actual conditions.
To assess the authority of the Fish and Wildlife Service to manage and
oversee oil and gas activities on refuges, we obtained information from
the Department of the Interior's Office of the Solicitor and reviewed
the laws and regulations pertaining to the Fish and Wildlife Service
and other federal land management agencies and recent court cases
concerning private mineral rights on federal lands. To assess the Fish
and Wildlife Service's management and oversight of oil and gas
activities, we obtained information on policy, guidance, and practices
from headquarters and the 7 regional offices and documented the actual
practices in use at the 16 refuges we visited.
Results in Brief:
About one-quarter, or 155, of the 575 refuges, have past or current oil
and gas activities, some dating to at least the 1920s. These activities
include oil and gas exploration, active and inactive drilling and
production facilities, and active pipelines transiting refuge lands. As
of December 2002, 4,406 oil and gas wells were located on 105 refuges,
with many of the wells concentrated in Louisiana and Texas. Of the
4,406 wells on refuge lands, a majority (2,600 wells) were inactive,
either permanently plugged and abandoned or temporarily idled with the
possibility of future activation. Thirty-six refuges have
1,806 active wells and more than half of these are located in just
5 refuges. Since 1994, oil and gas exploration has occurred
at 44 refuges. In addition, at least 1 active pipeline is present at
107 refuges, 35 of which do not have any other oil and gas activity.
During the most recent 12-month reporting period, the 1,806
active wells produced 23.7 million barrels of oil and 88.2 million
cubic feet of natural gas, about 1.1 and 0.4 percent of total domestic
oil and gas production, respectively. Based on 2001 average prices,
refuge-based production had an estimated total commercial value of
$880 million.
The Fish and Wildlife Service has not conducted any assessments of the
cumulative environmental effects of oil and gas activities on refuge
resources. Available studies, anecdotal information, and our
observations show that the environmental effects of oil and gas
activities and the associated construction, operation, and maintenance
of the infrastructure on wildlife and habitat vary in severity,
duration, and visibility. For example, the environmental effects range
from infrequent small oil spills and minimal debris from abandoned
infrastructure to large and chronic spills and large-scale industrial
development. Some damage, such as habitat loss from infrastructure
development, may last indefinitely, while other damage, such as
wildlife disturbance from exploration, is of shorter duration. While
certain types of damages are readily visible, others, such as changes
in groundwater hydrology or habitat conditions, are more difficult to
quantify or to link solely to oil and gas activities. Over the years,
new environmental laws and industry practice and technology have
reduced, but not eliminated, some of the most detrimental effects of
oil and gas activities. In addition, oil and gas operators have taken
steps, in some cases voluntarily, to reverse damages resulting from oil
and gas activities, but operators have not consistently taken such
steps and the adequacy of these steps is not known. The Fish and
Wildlife Service does not have a complete and accurate record of spills
and other damage resulting from refuge-based oil and gas activities,
has conducted few studies to quantify the extent of damage, and,
therefore, does not know its full extent or the steps needed to
reverse it.
The Fish and Wildlife Service's management and oversight of oil and gas
activities varies widely among refuges. Management control standards
for federal agencies require federal agencies to identify risks to
their assets, provide guidance to mitigate these risks, and monitor
compliance.[Footnote 2] For the Fish and Wildlife Service, effectively
managing oil and gas activities on refuges would entail, at a minimum,
identifying the extent of oil and gas activities and their attendant
risks, developing procedures to minimize damages by issuing permits
with conditions to protect refuge resources, and monitoring the
activities with trained staff to ensure compliance and accountability.
However, we found a wide variance in the extent to which these
management practices occur. Some refuges identify oil and gas
activities and the risks they pose to refuge resources, issue permits
that direct operators to minimize the effect of their activities on the
refuge, monitor oil and gas activities with trained personnel, and
charge mitigation fees or pursue legal remedies if damage occurs. For
example, two refuges in Louisiana collect mitigation fees from oil and
gas operators that are then used to pay for monitoring operator
compliance with permits and state and federal laws. In contrast,
other refuges do not issue permits or collect fees, are not aware of
the extent of oil and gas activities or the attendant risks to refuge
resources, and provide little management and oversight.
There are two primary reasons for the variation in management of oil
and gas activities. First, the Fish and Wildlife Service's legal
authority to require oil and gas operators to obtain access permits
with conditions to protect refuge resources varies considerably,
depending upon the nature of the mineral rights. For reserved mineral
rights--cases where the property owner retained the mineral rights when
selling the land to the federal government--the Fish and Wildlife
Service can require permits only if the property deed subjects the
rights to such requirements. For outstanding mineral rights--cases
where the mineral rights were separated from the surface lands before
the government acquired the property--the Fish and Wildlife Service has
not formally determined its position regarding its authority to require
access permits. However, we believe, based on statutory language and
court decisions, that the Fish and Wildlife Service has the authority
to require owners of outstanding mineral rights to obtain permits.
Second, refuge managers lack sufficient guidance, resources, and
training to properly monitor oil and gas operators. Current Fish and
Wildlife Service guidance regarding the management of oil and gas
activities where there are private mineral rights is unclear, according
to refuge staff. Refuge staff said they also lack sufficient resources
to oversee oil and gas activities, which at some refuges are
substantial. Only three refuges in the system have staff dedicated on a
full-time basis to monitoring these activities, and some refuge staff
cite a lack of time as a reason for limited oversight. Staff also cite
a lack of training as limiting their capability to oversee oil and gas
operators; the Fish and Wildlife Service has offered only one oil and
gas related workshop in the last 10 years. In addition, on a related
management issue, the Fish and Wildlife Service has not, in all cases,
adequately examined new property for possible contamination from oil
and gas activities prior to acquisition. While the Fish and Wildlife
Service requires an assessment of all possible contamination, the
guidance and oversight provided to regional and refuge personnel are
inadequate to ensure that the requirements are met. We found that three
of the Fish and Wildlife Service's seven regions acquire lands without
fully investigating hazardous substances and environmental problems for
which they may become liable. For example, one region acquired a former
oil storage site that required extensive soil removal and disposal,
costing the Fish and Wildlife Service and others $58,000.
We are recommending that the Secretary of the Interior direct the
Director of the Fish and Wildlife Service to strengthen its management
and oversight practices by (1) collecting and maintaining better data
on oil and gas activities and their environmental effects, and ensuring
that staff resources, funding, and training are sufficient and
(2) clarifying acquisition regulations to ensure that the Fish and
Wildlife Service does not acquire unknown liabilities in its future
land acquisitions. We are also recommending that, to improve the
framework for managing and overseeing oil and gas activities, the
Secretary and the Director work with the Department of the Interior's
Office of the Solicitor to (1) determine the Fish and Wildlife
Service's existing authority over outstanding mineral rights and
(2) seek from Congress, in coordination with appropriate Administration
officials, including those within the Executive Office of the
President, any necessary additional authority over such rights, and
over reserved mineral rights, to ensure that a consistent and
reasonable set of regulatory and management controls are in place for
all oil and gas activities occurring on national wildlife refuges. In
light of the department's perceived limitations of its ability to
request additional legislative authority, Congress may also wish to
consider expanding the Fish and Wildlife Service's authority to enable
it to consistently regulate the surface activities of private mineral
owners on wildlife refuges.
The Department of the Interior's response to the draft report was
mixed. The department agreed that it could improve its acquisition
policy and guidance. The department was silent on our recommendations
that it should collect and maintain better data on oil and gas
activities and their effects and that it should ensure that staff are
adequately trained to oversee oil and gas activities. We continue to
believe these recommendations are warranted. The department did raise a
concern in regards to two of our recommendations. First, the department
questioned whether hiring additional dedicated staff would be the most
cost-effective solution to improving oversight. In voicing its concern,
however, the department apparently misinterpreted our recommendation
for the FWS to determine what level of staffing is necessary to oversee
these activities as a call to hire additional staff. If the department
determines that there are more cost-effective means to ensure adequate
staffing, such as the use of contractors or temporary staff, that would
also satisfy this recommendation. Second, the department raised
concerns about GAO's recommendation that it seek additional authority
from Congress to regulate private mineral rights. The department
indicated that doing so would violate the Recommendations Clause of the
U.S. Constitution by infringing upon the role of the President to
recommend legislative action to Congress. We disagree. As a practical
matter, we expect that the department would coordinate legislative
proposals with the Administration and we have clarified the
recommendation accordingly. Moreover, as a legal issue, there is
nothing in the Recommendations Clause that bars an executive branch
department from recommending legislation to Congress. Given the
department's opposition to this recommendation, we have also raised
this matter to Congress for its consideration.
Background:
The refuge system comprises 538 refuges, 37 wetland management
districts (an administrative system of thousands of Waterfowl
Production Areas and conservation easements, primarily in the north
central United States), and 50 coordination areas.[Footnote 3] The Fish
and Wildlife Service (FWS) owns the surface lands and, in some cases,
the mineral rights of National Wildlife Refuges and Waterfowl
Production Areas, while conservation easements and coordination areas
are owned or managed by others. Day-to-day management of
wildlife refuges is the responsibility of local refuge managers,
subject to the direction of seven regional refuge chiefs and the Chief
of the National Wildlife Refuge System (see fig. 1 for a map of FWS
regions). Of FWS's nearly $1.3 billion budget in fiscal year 2002,
about $319 million was devoted to the operations and maintenance of the
refuge system. In fiscal year 2002, $99.13 million from the Land and
Water Conservation Fund was used for the acquisition of additional
refuge lands.[Footnote 4]
Figure 1: Fish and Wildlife Service Regions:
[See PDF for image]
[End of figure]
Over the years, we and others have examined the effects on the refuge
system of secondary activities,[Footnote 5] such as recreation,
military activities, and oil and gas activities--which include oil and
gas exploration, drilling and production, and transport. Exploring for
oil and gas involves seismic mapping of the subsurface topography.
Seismic mapping, regardless of the technology employed, requires
surface disturbance, often involving small dynamite charges placed in a
series of holes, typically in patterned grids. If seismic mapping
reveals potential oil or gas deposits exploratory drilling begins. Oil
and gas drilling and production often requires constructing, operating,
and maintaining industrial infrastructure, including a network of
access roads and canals, local pipelines to connect well sites to
production facilities and dispose of drilling wastes, and gravel pads
to house the drilling and other equipment. In addition, production may
require storage tanks, separating facilities, and gas compressors.
Finally, transporting oil and gas to production facilities or to users
requires transit pipelines. Typically buried, these pipelines range in
size, with some as large as 30 inches in diameter. Pumping stations and
storage tanks may also be needed for pipeline operations.
Under the National Wildlife Refuge System Administration Act of 1966,
as amended, FWS is responsible for regulating all activities
on refuges. The act requires FWS to determine the compatibility of
activities with the purposes of the particular refuge and the mission
of the refuge system and not allow those activities deemed
incompatible.[Footnote 6] However, FWS does not apply the compatibility
requirement to the exercise of private mineral rights on refuges.
Department of the Interior regulations also prohibit leasing federal
minerals underlying refuges outside of Alaska, except in cases where
federal minerals are being drained by operations on property adjacent
to the refuge.
Nevertheless, the activities of private mineral owners on refuges are
subject to a variety of legal restrictions, including FWS regulations.
A variety of federal laws affect how private mineral rights owners
conduct their activities.[Footnote 7] For example, the Endangered
Species Act of 1973 prohibits the "take" of any endangered or
threatened species and provides for penalties for violations of the
act;[Footnote 8] the Migratory Bird Treaty Act prohibits killing,
hunting, possessing, or selling migratory birds, except in accordance
with a permit;[Footnote 9] and the Clean Water Act prohibits
discharging oil or other toxic substances into waters of the United
States and imposes liability for removal costs and damages resulting
from a discharge.[Footnote 10]
Also, FWS regulations require that oil and gas activities be performed
in a way that minimizes the risk of damage to the land and wildlife and
the disturbance to the operation of the refuge. The regulations also
require that land affected be reclaimed after operations have
ceased.[Footnote 11] Whether FWS has authority to impose permitting
requirements on private oil and gas activities is discussed later in
this report.
Extent of Oil and Gas Activities in Refuges:
At least 155 of the 575 refuges of the National Wildlife Refuge System
have some past or present oil and gas activities--exploration, drilling
and production, or transit pipelines. Many of these activities are
concentrated around the Gulf Coast of Louisiana and Texas. We found
that oil and gas exploration has occurred at 44 refuges since 1994. We
also determined that there are 4,406 wells on 105 refuges, though only
41 percent of the wells at 36 refuges are active, with the other wells
either plugged and abandoned or temporarily idle. Active wells on
refuge lands produce roughly 1.1 percent and 0.4 percent of
domestically produced oil and gas from onshore wells, with an
approximate value of $880 million based on 2001 prices. In addition,
active oil and gas transmission pipelines cross at least 107 refuges.
Bordering refuges, another 4,795 wells reside within one-half mile
outside refuge boundaries, in some cases on lands that FWS may acquire
in the future.
One-Quarter of All Refuges Have Past or Present Oil and Gas Activities:
About one-quarter, or 155, of the 575 refuges (538 refuges and
37 wetland management districts) that constitute the National Wildlife
Refuge System have past or present oil and gas activities--exploration,
drilling and production, transit pipelines, or some combination of
these (see table 1).[Footnote 12] Since 1994, FWS records show that
44 refuges have had some type of oil and gas exploration activities--
geologic study, survey, or seismic work. More than one-half of these
exploratory activities occurred in the southeastern and southwestern
regions of the United States. We also identified 105 refuges with
inactive or active oil and gas wells and 107 refuges with transit
pipelines. Exploration or drilling and production activities occurred
at 120 of the 155 refuges.
Table 1: Number of Refuges with Oil and Gas Activities, by FWS Region:
FWS region[A]: 1 (Pacific); Number of refuges, by category: Exploration
(survey and seismic work)[B]: 5; Number of refuges, by category:
Drilling and production (active and inactive oil and gas wells)[C]: 20;
Number of refuges, by category: Active pipelines (transiting refuge
lands)[D]: 9; Unduplicated counts, by category group:
Exploration and/or drilling and production: 22; Unduplicated counts, by
category group: Exploration, drilling and production, and/or pipelines:
24.
FWS region[A]: 2 (Southwest); Number of refuges, by category:
Exploration (survey and seismic work)[B]: 10; Number of refuges, by
category: Drilling and production (active and inactive oil and gas
wells)[C]: 22; Number of refuges, by category: Active pipelines
(transiting refuge lands)[D]: 24; Unduplicated counts, by
category group: Exploration and/or drilling and production: 22;
Unduplicated counts, by category group: Exploration, drilling and
production, and/or pipelines: 29.
FWS region[A]: 3 (Great Lakes-Big Rivers); Number of refuges, by
category: Exploration (survey and seismic work)[B]: 1; Number of
refuges, by category: Drilling and production (active and inactive oil
and gas wells)[C]: 10; Number of refuges, by category: Active pipelines
(transiting refuge lands)[D]: 14; Unduplicated counts, by
category group: Exploration and/or drilling and production: 10;
Unduplicated counts, by category group: Exploration, drilling and
production, and/or pipelines: 19.
FWS region[A]: 4 (Southeast); Number of refuges, by category:
Exploration (survey and seismic work)[B]: 14; Number of refuges, by
category: Drilling and production (active and inactive oil and gas
wells)[C]: 28; Number of refuges, by category: Active pipelines
(transiting refuge lands)[D]: 37; Unduplicated counts, by
category group: Exploration and/or drilling and production: 34;
Unduplicated counts, by category group: Exploration, drilling and
production, and/or pipelines: 45.
FWS region[A]: 5 (Northeast); Number of refuges, by category:
Exploration (survey and seismic work)[B]: 1; Number of refuges, by
category: Drilling and production (active and inactive oil and gas
wells)[C]: 4; Number of refuges, by category: Active pipelines
(transiting refuge lands)[D]: 6; Unduplicated counts, by
category group: Exploration and/or drilling and production: 4;
Unduplicated counts, by category group: Exploration, drilling and
production, and/or pipelines: 6.
FWS region[A]: 6 (Mountain-Prairie); Number of refuges, by category:
Exploration (survey and seismic work)[B]: 9; Number of refuges, by
category: Drilling and production (active and inactive oil and gas
wells)[C]: 20; Number of refuges, by category: Active pipelines
(transiting refuge lands)[D]: 15; Unduplicated counts, by
category group: Exploration and/or drilling and production: 24;
Unduplicated counts, by category group: Exploration, drilling and
production, and/or pipelines: 27.
FWS region[A]: 7 (Alaska); Number of refuges, by category: Exploration
(survey and seismic work)[B]: 4; Number of refuges, by category:
Drilling and production (active and inactive oil and gas wells)[C]: 1;
Number of refuges, by category: Active pipelines (transiting refuge
lands)[D]: 2; Unduplicated counts, by category group:
Exploration and/or drilling and production: 4; Unduplicated counts, by
category group: Exploration, drilling and production, and/or pipelines:
5.
FWS region[A]: Total; Number of refuges, by category: Exploration
(survey and seismic work)[B]: 44; Number of refuges, by category:
Drilling and production (active and inactive oil and gas wells)[C]:
105; Number of refuges, by category: Active pipelines (transiting
refuge lands)[D]: 107; Unduplicated counts, by category group:
Exploration and/or drilling and production: 120; Unduplicated counts,
by category group: Exploration, drilling and production, and/or
pipelines: 155.
Sources: FWS, Premier Data Services, and Office of Pipeline Safety.
[A] See figure 1.
[B] Based on GAO's analysis of refuge reported data to FWS's Refuge
Management Information System, 1994-2001.
[C] Based on GAO's analysis of Premier Data Services' nationwide well
database, January 2003.
[D] Based on GAO's analysis of the National Pipeline Mapping System and
Refuge Management Information System data, 1994-2001.
[End of table]
Wells in the Refuge System Are Geographically Concentrated:
In total, we identified 4,406 oil and gas wells within 105 refuges. The
number of wells per refuge ranged from 1 dry hole well drilled at
Willapa Bay National Wildlife Refuge (NWR) in Washington to 1,120 wells
at Upper Ouachita NWR in Louisiana. Although refuges with oil and
gas wells are present in every FWS region, they are more heavily
concentrated in the Gulf Coast of the United States (see fig. 2). More
than one-half of the wells (2,512) are located on refuges in FWS Region
4 and a majority of these are in Louisiana.
Figure 2: National Wildlife Refuges with Oil and Gas Wells:
[See PDF for image]
[End of figure]
Wells are also concentrated among a minority of the system's units.
For example, five refuges contain 57 percent of all the wells in the
system, as shown in table 2.
Table 2: Refuges with the Highest Number of Wells:
Refuge: Upper Ouachita NWR; FWS region: 4; State: La; Number of wells:
1,120.
Refuge: St. Catherine's Creek NWR; FWS region: 4; State: Miss; Number
of wells: 465.
Refuge: Deep Fork NWR; FWS region: 2; State: Okla; Number of wells:
362.
Refuge: Delta NWR; FWS region: 4; State: La; Number of wells: 338.
Refuge: Lower Rio Grande Valley NWR; FWS region: 2; State: Tex; Number
of wells: 217.
Refuge: Total; FWS region: State: Number of wells:
2,502.
Sources: Premier Data Services (data); GAO (analysis).
[End of table]
A Minority of Wells in Refuges Are Actively Producing, Yielding About
1 Percent of the U.S.'s Total Onshore Production:
About 4 out of 10 wells located on refuges are actively producing. Of
the 4,406 wells, 1,806, or 41 percent, were known to be actively
producing oil or gas or disposing of produced water as of the most
recent reporting time period as of January 2003. Of the 105 refuges
with oil and gas wells, 36 refuges have actively producing wells. The
remaining 2,600 wells did not produce oil, gas, or water during the
last 12 months; many of these were plugged and abandoned or were dry
holes.[Footnote 13] Gas wells were the most common type of well as
indicated in table 3.
Table 3: Types of Oil-and Gas-Related Wells Located on National
Wildlife Refuges:
Type of well: Gas; Total: 1,265.
Type of well: Dry hole; Total: 967.
Type of well: Unknown[A]; Total: 677.
Type of well: Plugged and abandoned; Total: 642.
Type of well: Oil; Total: 618.
Type of well: Injection or disposal; Total: 99.
Type of well: Oil and gas; Total: 65.
Type of well: Active permit; Total: 34.
Type of well: Miscellaneous[B]; Total: 23.
Type of well: Temporarily abandoned; Total: 10.
Type of well: Coalbed methane; Total: 6.
Type of well: Total; Total: 4,406.
Sources: Premier Data Services (data); GAO (analysis).
[A] Permittees had not yet updated the status of these wells to their
respective state oil and gas commissions:
[B] Includes service, test, recovery, and water wells.
[End of table]
Active wells on refuge lands produced a total of 23.7 million barrels
of oil and 88,171 million cubic feet of natural gas during the most
recent 12 months as of January 2003--about 1.1 percent of the
2.117 billion barrels of oil and 0.4 percent of the 24,532,514 million
cubic feet of natural gas produced during 2001 (see table 4).[Footnote
14] The 1,806 active oil and gas wells on refuge lands were roughly
1 percent of the approximately 148,750 active onshore oil and gas wells
in the United States in 2001.[Footnote 15] The value of all refuge-
based production, based on 2001 average prices, was over $880 million.
However, in addition to levels of production and oil and gas prices,
the net benefit of oil and gas activities depends on a number of
factors, including size of the investment in infrastructures and any
adverse effects on the environment, recreation, and tourism.[Footnote
16]
Table 4: Oil and Gas Production from Refuge System Wells, January 2003:
Oil production (barrels); Refuge-based production (last 12 months):
23,694,548; Domestic onshore production (2001): 2,117,512,000; Refuge-
based production (percent of total): 1.1; Wellhead price (2001): $21.84
(per barrel); Value of production: $517,488,928.
Natural gas production (million cubic feet); Refuge-based production
(last 12 months): 88,171; Domestic onshore production (2001):
24,532,514; Refuge-based production (percent of total): 0.4; Wellhead
price (2001): $4.12 (per thousand cubic feet); Value of production:
$363,264,520.
Total; Refuge-based production (last 12 months): Domestic
onshore production (2001): Refuge-based production (percent of
total): Wellhead price (2001): Value of production:
$880,753,448.
Sources: Premier Data Services and Energy Information Administration
(data); GAO (analysis).
[End of table]
Transit Pipelines Cross Refuges:
At least 273 miles of transit pipeline from 49 different oil and gas
pipelines cross 28 of the 138 refuges for which data are
available.[Footnote 17] These pipelines are almost exclusively buried
and generally require right-of-way permits from FWS. The pipelines vary
in size, up to 30 inches in diameter and carry a variety of products,
including crude oil, refined petroleum products, and high-pressure
natural gas (see table 5). While pipelines cannot be constructed across
refuge lands unless FWS determines that the pipelines are compatible
with the purposes of the refuge and issues a right-of-way permit, some
pipelines were constructed before FWS acquired the property. These
pipelines did not undergo a compatibility determination and may not
have received a right-of-way permit.
Table 5: Refuges with Oil and Gas Pipelines Crossing Refuge Lands:
Liquids pipelines[A]; Number of refuges: 19; Number of pipelines: 24;
Miles of pipeline: 146.3.
Natural gas pipelines[B]; Number of refuges: 5; Number of pipelines: 7;
Miles of pipeline: 24.2.
Both liquid and gas; Number of refuges: 4; Number of pipelines: 18;
Miles of pipeline: 102.4.
Total; Number of refuges: 28; Number of pipelines: 49; Miles of
pipeline: 273.
Sources: National Pipeline Mapping System and Department of
Transportation (data); GAO (analysis based on 138 of the 575 refuges).
[A] Category includes crude oil, liquid petroleum gas, natural gas
liquids, and other petroleum products.
[B] Category includes natural gas, highly volatile natural gas, and
carbon dioxide.
[End of table]
Transit pipelines may also have associated storage facilities and
pumping stations, such as those we toured at Delta NWR in Louisiana
(see fig. 3), but data are not available to identify how many of these
are on refuges.
Figure 3: Pipeline Storage and Loading Facilities, Delta NWR (La.):
[See PDF for image]
[End of figure]
Additional Wells and Pipelines Are Located within One-Half Mile of
Refuge Boundaries:
A total of 4,795 wells and 84 transit pipelines reside just
outside refuges, within one-half mile of refuge boundaries. The
4,795 wells bound 123 refuges, 33 of which do not have any resident oil
and gas wells. The 84 pipelines are 186 miles long and border 42
different refuges. While FWS does not own the land outside refuge
boundaries, lands surrounding refuges may be designated for future
acquisition. For example, at Deep Fork NWR in Oklahoma, 606 wells are
within one-half mile outside current boundaries, and some of this land
is within approved boundaries for future acquisition (see fig. 4).
Figure 4: Deep Fork NWR (Okla.) Current and Approved Acquisition
Boundaries:
[See PDF for image]
[End of figure]
Overall Effects of Oil and Gas Activities Are Unknown,
but Those Activities Have Diminished Some Refuge System Resources:
The overall environmental effects of oil and gas activities on refuge
resources are unknown because FWS has conducted few cumulative
assessments and has no comprehensive data. Available information
indicates that refuge wildlife and habitat have been harmed to varying
degrees by spills of oil, gas, brine,[Footnote 18] and industrial
materials as well as through the construction, operation, and
maintenance of the infrastructure necessary to produce oil and gas.
Routine oil and gas activities can contaminate a refuge and reduce the
quantity and quality of habitat available for wildlife. Over the years,
new environmental laws and improved industry practices and technology
have reduced some of the most detrimental effects of oil and gas
activities; however, some harm to refuges continues to occur and some
effects from earlier events have not been reversed and continue to
diminish refuge resources. In addition, oil and gas operators have
taken steps, in some cases voluntarily, to reverse damages resulting
from oil and gas activities, but operators have not consistently taken
such steps and the adequacy of these steps is not known. FWS does not
have an accurate record of the number of spills on refuges and has
conducted few studies on the effects of refuge-based oil and gas
activities and, therefore, does not know the full extent of the problem
or the steps needed to reverse them.
Oil and Gas Activities Have, to Varying Degrees, Diminished Refuge
System Resources:
Available studies, anecdotal information, and our observations show
that some refuge resources have been diminished to varying degrees by
spills of oil, gas, and brine and through the construction, operation,
and maintenance of the infrastructure necessary to extract oil and gas.
The damage varies widely in severity, duration, and visibility, ranging
from infrequent small oil spills and industrial debris with no known
effect on wildlife, to large and chronic spills causing wildlife deaths
and long-term soil and water contamination. Some damage, such as
habitat loss because of infrastructure development and soil and water
contamination, may last indefinitely while other damage, such as
wildlife disturbance during seismic mapping, is of shorter duration.
Also, while certain types of damage are readily visible, others, such
as groundwater contamination and reduced habitat quality from
infrastructure development, are difficult to observe, quantify, and
associate directly with oil and gas activities. Finally, oil and gas
activities may hinder FWS's ability to manage or improve refuge
habitat, such as seasonal flooding of wetlands or prescribed burns, or
hinder public access to parts of the refuge.
Spills:
Spills of oil, gas, and brine have harmed refuge wildlife and habitat.
Oil and gas can injure or kill wildlife by destroying the insulating
capacity of feathers and fur, depleting oxygen available in water, or
exposing wildlife to toxic substances. Long-term effects of oil and gas
contamination are difficult to determine, but studies suggest that
effects of exposure include reduced fertility, kidney and liver damage,
immune suppression, and cancer. Even small spills may contaminate soil
and sediments if they occur frequently. For instance, a study of
Atchafalaya and Delta NWRs in Louisiana found that levels of oil
contamination near oil and gas facilities are lethal to most species of
wildlife, even though refuge staff were not aware of any large
spills.[Footnote 19] Figure 5 shows an ongoing clean up of a relatively
small oil spill that occurred at Delta NWR in 2002. Brine spills
can also be lethal to young waterfowl, damage birds' feathers, kill
vegetation, and decrease nutrients in water. Based on well data from
Premier Data Services, over 19.8 million gallons of brine were produced
from active wells on NWRs during the most recent 12-month reporting
period as of January 2003. Much of this brine was reinjected back into
the ground to prevent surface damage.
Figure 5: Ongoing Cleanup of Oil Spill at Delta NWR (La.):
[See PDF for image]
Note: Absorbent pads and booms in foreground.
[End of figure]
The 16 refuges we visited reported oil, gas, or brine spills, although
the frequency and effect of the spills varied widely. For instance,
Hopper Mountain NWR in California reported two oil spills in 1990, the
only spills since 1974, and refuge records indicated that the operator
cleaned up each spill quickly and that refuge staff detected no effect
on wildlife. In contrast, Anahuac NWR in Texas reported at least 7 oil
spills since 1991, including 1 pipeline spill that killed over 800
large fish such as mullet and redfish and over 180,000 menhaden, a
small but ecologically important fish. FWS officials said that natural
gas leaks generally pose a lower risk to habitat than oil spills, but a
gas leak in 2000 at Sabine NWR in Louisiana killed fish, crabs, and
amphibians. Brine spills have also damaged refuges. For example,
Atchafalaya and D'Arbonne NWRs in Louisiana reported that brine spills
had killed vegetation in the area of the spill. At these refuges, salt
concentrations in the soil have remained high and continued to spread
for decades after a spill, and some sites do not support vegetation
years afterwards.
The exact number and size of oil and gas spills on NWRs is not known.
Nationally, FWS reported that 348 oil and gas spills were located on or
near refuges during fiscal year 2002, although there are limitations to
this figure. First, it includes spills resulting from activities not
associated with oil and gas production or transit pipelines, such as
shipping accidents. Second, FWS calculated the number of spills by
reviewing spill reports from the National Response Center and other
parties that did not always identify if a refuge is affected. Third,
not all spills are required to be reported. Clean Water Act regulations
require operators to report spills of any quantity if they cause a
sheen to form on waters subject to federal jurisdiction.[Footnote 20]
Other spills are subject to state reporting requirements, which vary.
For instance, Texas requires operators to report spills over
210 gallons, while Louisiana requires operators to report spills over
42 gallons. Finally, refuge staff told us that they knew of spills that
operators never reported.
Infrastructure:
Constructing, operating, and maintaining the infrastructure necessary
to produce oil and gas can harm wildlife by reducing the quantity and
quality of habitat. At Kenai NWR in Alaska, for instance, oil and
gas wells and associated facilities have eliminated at least 524 acres
of habitat, while other infrastructure, such as access roads and
pipelines, has eliminated an additional 424 acres. While this loss of
habitat represents a very small proportion of total refuge acreage,
refuge staff determined that it eliminated food sources that would have
supported between 41 and 136 cow moose and 411 snowshoe hares. In other
instances, habitat lost to infrastructure development is negligible--
for example, the presence of a wellhead or pipelines, such as the
wellhead at Delta NWR shown in figure 6.
Figure 6: Wellhead at Delta NWR (La.):
[See PDF for image]
[End of figure]
Infrastructure development can reduce the quality of habitat by
fragmenting it and, in some cases, by changing the hydrology of the
refuge ecosystem or contaminating it with toxic substances. Habitat
fragmentation occurs when a network of roads, canals, and other
infrastructure is constructed in previously undeveloped areas of a
refuge. Fragmentation increases disturbances from human activities,
provides pathways for predators, and helps spread nonnative plant
species. For example, the endangered California condor is particularly
susceptible to disturbances from human activities. Condors have been
observed landing on oil pads on the refuge, which poses a safety risk
to the birds and reduces their fear of humans. In addition, FWS
estimated in 1980 that oil and gas activities at Hopper Mountain NWR
eliminated about 63 percent of the potential feeding habitat for
condors on the refuge. The current refuge manager said that the effect
of this loss on the condor population may not be significant because
the importance of the feeding habitat provided by the refuge may not be
as great as previously thought. Corridors that oil and gas operators
have developed assist predation--for example, among songbirds, and
allow a pathway for invasive species, a significant management problem
for FWS.[Footnote 21] Finally, officials at Anahuac and McFaddin NWRs
in Texas said that disturbances from oil and gas activities are likely
significant and expressed concern that bird nesting may be disrupted.
However, no studies have been conducted at these refuges to determine
the effect of these disturbances.
Infrastructure networks can also damage refuge habitat by changing the
hydrology of the refuge ecosystem, particularly in coastal areas. For
instance, tens of thousands of acres of freshwater marsh at Sabine NWR,
and elsewhere in Louisiana and Texas, have been lost due to saltwater
intrusion. Saltwater intrusion may change the types of plants in the
marsh and can cause erosion that creates an open water habitat that
is less biologically productive than the marsh. While several factors
contribute to the saltwater intrusion, construction of canals to access
oil and gas facilities is considered by many scientists to be
significant. Seismic studies for oil and gas exploration in coastal
marshes can also contribute to saltwater intrusion. Seismic studies are
typically conducted in a grid pattern and may cover large portions of a
refuge. Preparing and conducting seismic studies may require heavy
equipment that can compress the marsh, which changes the plant
community and could allow saltwater to intrude into the marsh,
particularly during droughts that decrease freshwater flows. At
McFaddin NWR, the grid pattern from a 1995 seismic study was clearly
visible from infrared aerial photographs taken after the seismic study
was completed (see fig. 7).
Figure 7: Compressed Marsh Grid from 3-D Seismic Study at McFaddin NWR
(Tex.):
[See PDF for image]
Note: Infrared photograph (1995).
[End of figure]
Moreover, industrial activities associated with extracting oil and gas
have been found to contaminate wildlife refuges with toxic substances
such as mercury and polychlorinated biphenyls (PCB). D'Arbonne, Kenai,
and Upper Ouachita (Louisiana) NWRs reported mercury contamination, and
Kenai NWR reported PCB contamination from oil and gas activities that
must still be cleaned up by FWS if the responsible parties cannot be
found. Mercury and PCBs were used in equipment such as compressors,
transformers, and well production meters, although generally they are
no longer used. Mercury has been linked to brain, kidney, and
reproductive system damage, and PCBs are known animal carcinogens.
Legal and Industry Changes Have Reduced Some of the Environmental
Effects of Oil and Gas Activities:
New laws prohibiting some of the most harmful industry practices have
helped diminish the adverse effect of current and recent oil and gas
activities on refuge resources. For example, Louisiana now generally
prohibits using open pits to store production wastes and brine in
coastal areas or discharging brine into drainages or state waters.
Another example is Texas, which requires operators to install screens
or nets over open tanks and pits to protect birds from contacting
hazardous fluids. Texas also now requires operators to remove oil and
gas infrastructure, such as tanks, which will not be actively used in
the continuing operation of a lease and to contour closed sites to
reduce water contamination.
Improvements in industry practice, including improved technology,
have also reduced the damage caused by oil and gas activities. For
example, where feasible, directional drilling allows (1) operators to
avoid placing wells in sensitive areas such as wetlands and (2) several
wells to be drilled from the same pad, thus reducing the amount of
habitat damaged. Another example is improved geologic mapping through
3-D seismic technology. While 3-D seismic studies require more vehicle
traffic and may damage more vegetation than 2-D studies, improved
geologic mapping may reduce the number of wells drilled that do not
produce oil or gas and ultimately reduce the amount of habitat damaged.
Furthermore, the impact of 3-D seismic studies has been reduced through
other improvements, including using vehicles less damaging to the
surface, reducing the number of vehicle trips necessary, hand carrying
seismic lines to avoid vehicle damage altogether, and scheduling
seismic operations to avoid sensitive times.
While the relative impacts of the activities have been reduced in
recent years, the effects have not been eliminated. For instance, oil
and gas infrastructure continues to diminish availability of refuge
habitat for wildlife, and spills of oil, gas, and brine that damage
fish and wildlife continue to occur. In addition, several refuge
managers reported that operators do not always comply with legal
requirements or follow best industry practices such as constructing
berms (earthen barriers) around tanks to contain spills, covering tanks
to protect wildlife, and removing pits that temporarily store fluids
used during well maintenance.
Reversing Environmental Damages Is Inconsistent:
Environmental damage from oil and gas activities may be partially
reversed by remediating contamination or by reclaiming a site to its
prior condition after oil and gas activities cease. However, oil and
gas operators have not consistently taken steps to reverse
environmental damages that have occurred from oil and gas activities on
NWRs. In some cases, officials do not know if remediation following
spills is sufficient to protect refuge resources, particularly for
smaller oil spills or spills into wetlands. In other cases, FWS has
been satisfied with the response. According to refuge officials and
industry representatives, when small oil spills occur, operators may
contain the oil and then remove the oil and the contaminated soil, but
in some cases operators leave the oil and cover it with dirt. In
contrast, the effects of larger spills may be evaluated systematically
and remediated by the operator. For example, in 2000, a ruptured
pipeline spilled nearly 200,000 gallons of crude oil at John Heinz NWR
in Pennsylvania, damaging several species of wildlife and covering a
frozen pond. In response, the operator removed the oil and the
contaminated soil, replanted damaged vegetation, funded scientific
studies to determine the effect on refuge wildlife, compensated the
refuge for the value lost to visitors during the spill; and the
operator is negotiating with FWS to identify an appropriate restoration
project to compensate for the ecologic value of refuge resources lost
while the refuge recovers from the spill.
Similar to spill remediation, reclamation of oil and gas facilities
following their use is also inconsistent. For instance, an operator at
McFaddin NWR removed a road and a well pad that had been constructed to
access a new well site and restored the marsh damaged by construction
after the well was no longer needed. Figure 8 provides an aerial view
of the road and the well pad shortly after they were constructed and a
photo of the same site following reclamation. Other refuges, however,
reported that storage tanks, debris, and access roads remained long
after use (see fig. 9). Refuge staff cited several reasons for some
sites not being reclaimed, including difficulty identifying the
responsible parties, operator insolvency, potential future use because
other locations in the same field remained in operation, and
uncertainty of their authority to require operators to reclaim sites.
Finally, several states do not require operators to reverse the effects
of oil and gas activities.[Footnote 22] For instance, Texas law does
not require operators to remove all buried flowlines or access roads.
Several states, such as Oklahoma and Texas, have established programs
to clean up abandoned oil and gas sites, but funds are limited.
Figure 8: Site Restoration at McFaddin NWR (Tex.):
[See PDF for image]
Note: Location of well site before (1996) and after restoration (2002).
[End of figure]
Figure 9: Examples of Unreclaimed Infrastructure on NWRs:
[See PDF for image]
Notes:
Exposed and abandoned flowlines at Anahuac NWR (Tex.) (above).
Abandoned tank battery at Deep Fork NWR (Okla.) (below).
[End of figure]
Because operators do not consistently or entirely reverse environmental
damages resulting from oil and gas activities, FWS has had to clean up
sites at its expense or leave sites unreclaimed. FWS spent $387,100 to
clean up 14 oil-or gas-related sites between fiscal years 1991 and 2002
and is planning to spend an additional $108,000 at 3 sites in fiscal
year 2003. These cleanup projects included removing oil-and gas-related
debris, plugging unused gas wells, and addressing mercury contamination
at 9 refuges in Arkansas and Louisiana. Other sites remain to be
addressed. There are 2,600 inactive wells on refuges, including an
unknown number that have been abandoned but not plugged, and some sites
also have unused tanks, flowlines, and debris that should be removed.
The estimated cost of cleanup at a site at Anahuac NWR is $1.1 million
and currently is deferred until fiscal year 2009. Refuge managers at
some refuges we visited expressed concern that as oil and gas
production declines, operators will abandon more infrastructure and FWS
will have to reclaim these sites.
FWS Documentation of Environmental Effects Is Limited and Inconsistent:
FWS has conducted few studies to quantify the extent of the damage
caused by oil and gas activities. FWS identifies and assesses
contaminant threats to refuges by conducting Contaminant Assessment
Process (CAP) studies and other studies of contamination. Although CAP
studies are FWS's primary formal mechanism for identifying potential
sources of contaminants on refuges, the studies do not quantify the
extent of any contamination or its biological effects. Moreover, CAP
studies have not been conducted at all refuges with oil and gas
activities, including many refuges that have significant activities.
FWS established the CAP process in 1996, and to date studies have been
completed at about 193 refuges (about 34 percent of all refuges),
including 67 of the 155 refuges (43 percent) with oil and gas
activities. The number of refuges with oil and gas activities that have
completed CAP studies varies by region. For instance, in Region 2,
which includes Texas, 20 of 28 refuges (71 percent) had completed CAP
studies, while in Region 4, which includes Louisiana, 11 of 45
(24 percent) had completed CAP studies. The national coordinator for
CAP said that the studies are sequenced to coincide with each refuge's
comprehensive conservation planning process, which, in turn, is
prioritized within each region based on factors including primary
threats, staffing levels, and funding. Finally, the comprehensiveness
of the studies varies widely. The CAP for Kenai NWR lists over
330 known spills and describes other potential contamination sources
from oil and gas activities. In contrast, the CAP study for Deep Fork
NWR did not list oil and gas activities as a potential source of
contamination, even though there are over 360 wells on the refuge and
the refuge's comprehensive conservation plan previously identified
concerns over oil and gas activities, including unplugged wells. The
CAP program manager stated that, in this case, FWS staff did not follow
the procedures established in the CAP manual, which requires that all
potential sources of contamination be identified.
If contaminants are identified at a refuge, FWS may conduct additional
studies through its contaminants program. Since 1988, FWS has funded
at least 33 studies at 47 national wildlife refuges nationwide that
have examined the effects of oil and gas activities.[Footnote 23] The
scope of the studies ranged from general investigations to document the
presence and concentration of a variety of contaminants, including
those associated with oil and gas activities, to specific studies to
examine the impact of oil and gas activities on particular refuges. In
some cases, contamination concerns identified in a general
investigation may lead to a more detailed study. For instance, a
contaminants survey at Hagerman NWR identified contaminants from oil
and gas activities, but the survey was insufficient to determine the
effects on fish and wildlife. A later study determined that brine and
oil contaminant levels did not appear to be of concern.
In addition to conducting its own studies, FWS uses studies conducted
by other government agencies and universities, in some cases at its
request. For instance, the U.S. Geological Survey is studying the
effects of a 3-D seismic study at Sabine NWR to determine the long-term
effects of seismic activities on refuge plant species, and Drexel
University is studying the impact of an oil spill on wildlife at John
Heinz NWR, including any effects on a rare turtle species.
The lack of information on the effects of oil and gas activities on
refuge wildlife hinders FWS's ability to identify and obtain
appropriate mitigation measures and to require responsible parties to
address damages from past activities. For instance, the Chief, Division
of Environmental Quality, stated that FWS does not always know the
effects of oil and gas activities on wildlife or habitat and,
therefore, does not know what actions should be required of operators
to reduce those effects. Lack of sufficient information has also
hindered FWS's efforts to identify all locations with past oil and gas
activities and to require responsible parties to address damages. FWS
does not know the number or location of all abandoned wells and other
oil and gas infrastructure or the threat of contamination they pose
and, therefore, its ability to require responsible parties to address
damages is limited. While recognizing the value of this type of
information, the Chief, Division of Environmental Quality, said that in
some cases FWS lacked the budget to fund environmental studies and
that, in other cases, the cost of obtaining the information was
disproportionate to its management value. In those cases where FWS
has performed studies, the information has proved valuable. For
example, FWS funded a study at some refuges in Oklahoma and Texas to
inventory locations containing oil and gas infrastructure, to determine
if they were closed legally, and to document their present condition.
FWS intends to use this information to identify cleanup options with
state and federal regulators. If this effort is successful, FWS may
conduct similar studies on other refuges. In other cases, refuges have
requested studies that have not been funded. For instance, proposals to
examine the effects of oil and gas activities on a wetland management
district in Montana and to identify unknown oil and gas locations at
Kenai NWR have not been approved, in part, due to lack of funds. In the
case of Kenai NWR, refuge staff said that current operators may be
responsible for cleaning up historic sites but that FWS had to identify
the sites before it could make this determination.
FWS Management and Oversight of Oil and Gas Activities Varies Widely:
FWS's management and oversight of oil and gas activities varies widely
from refuge to refuge. Effectively managing these activities across the
refuge system would entail, at a minimum, identifying the risks posed
by the activities, establishing operating conditions to minimize
damages, and monitoring the activities with trained staff to ensure
compliance. While some refuges have adopted comprehensive management
and oversight practices, others have done little. Variation in refuges'
management and oversight of oil and gas activities stems from
differences in FWS's regulatory authority depending upon the nature of
the mineral rights and from inadequate guidance, resources, and
training for refuge staff. In addition, on a related management issue,
FWS's policy requiring a complete and thorough assessment of
potentially contaminated property prior to acquisition is not always
adhered to because of inconsistent interpretation of the requirements
by FWS, placing the federal government at risk of assuming unknown
cleanup costs in the future.
Management and Oversight Varies Among Refuges:
FWS's objective in managing oil and gas on refuge lands is to protect
wildlife habitat and other resources while allowing oil and gas
operators to exercise their mineral rights. Meeting this objective
requires basic management controls. Under the Federal Manager's
Financial Integrity Act of 1982,[Footnote 24] we have issued management
control standards that apply to all federal agencies.[Footnote 25]
These standards require agencies to identify risks, develop procedures
to protect against these risks, and monitor adherence to the
procedures. For refuges, doing so would mean identifying the nature and
extent of oil and gas activities on a refuge and the risks they pose to
refuge resources, adopting risk-reduction procedures such as issuing
access permits with conditions to protect refuge resources and securing
financial assurance that reclamation will occur, and overseeing oil and
gas operations with trained and dedicated staff to ensure compliance
with laws and permits.
The refuges we examined varied in the extent to which they identified
risks, adopted procedures to minimize those risks, and monitored oil
and gas activities. First, some refuge staff did not have complete
information on the extent of oil and gas activities occurring on
their refuges. For example, at Deep Fork NWR refuge staff estimated
that there were 600 or more abandoned wells but knew the location of
very few of these wells. Further, as noted earlier, only 67 of the
155 refuges with oil and gas activities and 10 of the 16 refuges we
visited (see table 6) had completed CAP studies identifying the
possible sources and types of contamination on the refuges. In
contrast, at Kenai NWR refuge staff had detailed information on oil and
gas wells and activities on the refuge, had completed an exhaustive CAP
study, and was completing an Environmental Impact Statement on the
effects of oil and gas activities.[Footnote 26]
Table 6: Elements of Management and Oversight Found at Refuges Visited:
[See PDF For image]
Source: GAO.
[A] The Bureau of Land Management or the Army Corps of Engineers issues
these federal permits.
[B] The Bureau of Land Management requires these federal bonds.
[End of table]
Second, permits, which grant oil and gas operators access to specified
areas of a refuge and contain conditions to protect refuge resources,
such as seasonal or vehicle restrictions, to protect air quality, soil,
water and wildlife habitat, were applied to varying degrees at 11 of
the 16 refuges we visited.[Footnote 27] FWS can require permits if the
mineral rights are federally owned, the property deed allows it to, or
the operator voluntarily agreed to one. In the other five cases, refuge
staff did not believe they had authority to require permits. In
addition, five refuges obtained financial assurance in the form of
bonds for the future costs of reclamation, or rely on bonds
administered by another federal agency. The other 11 refuges rely
instead on state bonds, which are allowed under FWS guidance, but may
provide different degrees of financial assurance than federal bonds.
For example, the bonds in some states may or may not cover damages
caused by oil and gas activities if the effects are considered to be
reasonable impacts to the land. Reasonable impacts are not consistently
defined among states because impacts to property are determined by what
is usual and customary practice in the area.
Finally, we found little correlation between the scale of oil and gas
activities on refuges and the presence of dedicated staff to oversee
them. Two of the refuges we visited have a fully dedicated staff person
to oversee oil and gas operators--two of the only three in the entire
refuge system. These two refuges in Louisiana collect fees from
operators to help pay for these staff. In contrast, refuges with
greater levels of activity do not have dedicated staff.
FWS's Authority to Require Permits Varies, Depending on the Nature
of the Mineral Rights:
FWS's legal authority to require oil and gas operators to obtain
permits varies considerably, depending upon the nature of the mineral
rights. Permits granting access to specified areas of a refuge can be
used to establish reasonable operating conditions for private mineral
owners to exercise their rights while protecting refuge
resources.[Footnote 28] Variation in authority to require such permits,
and the uncertainty that this sometimes creates among refuge staff,
partly accounts for differences in management and oversight we found
at refuges. At one end of the spectrum, FWS has broad authority to deny
or regulate access to oil and gas on wildlife refuges when the federal
government owns the mineral rights. Under Department of the Interior
regulations, access to federal mineral rights underlying refuges
requires the approval of the Secretary of the Interior with the
concurrence of FWS as to the time, place, and nature of the
activities.[Footnote 29] These regulations also prohibit leasing of
federal minerals on refuges outside of Alaska, except in cases where
federal minerals are being drained by operations on property adjacent
to the refuges.
In contrast, FWS's authority is not nearly as broad or as clear with
respect to private owners of mineral rights. FWS's authority to require
permits from private mineral owners depends on the nature of the
private rights and, in some cases, whether the property deed contains
specific language. Private mineral rights may be either "reserved" or
"outstanding." Reserved rights are created when the property owner
retains the mineral rights at the time that the surface property is
transferred to the federal government. Outstanding rights are created
when the mineral rights are severed from the surface lands prior to the
surface property's transfer to the federal government and, thus, a
third party owns the rights. FWS's authority to regulate oil and gas
activities of private owners of reserved mineral rights is limited
under current law.[Footnote 30] The Department of the Interior takes
the position, with which we agree, that FWS can require permits for
reserved rights only if the deed transferring surface ownership to the
federal government contains language that subjects these rights to
permitting requirements. The department's position was first expressed
in a 1986 opinion by the Office of the Solicitor, which, that office
recently advised us, continues to reflect the department's position.
The department's position is largely based on a section of the
Migratory Bird Conservation Act that makes reserved rights subject to
government regulation if the deed includes specific requirements, such
as permitting requirements, or states that the rights are subject to
regulations prescribed by the Department "from time to time."[Footnote
31] Any expansion of FWS's authority over the owners of reserved
mineral rights, to include cases in which deeds do not contain such
provisions, would thus require a change in the law.
By contrast, it does not appear that the Department of the Interior has
taken a formal position, and the Solicitor's Office recently declined
to take a position, regarding FWS's authority to require a permit for
private owners of outstanding mineral rights. The Solicitor's Office
advised us that it would only provide an opinion on FWS's authority
over outstanding mineral rights if FWS requested one. Nonetheless, we
believe that FWS has broad general authority, similar to that of the
Forest Service and the National Park Service, to require owners
exercising outstanding mineral rights to obtain:
permits that contain conditions to protect a refuge and its wildlife.
Both amendments to the National Wildlife Refuge System Administration
Act of 1966 (1966 Act) and court decisions since the department issued
its 1986 opinion support this conclusion. The National Wildlife System
Improvement Act of 1997[Footnote 32] (1997 Act) amended the 1966 Act to
provide for a more effective process for determining which secondary
uses would be compatible with refuges and to allow refuges to be
managed more like national forests and parks.[Footnote 33] The 1997 Act
established as a mission of the National Wildlife Refuge System
"conservation, management, and where appropriate, restoration of
[fish and wildlife] for the benefit of present and future generations
of Americans." In separate cases involving the Forest Service and the
National Park Service, federal courts relied on language similar to
that in the 1997 Act to find that these agencies had authority to
require private owners of outstanding mineral rights to obtain permits
before conducting oil and gas activities.[Footnote 34] We believe the
same conclusion follows with respect to FWS's authority.
As a result of these differences in legal authority, there is a
considerable gap in FWS's management and oversight of oil and gas
activities, but neither FWS nor we know precisely at how many refuges
this is occurring. Because some refuges may consist of hundreds of
individual deeds, it is not possible without considerable investigation
to determine the relative prevalence of reserved and outstanding
mineral rights or the extent to which property deeds allow FWS to
require owners of reserved mineral rights to obtain a permit, according
to FWS officials. FWS officials also said that differences in FWS's
authority to require permits do not provide for a consistent way of
managing and overseeing oil and gas activities.
Refuges Lack Sufficient Guidance, Resources, and Training to Manage
and Oversee Oil and Gas Activities:
In addition to FWS's inconsistent or undefined authority to require
permits and oversee oil and gas activities, FWS cannot improve its
management and oversight of those activities without better guidance,
resources, and training. According to refuge managers and officials in
the Department of the Interior's Office of the Solicitor, national
guidance is insufficient for refuge staff to know what authority they
have to manage oil and gas activities, or how to carry out that
authority. To supplement the national guidance, three of FWS's seven
regions have developed more detailed guidance to assist in managing and
overseeing oil and gas activities. For instance, while the national
guidance describes only FWS's authority to require permits, guidance in
Regions 2 and 6 provides specific examples of conditions the refuge
manager should include in a permit to protect refuge resources. Staff
at Sabine NWR have also drafted, in conjunction with headquarters
staff, more detailed national guidance on managing and overseeing oil
and gas activities, including a detailed description of FWS's authority
to require permits and many specific conditions to include in permits.
However, FWS has not approved this draft guidance.
Refuge staff we interviewed also cited a lack of staff resources as an
obstacle to properly managing oil and gas activities because staff do
not have time to become familiar with federal and state laws or manage
and oversee oil and gas operations. For example, when FWS purchased
property for Deep Fork NWR, the property deed contained assurances that
FWS would be able to issue permits governing private mineral rights,
yet that information was never conveyed to refuge staff. To determine
FWS's permitting authority, refuge staff would have to research each
individual property deed. Refuge staff said that they do not have time
to do this research because they must address other management
concerns, such as law enforcement. In contrast, Sabine NWR has a staff
person dedicated to managing oil and gas activities. As a result, this
person has sufficient time to become familiar with applicable laws and
to work with operators and state regulators to manage and oversee oil
and gas activities to reduce their effects on the refuge. This
oversight has encouraged the operator to identify and restore sites
damaged by past oil and gas activities.
Refuges that have access to their own funding mechanisms to recover
damages are better able to manage and oversee oil and gas activities.
It is standard industry practice for operators' conducting seismic
activities to pay exploratory fees to surface landowners. However,
only refuges in Louisiana and Texas have authority to assess and retain
such fees to cover potential damages caused by seismic
activity.[Footnote 35] Refuges in Louisiana routinely collect these
fees to aid management and oversight and fund restoration efforts, but
Region 2 has retained existing policy preventing refuges in Texas from
assessing these fees. To address this lack of consistency, FWS
headquarters officials told us they are drafting guidance to clarify
how these regions should apply their authority to collect and retain
fees. One of the refuges that collects these fees is Sabine NWR, which
uses these fees to fund a staff person specifically dedicated to the
management and oversight of oil and gas activities and to fund
mitigation projects to reduce the effect of oil and gas operations.
Figure 10 shows a recent mitigation project, funded by oil and gas
operators at Sabine NWR, that is designed to restore a marsh damaged by
saltwater intrusion due in part to earlier oil and gas activities.
Officials in the Department of the Interior's Office of the Solicitor
support the use of fees as a more efficient mechanism than litigation
to compensate for damages.
Figure 10: Marsh Restoration Project Funded by Oil and Gas Operators at
Sabine NWR (La.):
[See PDF for image]
[End of figure]
Trained staff are integral to effective oversight, yet refuge staff we
met with said their principal duties and training as wildlife managers
do not prepare them for managing oil and gas activities. FWS has
offered only one workshop in the last 10 years for refuge staff
nationwide that is specific to managing oil and gas activities
on refuges. This 3-day workshop in June 2001, attended by 36 FWS
officials, provided information on possible sources of spills, effects
of oil on wildlife, enforcement avenues, and damage recovery; however,
there was limited discussion of FWS's regulatory authority. Refuge
staff lack training on standard industry practices, state and federal
laws, and identification of oil-and gas-related problems. For example,
at Atchafalaya NWR, the refuge manager has not been able to enforce
special use permits, citing a lack of training about applicable state
and federal laws.
Acquired Property Is Not Always Adequately Assessed for Contamination:
FWS has not always thoroughly assessed property for possible
contamination from oil and gas activities prior to its acquisition. The
FWS manual requires a thorough investigation of potential contamination
prior to acquisition of any property so that the full present and
future costs of cleanup can be determined. However, some FWS regions
have interpreted the guidance more narrowly than others. As a result,
FWS has not always conducted a thorough investigation of properties to
be acquired, resulting in unexpected future cleanup costs.
FWS's guidance requires a complete environmental site assessment to
determine "the likelihood of the presence of hazardous substances or
other environmental problems associated with the property and any
remediation or other clean up costs." According to FWS contaminant and
realty officials, a thorough investigation as required by the FWS
manual would include an assessment of both the surface and subsurface
properties for contamination. Some regions consistently conduct
adequate assessments, while other regions' investigations are not as
thorough. For example, Region 6 assesses both the subsurface and
surface properties for contamination, even when acquiring only the
surface portion. In two cases, Region 6 did not acquire property, even
when offered as a donation, because of subsurface contamination from
oil and gas activities. In contrast, FWS Regions 2, 3, and 4 do not
always thoroughly investigate all properties for contamination prior to
acquisition. For example, not examining the subsurface soils for
contamination or investigating further if there is some indication of
the presence of contaminants. FWS realty officials told us that the
acquisition guidance needs to be clarified and that the oversight of
regional implementation needs to be improved to ensure that all new
property is thoroughly investigated for contamination.
In one instance, FWS acquired property that is contaminated from oil
and gas activities and is now paying unexpected cleanup costs because
staff did not conduct an adequate assessment of the subsurface property
prior to acquisition. At the Patoka River NWR in Indiana (Region 3),
during an acquisition, FWS staff conducted an initial contamination
investigation and used a state certification of well closure as
assurance that the land was cleaned and closed and did not investigate
further, even though they were aware that the land had contained
oil wells and an oil storage facility. After acquiring the property,
FWS found that large amounts of soil were contaminated with oil. FWS
has thus far spent $15,000 and a local conservation group spent another
$43,000 cleaning up contaminated soil.
Conclusions:
The National Wildlife Refuge System is a national asset established
principally for the conservation of wildlife and habitat. While
federally owned mineral rights underlying refuge lands are generally
not available for oil and gas exploration and production, that
prohibition does not extend to the many private parties that own
mineral rights underlying refuge lands. The scale of these activities
on refuges is such that some refuge resources have been diminished,
although the extent is unknown without additional study.
Some refuges have adopted practices--for example, developing data
on the nature and extent of activities and their effects on the refuge,
overseeing oil and gas operators, and training refuge staff to better
carry out their management and oversight responsibilities--that limit
the impact of these activities on refuge resources. If these practices
were implemented throughout the agency, they could provide better
assurance that environmental effects from oil and gas activities are
minimized. In particular, in some cases, refuges have issued permits
that establish operating conditions for oil and gas activities, giving
the refuges greater control over these activities and protecting refuge
resources before damage occurs. However, FWS does not have a policy
requiring owners of outstanding mineral rights to obtain a permit,
although we believe FWS has this authority, and FWS can require owners
of reserved mineral rights to obtain a permit if the property deed
subjects the rights to such requirements. Expanding or confirming FWS's
authority to require reasonable permit conditions and oversee oil and
gas activities, including cases where mineral rights have been reserved
and the property deed does not already subject the rights to permit
requirements, would strengthen and provide greater consistency in FWS's
management and oversight. Such a step could be done without infringing
on the rights of private mineral owners. Finally, FWS's land
acquisition guidance is unclear and oversight is inadequate, thereby
exposing the federal government to unexpected cleanup costs for
properties acquired without adequately assessing contamination from oil
and gas activities.
Recommendations for Executive Action:
To improve the framework for managing and overseeing oil and gas
activities on national wildlife refuges, the Secretary of the Interior
should direct the Director of the Fish and Wildlife Service to take the
following steps:
* Collect and maintain better data on the nature and extent of oil and
gas activities and the effects of these activities on refuge resources.
* Determine what level of staffing is necessary to adequately oversee
oil and gas operators and seek necessary funding to meet those needs,
through appropriations, the authority to assess fees, or other means.
* Ensure that staff are adequately trained to oversee oil and gas
activities.
* Clarify guidance and better oversee FWS's land acquisition process so
that all hazardous substances and environmental problems and future
cleanup costs are fully identified prior to acquisition and unexpected
costs are avoided.
As part of the process of improving the framework for managing and
overseeing oil and gas activities on national wildlife refuges, we
further recommend that the Secretary of the Interior and the Director
of the Fish and Wildlife Service work with the Department of the
Interior's Office of the Solicitor to (1) determine FWS's existing
authority to issue permits and set reasonable conditions regarding
outstanding mineral rights, reporting the results of its determination
to Congress, and (2) seek from Congress, in coordination with
appropriate Administration officials, including those within the
Executive Office of the President, any necessary additional authority
over such rights, and over reserved mineral rights, so that FWS can
apply a consistent and reasonable set of regulatory and management
controls over all oil and gas activities occurring on national
wildlife refuges to protect the public's surface interests.
Matter for Congressional Consideration:
In light of the Department of the Interior's perceived limitation to
its ability to seek expanded legislative authority over private mineral
rights, Congress may wish to consider providing that authority.
Ensuring that FWS has legal authority to issue permits to holders of
both outstanding and reserved mineral rights would improve FWS's
ability to consistently regulate and oversee oil and gas operations on
wildlife refuges.
Agency Comments and Our Evaluation:
We provided an opportunity for the Department of the Interior and
U.S. Fish and Wildlife Service officials to review a draft of this
report. The comments of the department as expressed by the Acting
Assistant Secretary for Fish and Wildlife and Parks were mixed. The
department agreed that FWS's acquisition policy and guidance should be
improved. However, the department was silent on our recommendations
that the FWS should collect and maintain better data on oil and gas
activities and their effects and that it should ensure that staff are
adequately trained to oversee oil and gas activities. We continue to
believe these recommendations are still warranted. The department did
raise a concern in regards to two of our recommendations. First, the
department questioned whether hiring additional dedicated staff would
be the most cost-effective solution to improving oversight. However,
the department apparently misinterpreted our recommendation for FWS to
determine what level of staffing necessary to oversee these activities
as a call to hire additional dedicated staff. If the department
determines that there are more cost-effective means to ensure adequate
staffing, such as the use of contractors or temporary staff, it could
pursue those actions and be responsive to this recommendation. Second,
while the department was silent on whether it would review the FWS's
authority to regulate surface access to refuges for owners of
outstanding mineral rights, the department did raise concerns about
GAO's recommendation that it seek additional authority from Congress to
regulate reserved mineral rights. According to the department, it would
be unconstitutional for it (as an executive branch department) to make
such a request to Congress, because doing so would infringe upon the
President's authority to recommend legislation to Congress under the
U.S. Constitution's Recommendations Clause. We fully anticipated in
making this draft recommendation that the department would coordinate
its legislative proposals with the President. In order to make this
explicit, we clarified the recommendation to recognize that the
department should coordinate its legislative request to Congress
through appropriate Administration officials, including those within
the Executive Office of the President.
Further, as a legal matter, while the Recommendations Clause explicitly
provides for the President to make recommendations to Congress, it
does not deny that same freedom to others. The courts have ruled that
". . . anyone can propose legislation."[Footnote 36]
The department also disagreed with our characterization of lost condor
habitat at Hooper Mountain NWR in California. The department asked that
we cite the source for this characterization and include additional
clarification and explanation of the effect of oil and gas activities
on the condor reintroduction program at this refuge. FWS itself, in
1980, made the determination that 70 percent of critical condor habitat
was lost due to oil and gas development at Hopper Mountain NWR.
However, this calculation included both refuge and off-refuge lands.
Considering only refuge lands, lost habitat totaled 63 percent and the
report has been revised accordingly.
In an attachment to the letter, the Department of the Interior raised
three additional concerns with our report. These involve our
characterizations of FWS's land acquisition practices, our inclusion of
oil and gas pipelines in the scope of the report, and the significance
of problems associated with oil and gas activities. First, FWS
concurred that its acquisition policy and guidance could be improved
and that regional implementation has at times been inadequate.
Nevertheless, FWS took exception to our citing problems we found at
Patoka River NWR and with that region's adherence to established policy
in conducting its site assessment. However, our review clearly
indicated that the FWS failed to conduct additional contamination
investigation of lands that FWS officials knew had supported oil and
gas extraction and storage, as required by their policy. As a result,
the FWS acquired lands that are contaminated and has incurred expenses
to remediate that contamination.
Second, the department's Office of the Solicitor raised a concern that
including oil and gas pipelines as an oil and gas activity overstates
the prevalence of oil and gas activities. We disagree; pipeline leaks
have contributed to refuge contamination and affected refuge operations
in other ways. We believe that inclusion of oil and gas pipelines
on refuges is an important factor in assessing the overall scale of oil
and gas activities on refuges. Nevertheless, we have added additional
information to the report that allows readers to differentiate among
the types of activities on refuges, including pipelines.
Third, the department's Office of Policy Analysis expressed the view
that our reporting of refuge-based oil and gas activities not
previously known to FWS overstated the problem because we did not link
these activities to "significant detrimental" effects. The department
also suggested that any problems associated with oil and gas activities
on refuges should be considered relative to other problems faced by
these refuges. However, our report already states that FWS has not
conducted a cumulative assessment of the effects of oil and gas
activities on individual refuges or the refuge system as a whole.
Identifying the presence of these activities should be the first step
toward any such assessment. Comparing these impacts relative to other
threats to refuges is outside the scope of this report.
Finally, the department included a number of technical comments from
the FWS and various department offices that have been incorporated
within the report as appropriate. The Department of the Interior's
letter and our comments on the letter appear in appendix V.
We conducted our work from June 2002 through March 2003 in accordance
with generally accepted government auditing standards. Appendix IV
contains details of our scope and methodology.
:
As agreed with your offices, unless you publicly announce the contents
of this report earlier, we plan no further distribution until 30 days
from the report date. At that time, we will send copies of this report
to the Secretary of the Interior and the Director of the U.S. Fish and
Wildlife Service. In addition, the report will be available at no
charge on the GAO Web site at [Hyperlink, http://www.gao.gov] http://
www.gao.gov. If you have any questions about this report, please call
me at (202) 512-3841 or William Swick at (206) 287-4851. Key
contributors to this report are listed in appendix VI.
Barry T. Hill
Director, Natural Resources and Environment:
Signed by Barry T. Hill:
[End of section]
Appendixes:
Appendix I: Refuges with Oil and Gas Activities:
[See PDF for image]
Sources: Premier Data Services (well data), FWS (exploration and
pipeline data), and DOT (pipeline data).
[End of table]
[End of section]
Appendix II: Summary of Oil and Gas Activities at Refuges Visited:
Refuge (State/FWS region): Hopper Mountain NWR (Calif./1); Nature and
extent of oil and gas activity: * 17 wells (15 active); * 3 production
pads; * Unknown number of flow lines; Environmental effects: Feeding
habitat for endangered California condors on refuge reduced by
63 percent. Minor soil contamination from oil spills; Management and
oversight: County issues conditional use permits and works closely with
the Fish and Wildlife Service (FWS)..
Refuge (State/FWS region): Deep Fork NWR (Okla./2); Nature and extent
of oil and gas activity: * 362 wells; * Unknown number of flow lines;
Environmental effects: Old and unused infrastructure and numerous
unplugged wells. Brine spills have killed vegetation; Management and
oversight: Although the property deed stipulates that a special use
permit and bond are required, the refuge does not require permits or
bonds..
Refuge (State/FWS region): Hagerman NWR (Tex./2); Nature and extent of
oil and gas activity: * 191 wells (98 active); * 5 production pads; * 2
transmission lines and several flow lines; Environmental effects: Old
and unused infrastructure and numerous unplugged wells; Management and
oversight: All oil and gas activities are permitted through the Army
Corps of Engineers with FWS input..
Refuge (State/FWS region): Anahuac NWR (Tex./2); Nature and extent of
oil and gas activity: * 66 wells (50 active); * 3 production pads; * 3
transmission lines, numerous flow lines; Environmental effects: Oil
spills have killed wildlife and brine spills have killed vegetation.
Abandoned infrastructure, including flow lines and storage tanks remain
at site; Management and oversight: Refuge sometimes issues voluntary
permits. Do not require operators to post bonds, but in one case, has
collected fees for damage that exceeded the conditions of the special
use permit..
Refuge (State/FWS region): McFaddin NWR (Tex./2); Nature and extent of
oil and gas activity: * 105 wells (76 active); * 3 production pads; * 5
major transmission lines; Environmental effects: Soil and groundwater
contamination from oil spills. Abandoned infrastructure remains at
site; Management and oversight: Refuge issues voluntary special use
permits with conditions to protect refuge resources..
Refuge (State/FWS region): Patoka River NWR (Ind./3); Nature and extent
of oil and gas activity: * 54 wells; * 3 transmission lines, numerous
flow lines; Environmental effects: Soil and water contamination from
oil spills. Abandoned infrastructure remains at site; Management and
oversight: Refuge does not require voluntary use permits or bonds..
Refuge (State/FWS region): Delta NWR (La./4); Nature and extent of oil
and gas activity: * 338 wells (178 active); * 2 fields, each with
production facilities; * 6 transmission lines and large storage
facility; Environmental effects: Sediment contaminated by oil spills.
Saltwater intrusion due to subsidence. Abandoned infrastructure remains
at the site; Management and oversight: Refuge issues special use and
right-of-way permits with conditions imposed by FWS and collects
mitigation fees. One staff dedicated to oversight activities..
Refuge (State/FWS region): Atchafalya NWR (La./4); Nature and extent of
oil and gas activity: * 37 wells (2 active); * 3 production pads; * 5
transmission lines and numerous flow lines; Environmental effects:
Brine spills have killed vegetation. Old and unused infrastructure,
including storage tanks, remains at the site; Management and
oversight: Although the property deed requires a special use permit and
an approved plan of operations, the refuge has not requested a plan of
operations. In the past, the refuge has issued special use permits, but
the current operator refuses to agree to their conditions..
Refuge (State/FWS region): Sabine NWR (La./4); Nature and extent of oil
and gas activity: * 59 wells (8 active); * 4 production pads with
storage and separation facilities; * 9 transmission lines (100 miles)
and 40 active flow lines (50 miles); Environmental effects: Pipeline
spill caused wildlife fatalities and contamination. Habitat loss from
saltwater intrusion and construction of roads, canals, and other
facilities. Habitat fragmentation has contributed to increased number
of predators; Management and oversight: The refuge collects fees from
operators to fund full-time oversight position. Voluntary permits
issued to manage operator activities..
Refuge (State/FWS region): D'Arbonne NWR (La./4); Nature and extent of
oil and gas activity: * 139 wells (51 active); * 1 storage and
injection facility; * 5 transit pipelines (75 miles) and numerous flow
lines (199 miles); Environmental effects: Soil and vegetation damage
from brine spills and old disposal pits. Mercury contamination.
Numerous abandoned wells remain at the site; Management and oversight:
The refuge does not issue permits for any of the gas activities and
relies on operator cooperation..
Refuge (State/FWS region): Upper Ouachita NWR (La./4); Nature and
extent of oil and gas activity: * 1,120 wells (908 active); * No
production pads; * 13 transmission lines (31 miles) and numerous flow
lines (313 miles); Environmental effects: Soil and vegetation damage
from brine spills and old disposal pits. Mercury contamination.
Numerous abandoned wells remain at the site; Management and oversight:
The refuge does not issue permits for any of the gas activities and
relies on operator cooperation..
Refuge (State/FWS region): John Heinz NWR (Penn./5); Nature and extent
of oil and gas activity: * 10 transmission pipelines; Environmental
effects: Large pipeline spill resulting in wildlife deaths and soil and
sediment contamination; Management and oversight: The refuge issues
permits for maintenance activities..
Refuge (State/FWS region): Medicine Lake NWR/WMD (Mont./6); Nature and
extent of oil and gas activity: * 4 wells (2 active); * 2 production
pads; * Numerous flow lines; Environmental effects: Minor soil
contamination from oil spills; Management and oversight: The refuge
staff have developed regional management policy and attach conditions
to federal permits. The refuge assesses a fee for seismic activities..
Refuge (State/FWS region): J. Clark Salyer NWR and WMD (N.D./6); Nature
and extent of oil and gas activity: * 29 wells (1 active); * 2
production pads; * Numerous flow lines; Environmental effects: Unknown
soil contamination from oil spills; Management and oversight: The
refuge staff have developed regional management policy and attach
conditions to federal permits. The refuge assesses a fee for seismic
activities..
Refuge (State/FWS region): Upper Souris NWR (N.D./6); Nature and extent
of oil and gas activity: * 10 wells; * 1 production pad; * Numerous
flow lines; Environmental effects: Minor soil contamination from oil
spills; Management and oversight: The refuge staff have developed
regional management policy and attach conditions to federal permits.
The refuge assesses a fee for seismic activities..
Refuge (State/FWS region): Kenai NWR (Alaska/7); Nature and extent of
oil and gas activity: * 164 wells (121 active); * 60 production pads; *
Numerous flow lines; Environmental effects: Soil and water
contamination from numerous oil spills. Mercury and polychlorinated
biphenyl contamination. Lost habitat from infrastructure development;
Management and oversight: The refuge issues right of way and special
use permits and requires bonds..
Source: GAO.
[End of table]
[End of section]
Appendix III Analysis of Legal Authority of the Fish and Wildlife
Service to Impose Prospective Permit Requirements:
The Fish and Wildlife Service's current authority to regulate,
prospectively, the oil and gas activities of private owners of
"reserved" and "outstanding" mineral rights[Footnote 37] on national
wildlife refuges (and those who obtain mineral rights from these
private owners) is limited in a number of ways.[Footnote 38] FWS's
authority over owners of reserved mineral rights is limited by statute,
to those instances in which the deed transferring the land from the
mineral rights owner to the federal government includes language either
requiring permits or requiring compliance with regulations the
Department of the Interior may adopt in the future, including
permitting regulations. FWS's authority over owners of outstanding
mineral rights is limited in the sense that FWS's regulations do not
currently require permits. Two of FWS's sister land management
agencies--the National Park Service and the United States Forest
Service--have regulations that require outstanding mineral rights
owners to obtain permits before engaging in oil and gas activities on
federal lands they manage.[Footnote 39] FWS, on the other hand, has no
such regulations. As discussed below, while it appears that the
Department of the Interior has not taken a formal position on whether
FWS has legal authority to promulgate such regulations, we conclude it
has such authority, under its statutes and related case law.
Reserved Rights:
The Department of the Interior believes, and we agree, that FWS has
legal authority to require private owners of reserved mineral rights
located within "acquired federal refuges" to obtain "entry permits"
only in limited circumstances, in order to obtain access to the refuge
for minerals exploration and removal. The department's position was
originally set out in a 1986 legal opinion issued by the department's
Office of the Solicitor (1986 Opinion),[Footnote 40] and the office
recently advised us that the 1986 Opinion continues to reflect the
department's position. The 1986 Opinion concluded that FWS generally
lacks statutory or other authority to require entry permits for
reserved rights owners and can do so only when the deed transferring
the surface property to the federal government has included either
specific permitting requirements or language subjecting the exercise of
the reserved mineral rights to regulations promulgated by the
department, including permitting regulations. The department's
position is based on language in the Migratory Bird Conservation Act
that was added by amendment in 1935, making reserved rights subject to
requirements specifically set out in the deed or, if the deed so
states, to regulations prescribed "from time to time" by the Secretary
of the Interior.[Footnote 41] If the deed does not contain such
provisions, the exercise of the reserved rights cannot be subjected to
permitting requirements.
As the 1986 Opinion explains, prior to the 1935 amendment, the
Migratory Bird Conservation Act had made all reserved rights subject to
regulations that were prescribed by the department "from time to
time."[Footnote 42] The House Report associated with the 1935 amendment
explains that "some owners of very desirable tracts are unwilling to
convey [property] on such indefinite and uncertain terms as regulations
made 'from time to time.' ''[Footnote 43] The purpose of the change was
to provide those who reserved rights in lands they transferred to the
United States with some contractual certainty, and to protect them from
being required to abide by permitting regulations that were not in
effect when the deed was issued.[Footnote 44]
Outstanding Rights:
The foregoing limits in the Migratory Bird Conservation Act on how the
department may regulate reserved mineral rights do not apply to the
department's regulation of outstanding mineral rights. A number of
other legal authorities in related areas indicate, in our view, that
FWS has statutory authority to regulate the exercise of outstanding
mineral rights on federal lands.
In Dunn McCampbell Royalty Interest, Inc. v. National Park Service,
964 F. Supp. 1125 (S.D. Tex. 1995), aff'd on other grounds, 112 F.3d
1283 (5th Cir. 1997), the court ruled that the National Park Service
has authority to reasonably regulate private owners' access to their
oil and gas interests located beneath park system lands, by requiring
approval of a plan of operations before commencement of exploration or
production activities. The court relied on language in the National
Park Service Organic Act directing the Park Service to "protect and
regulate" national parks so as to "conserve the scenery and the natural
and historic objects and the wildlife therein and to provide for the
enjoyment of the same in such manner and by such means as will leave
them unimpaired for the enjoyment of future generations," as well as
language directing the Department of the Interior:
to issue regulations "as . . . deem[ed] necessary or proper for the use
of the parks . . . under the jurisdiction of the National Park
Service."[Footnote 45]
Similarly, in Duncan Energy Co. v. United States Forest Service,
50 F.3d 584 (8th Cir. 1995), the Eighth Circuit court ruled that
although the Forest Service may not completely deny access to private
owners of mineral interests located within National Forest System
lands, the Forest Service may impose reasonable conditions on the use
of the federally owned surface and thus may require mineral owners to
obtain approval before exploring for or developing minerals. The court
relied on language in the Bankhead-Jones Farm Tenant Act that directs
the Department of Agriculture (the Forest Service's parent agency) "to
develop a program of land conservation and land utilization" and to
issue regulations necessary to "regulate the use and occupancy of
property acquired [for the National Forest System] in order to conserve
and utilize it."[Footnote 46] The court also relied on the Forest
Service's "special use" regulations providing that "[a]ll uses of
National Forest System lands . . . are designated 'special uses' [and
must be approved by an] authorized officer.[Footnote 47]
The statutes addressed in Dunn McCampbell and Duncan bear a number of
similarities to the National Wildlife Refuge System Administration Act
(Refuge System Administration Act), which governs the National Wildlife
Refuge System. Notably, language added to the Refuge System
Administration Act by the National Wildlife Refuge System Improvement
Act of 1997 is very similar to the language of the National Park
Service Organic Act relied upon by the Dunn McCampbell court. As
amended in 1997, the Refuge System Administration Act now provides that
the mission of the NWRS is to administer lands for the "conservation,
management, and where appropriate, restoration of [fish and wildlife]
for the benefit of present and future generations of Americans" and
directs the Secretary of the Interior to "ensure that the biological
integrity, diversity, and environmental health of the System are
maintained for the benefit of:
present and future generations of Americans."[Footnote 48] The Refuge
System Administration Act also explicitly authorizes the Secretary of
the Interior to issue regulations to carry out the act.[Footnote 49]
Similarly, as in the statute relied on by the Duncan court regarding
the Forest Service's permitting authority, the 1997 amendments to the
Refuge System Administration Act added language directing the Secretary
of the Interior to "provide for the conservation of fish, wildlife, and
plants, and their habitats within the [Refuge] System."[Footnote 50]
Thus, as with the statutes at issue in Dunn McCampbell and Duncan, the
1997 amendments to the Refuge System Administration Act authorize the
Department of the Interior to manage the National Wildlife Refuge
System with the same type of policy direction and management standards
with which the Park System and the Forest System are managed, including
issuance of permitting regulations.[Footnote 51] The legislative
history of the Refuge System Administration Act confirms Congress's
concern for ecosystem and fish and wildlife conservation and for
ensuring that uses of the refuges are compatible with their
purposes.[Footnote 52] Although neither the Administration Act's 1997
amendments nor their legislative history specifically refers to
regulation of the activities of private oil and gas operators, the
overriding purpose of the amendments--providing better management to
protect the refuges--together with the reasoning of the courts
addressing similar statutes in Dunn McCampbell and Duncan indicate that
FWS has current authority to require private owners of outstanding
mineral rights to obtain permits before conducting oil and gas
operations.
:
[End of section]
Appendix IV: Scope and Methodology:
To identify the nature and extent of oil and gas activities resident
within the National Wildlife System, we relied on several sources of
information. We began with our 2001 report, which identified 77 units
with oil and gas activities based on the Fish and Wildlife Service's
reported activities in the year 2000. We used the same information
source, FWS's Refuge Management Information System (RMIS), and reviewed
exploration, production, and pipeline activities for the years 1994-
2001. This information is self-reported by refuges and, by FWS
officials' admission, incomplete. In addition, RMIS does not indicate
the scale of activities present on a refuge--for example, whether there
is one well or hundreds of wells. Therefore, we contracted Premier Data
Services of Englewood, Colorado, to provide more accurate and
comprehensive data on the extent and type of oil and gas activities
occurring on refuges. Premier maintains a national database of oil and
gas wells collected from well permit data compiled by each state's oil
and gas regulators. Premier recently contributed to a study for the
Departments of Interior, Agriculture, and Energy under the Energy
Policy and Conservation Act, providing a comprehensive review of oil
and gas resources and constraints on their development in five basins
in the interior West.
To determine the number of wells residing on FWS lands, Premier
compared a county-by-county listing of wells against a list of counties
with refuge system lands provided by FWS. For those refuges in counties
with at least one well, Premier either obtained digital maps of
the refuges' current land status from FWS or, in those cases where FWS
had not digitized the refuge boundaries, converted paper maps into
digital format. Premier then overlaid the geographic plots of wells
nationwide with the digitized maps to identify wells within refuge
boundaries and to identify wells within ½ mile outside the boundaries.
(See fig. 11 for a sample plot of the Butte Sink Wildlife Management
Area.) In addition to obtaining information on the location of oil and
gas wells, we also obtained information on the status, type, and amount
of production of oil, gas, and water (brine) from each well. We
eliminated from the database permitted wells that were not drilled,
while wells with any production in the most recent reporting period we
categorized as active; all other wells we categorized as inactive.
Figure 11: Butte Sink Wildlife Management Area (Calif.), Plot of Wells
and One-Half Mile Boundary:
[See PDF for image]
[End of figure]
To identify pipelines transiting refuge lands, we relied on the
National Pipeline Mapping System (NPMS), which is maintained by the
Office of Pipeline Safety in the Department of Transportation and on
FWS's RMIS. We overlaid the NPMS data on the 138 refuges for which we
had digital refuge boundary data because they also had wells inside or
just outside their boundaries. The FWS had not finished digitizing
refuge maps for the other refuges in the system. NPMS is based on data
reported to the Office of Pipeline Safety by pipeline owners. NPMS
includes 99 percent of the nation's hazardous liquids (including oil
and other petroleum products) pipelines and 61 percent of natural gas
pipelines in the United States. NPMS does not include local gathering
lines or pumping and storage facilities that supplement these lines. To
supplement this information, we included refuges identified in RMIS as
having transit pipelines. However, there may be other refuges with
pipelines, not recorded in NPMS, RMIS, or for which we did not have
digital maps.
As part of FWS's review of this report, they identified
additional refuges that may have oil and gas activities or updated the
status of activities at the refuges listed, but did not offer
corroborating documentation. While this information may have been more
current than the Premier or the Department of Transportation databases,
we chose to keep these data intact and did not make additional
adjustments.
We attempted to identify information regarding the overall
environmental effects of oil and gas activities on national
wildlife refuges. However, because FWS had conducted few studies and
did not have information regarding what the overall environmental
effects of oil and gas activities on refuges were and how those effects
have changed over time, we selected at least one refuge in each of
FWS's seven regions for physical inspection. In making these
selections, we attempted to choose a cross section of
refuges considering the type and scale of oil and gas activities, range
of environmental effects, and extent and type of management and
oversight. In total, we visited 16 refuges containing 1,510 active and
2,695 total oil and gas wells, about 84 percent and 61 percent,
respectively, of all oil and gas wells we identified on refuges. For a
complete list of refuges we visited, see appendix II. At each refuge
visited, we asked the refuge manager to describe the effects of oil and
gas activities on the refuge, obtained any available studies of these
effects, and visited locations of oil and gas activity selected by the
refuge manager to represent a range of effects. In addition, we
contacted state regulators and industry and environmental
representatives and reviewed state laws, FWS contaminant reports, and
scientific and industry and environmental group reports. To identify
reclamation and remediation performed at the refuges visited, we
reviewed files at each refuge, discussed actions taken with refuge
officials, and reviewed information FWS provided from its cleanup and
maintenance databases. To identify steps FWS has taken to document the
environmental effect on refuge resources, we reviewed Contaminant
Assessment Program studies and additional information FWS provided from
its contaminants database. We also discussed these efforts with FWS
officials.
To assess FWS's management and oversight of oil and gas activities in
the National Wildlife Refuge System, we obtained information on policy,
guidance, and practices from headquarters and the seven regional
offices and documented the actual practices in use at the 16 refuges we
visited. To determine the authority of the FWS to require private
mineral owners to obtain permits containing conditions to protect
refuge resources from damage and to oversee oil and gas activities, we
obtained information from the Department of the Interior's Office of
the Solicitor and reviewed the laws and regulations pertaining to the
FWS and other federal land management agencies and recent court cases
concerning private mineral rights on federal lands. We also identified
the type and amount of training the FWS staff had received and reviewed
mechanisms for funding positions to manage and oversee oil and gas
activities. In addition, we interviewed officials and obtained
documentation on FWS's coordination with, and the involvement of, other
federal and state agencies in the oversight of oil and gas activities
on refuges. Finally, we reviewed the acquisition policies and practices
used by FWS for adding lands to the refuge system, especially those
that contain current or historical oil and gas activities.
:
[End of section]
Appendix V: Comments from the Department of the Interior and
U.S. Fish and Wildlife Service:
United States Department of the Interior:
OFFICE OF THIS SECRETARY Washington, D.C. 20240:
JUL 1 8 2003:
Mr. Barry T. Hill:
Director, Natural Resources and Environment U.S. General Accounting
Office:
441 G Street, N.W. Washington, D.C. 20548:
Dear Mr. Hill:
The Department of the Interior is providing comments on the draft U.S.
General Accounting Office report entitled, "National Wildlife Refuges:
Opportunities to Improve the Management and Oversight of Oil and Gas
Activities on Federal Lands" (GAO-03-517).
We appreciate the opportunity to review the draft report. However, we
remain concerned that the review process determined by GAO (reading the
report at meetings, taking notes, and returning the reports to GAO at
the end of the meetings) was not sufficient for such a data intensive
report. Our ability to comment fully was hampered by the report review
process.
We are concerned that you are proposing to recommend that the Secretary
request new legislation relating to Service authority to manage refuge
oil and gas activities. This potentially infringes upon the President's
authority to decide whether the Executive Branch should propose
legislation. While normally recommendations from any source are only
recommendations, there are statutory requirements for the Secretary of
the Interior to provide a statement to the Congress within 60 calendar
days of receipt on what actions have been taken or what actions are
planned to implement GAO's recommendations. However, under the
Recommendations Clause of the Constitution, the question of whether any
Department should recommend legislation on any subject is solely within
the President's discretion. Accordingly, we urge you to drop or revise
your approach on this particular matter.
In addition, the report references "loss of approximately 70% of
feeding habitat for California condors at Hopper Mountain N WR as a
result of oil and gas activities." These comments require extensive
clarification, beginning with GAO documenting the basis for the 70%
figure.
Hopper Mountain NWR is approximately 2,500 acres. It was acquired in
1974, well before the condor reintroduction program began. The mineral
rights were retained by private owners.
The refuge itself represents only a minute percentage of the feeding
habitat of the condor, and was selected as the reintroduction site with
full knowledge of the possible impacts of the oil and gas activities.
It was chosen to provide a secure mountainous location under Service
control to serve as the actual site for reintroductions into the wild
and hoped-for future nesting, and not intended as a significant element
of the condors overall habitat. The condors utilize a much
wider habitat base on surrounding National Forest System and other
lands for feeding. The manager reports the oil facilities generally do
not disturb the condors, who frequently perch on them.
We recommend that this reference be deleted, as it is a dramatic-
sounding statement with little real-world relevance to the condor
recovery program. If not, we believe that it needs considerable
explanation as set forth above.
The enclosure provides specific comments from the U.S. Fish and
Wildlife Service, Office of Budget, Office of Policy Analysis, and
Office of the Solicitor. We hope our comments will assist you in
preparing the final report.
Sincerely,
Paul Hoff
Assistant Secretary for Fish and Wildlife and Parks:
Signed by Paul Hoff:
Enclosure:
GAO's Comments:
1. We provided opportunity for the Department of the Interior and the
U.S. Fish and Wildlife Service officials to review a draft of this
report. To protect against the possibility of early disclosure of the
report, we did not provide the department copies of the draft report to
retain, but did give agency officials ample opportunity to review and
take notes on the draft. We allowed department and FWS officials to
review a draft of the report in Washington, D.C; Denver; Atlanta; and
Portland without restriction as to the time, number of personnel, or
note-taking.
2. See our response in Agency Comments and Our Evaluation section on
page 44.
3. See our response in Agency Comments and Our Evaluation section on
page 45.
[End of section]
Appendix VI: GAO Contacts and Acknowledgments:
GAO Contacts:
Barry T. Hill (202) 512-3841 William R. Swick (206) 287-4851:
Acknowledgments:
In addition to the names above, Mary Acosta, Paul Aussendorf, Robert
Crystal, Sandra Davis, Jonathan Dent, Doreen Feldman, Chalane Lechuga,
John Mingus, Mehrzad Nadji, and Cynthia Norris made key contributions
to this report.
(360210):
:
FOOTNOTES
[1] U.S. General Accounting Office, U.S. Fish and Wildlife Service:
Information on Oil and Gas Activities in the National Wildlife Refuge
System, GAO-02-64R (Washington, D.C.: Oct. 31, 2001). The National
Wildlife Refuge System, at that time, consisted of 530 refuges as well
as 37 wetland management districts, which are management entities
created to administer waterfowl production areas. In this report, we
use the term "refuge" to refer to any unit of the National Wildlife
Refuge System, including national wildlife refuges, wildlife ranges,
wildlife management areas, and waterfowl production areas.
[2] U.S. General Accounting Office, Standards for Internal Control in
the Federal Government, GAO/AIMD-00-2131 (Washington, D.C.:
Nov. 1999).
[3] Waterfowl Production Areas, which were incorporated into the refuge
system in 1966, are lands acquired by the FWS using Federal Duck Stamp
monies for the preservation of wetland and grassland areas critical to
waterfowl and other wildlife. A majority of these lands are located in
the prairie wetlands of the Dakotas, Minnesota, and Montana.
Coordination areas are federal lands made available to a state by
cooperative agreement between the FWS and the state fish and wildlife
agency.
[4] The Land and Water Conservation Fund is authorized for, among other
things, acquisition of land and waters for diverse purposes under
several different laws. This includes conservation of endangered or
threatened species under the Endangered Species Act, as well as the
acquisition of any areas authorized for the refuge system by specific
statutes. 16 U.S.C. § 4061.
[5] U.S. General Accounting Office, National Wildlife Refuges:
Continuing Problems with Incompatible Uses Calls for Bold Action, GAO/
RCED-89-196 (Washington, D.C.: Sept. 8, 1989).
[6] 16 U.S.C. §§ 668dd(a), (d).
[7] State laws also may affect the conduct of oil and gas activities.
[8] 16 U.S.C. §§ 1538, 1540. The term "take" means to harass, harm,
pursue, hunt, shoot, wound, kills, trap, capture, or collect. 16 U.S.C.
§ 1532 (19).
[9] 16 U.S.C. § 703.
[10] 33 U.S.C. § 1321(b).
[11] 50 C.F.R § 29.32.
[12] This analysis does not include coordination areas, which are
managed by states, or conservation easements, which are not owned by
FWS.
[13] Wells that are plugged and abandoned are permanently sealed by
cementing the well bore. Improperly plugged wells can intrude on fresh
water supplies or cause fires and seepage.
[14] All production data are based on information reported to each
state oil and gas commission by oil and gas operators. This information
is updated on different cycles in each state. The totals reported
reflect the most recent data as of January 2003.
[15] The total number of wells is based on the Energy Information
Administration's Financial Reporting System for 33 major energy-
producing companies based in the United States.
[16] The exact economic impact of oil and gas activities in
wildlife refuges has never been estimated, according to FWS officials.
Determination of such an impact is extremely difficult due to a number
of factors. Because many of these refuges have had oil and gas
activities for many decades, the effect that these older operations may
have had on the local economy, including the possible adverse impacts
on recreation or tourism industries, would be impossible to measure.
[17] Additional pipelines cross some of the 437 refuges for which
digital boundary data are not available and were not analyzed by us.
For example, 79 additional refuges for which we did not have digital
boundary data reported to the Refuge Management Information System that
at least 1 transit pipeline crossed their refuges. These figures also
do not include smaller pipelines that are used for gathering production
from wells (called flow-or gathering lines).
[18] Brine is water mixed with salts, other minerals, and oil.
[19] North Carolina State University, Department of Environmental and
Molecular Toxicology, Chemical Contamination at National Wildlife
Refuges in the Lower Mississippi River Ecosystem, February 2001, for
the U.S. Department of the Interior.
[20] 40 C.F.R. § 110.3(b).
[21] U.S. General Accounting Office, Invasive Species: Clearer Focus
and Greater Commitment Needed to Effectively Manage the Problem, GAO-
03-1 (Washington, D.C.: Oct. 22, 2002).
[22] For a comparison of state reclamation requirements, see U.S.
General Accounting Office, Alaska's North Slope: Requirements for
Restoring Lands after Oil Production Ceases, GAO-02-357 (Washington,
D.C.: June 5, 2002).
[23] Some of the 33 studies examined the effects of oil and gas
contamination resulting from activities that are outside the scope of
GAO's study, such as activities occurring outside of the refuge.
[24] 33 U.S.C. § 3512(c).
[25] U.S. General Accounting Office, Standards for Internal Control in
the Federal Government, GAO/AIMD-00-2131 (Washington, D.C.:
Nov. 1999).
[26] Swanson River Satellites: Natural Gas Exploration and Development
Project, Draft Environmental Impact Statement, U.S. Fish and Wildlife
Service--Alaska Region, July 2002.
[27] Although FWS does not have regulations requiring private mineral
rights owners to obtain permits before conducting oil and gas
operations, it does have a permitting process (set forth in the FWS
manual) that applies to private mineral rights owners whose deeds
subject them to permitting requirements; to private mineral rights
owners who agree to be bound by a permit, even though their deeds do
not subject them to permits; and to others.
[28] In determining what conditions to place in a permit, FWS, like
other federal regulatory agencies, must consider the potential
applicability of the Fifth Amendment to the U.S. Constitution. The
Fifth Amendment prohibits the federal government from taking
private property for public use without justly compensating the private
property owner. Government regulation may place restrictions on the use
of property to the extent that it deprives the owner of its use or
economic value. In such cases of "regulatory taking," the owner may be
entitled to just compensation under the Fifth Amendment. Thus, if a
permit "regulated" the mineral rights to the point that they were
deemed to be taken, FWS would have to compensate the owner. See, e.g.,
Foster v. United States, 607 F.2d 943 (Ct. Cl. 1979) (government's
refusal to allow permit holders of mineral interest on government land
any right of access for the purpose of extracting minerals was a
compensable taking).
[29] 43 C.F. R. § 3101.5-1.
[30] Appendix III contains a more detailed legal analysis of FWS's
authority to require permits for both reserved and outstanding rights
owners.
[31] 16 U.S.C. § 715e.
[32] Pub. L. No. 105-57, 111 Stat. 1252 (1997).
[33] H.R. Rep. No. 105-106, at 2-3 (1997).
[34] See Duncan Energy Co. v. United States Forest Service, 50 F.3d 584
(8th Cir. 1995); Dunn McCampbell Royalty Interest, Inc. v. National
Park Service, 964 F. Supp. 1125 (S.D. Tex. 1995), aff'd on other
grounds, 112 F.3d 1283 (5th Cir. 1997).
[35] Under the Consolidated Appropriations Act, 2000, the Secretary of
the Interior may retain money paid by parties exercising private oil
and gas rights for damages to refuge lands in Texas and Louisiana, to
be used to make damage assessments, mitigate or restore the damages,
and monitor and study the recovery of the resources. Pub. L. No. 106-
113, 113 Stat. 1501A-140 (1999).
[36] See Association of Am. Physicians & Surgeons, Inc. v. Clinton, 997
F.2d 898, 908 (D.C. Cir. 1993)("The President has the undisputed
authority to recommend legislation but he need not exercise that
authority with respect to any particular subject or, for that matter,
any subject . . .. [A]nyone in the country can propose legislation.")
(emphasis added).
[37] Privately owned mineral rights within wildlife refuges may be
"reserved" or "outstanding." Reserved mineral rights are those that
were reserved by the owner when ownership of the surface land was
transferred to the federal government. Outstanding mineral rights are
those that were reserved before the surface was transferred to the
federal government, and thus are owned by someone other than the party
making the transfer to the government.
[38] In addition to FWS's potential authority to establish controls on
oil and gas activities on federal lands in advance of commencement of
those activities, FWS also may have rights, under state law, to address
the results of those activities after they occur. In particular, FWS
generally has a typical landowner's right to seek monetary damages and
injunctive relief for contamination and other injury from activities
beyond those reasonably necessary to explore and extract underlying
minerals. See, e.g., United Geophysical Corp. v. Culver, 394 F.2d 393
(5th Cir. 1964); Flying Diamond Corp. v. Rust, 551 P.2d 509 (Utah
1976); Guffey v. Stroud, 16 S.W.2d 527 (Tex. Comm. App. 1929).
[39] See 36 C.F.R. § 9.32 (Park Service); 36 C.F.R. § 51. 50(a) (Forest
Service). The Forest Service regulations are "special use" permit
regulations that have been applied to outstanding mineral rights. See
Duncan Energy Co. v. United States Forest Service, 50 F.3d 584 (8th
Cir. 1995).
[40] See Memorandum from the Associate Solicitor, Conservation and
Wildlife, to the Assistant Secretary, Fish and Wildlife and Parks,
"Fish and Wildlife Service authority to regulate use of reserved
mineral interests on National Wildlife Refuge lands," FWS.CW.0661 (Dec.
22, 1986).
[41] See Act of June 15, 1935, ch. 261, § 301, 49 Stat. 378, 381-82,
codified at 16 U.S.C. § 715e ("it shall be expressed in the deed or
lease that the use, occupation, and operation of [reserved interests
retained by a grantor or lessor from whom the government acquires land
or wildlife refuges] shall be subordinate to and subject to such rules
and regulations as are set out in such deed or lease or, if deemed
necessary by the Secretary of the Interior, to such rules and
regulations as may be prescribed by him from time to time").
[42] See Act of Feb. 18, 1929, ch. 257, § 6, 45 Stat.1222, 1223.
[43] H.R. Rep. No. 74-886, at 2 (1935).
[44] United States v. Little Lake Land Co., 412 U.S. 580, 597-99
(1973). See also Caire v. Fulton, No. 84-3184 (W.D. La. Feb. 10, 1986)
(relying on the 1935 amendment and legislative history in holding that
Interior did not have authority to impose permitting requirements on
private owners of mineral interests when those interests were reserved
from federal control as part of the acquisition of the land through
condemnation).
[45] 16 U.S.C. §§ 1, 3; see 964 F. Supp. at 1133. The court in Dunn
McCampbell left open the possibility that the Park Service's regulation
of the mineral interests might constitute a "taking" for which the
owner should have been compensated under the Fifth Amendment to the
Constitution, and the court transferred the dispute over the owner's
taking claims to the appropriate judicial forum in Dunn McCampbell.
[46] 50 F.3d at 589, citing 7 U.S.C. §§ 1010, 1011(f).
[47] 50 F.3d at 589, citing 36 C.F.R. § 251.50(a).
[48] 16 U.S.C. §§ 668dd(a)(2), (a)(4)(B), added by Pub. L. No. 105-57,
§§ 4, 5(a), 111 Stat. 1252, 1254 (1997).
[49] 16 U.S.C. § 668dd(b)(5).
[50] 16 U.S.C. § 668dd(a)(4)(A), added by Pub. L. No. 105-57, § 5(a),
111 Stat. 1252, 1254 (1997).
[51] See H.R. Rep. No. 105-106, at 3 (1997).
[52] Id. at 3-4, 8, 9.
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