Intermountain Oil and as BMP Project Use of “Required” vs. “Recommended” for BMPs
The Intermountain Oil and Gas BMP Project uses a very expansive definition of “best management practices”. Since we include this full range of practices, we have tried to characterize each BMP as either a required or a recommended practice. Sometimes the distinction is clear. For example, if a practice is mandated by valid federal, state, or local statute or regulation, it is always a legal requirement. However, in most instances, BMPs come from a variety of sources, such as resource management plans, government agency guidelines, National Environmental Policy Act (NEPA) documents, or Nongovernmental Organization (NGO) publications, and it is not always readily apparent where a practice is required or merely recommended.
Because BMPs are state-of-the-art mitigation measures that are frequently changing and improving over time, BMPs typically start out as a menu of “recommended” practices. It is then up to the agency or applicant to select the appropriate BMP for mitigating a specific resource impact. BMPs become “required” when they are have been included in a NEPA decision document or have been incorporated into an enforceable permit or authorization. The agency may incorporate the BMP into the permit as a condition of approving the permit, or the applicant may proactively incorporate the BMP into their project proposal. Either way, the applicant is now “required” to ensure the BMP is used.
For the purposes of this project, three criteria have been used to distinguish between required and recommended BMPs:
1) the type of agency or entity identifying
The type of entity identifying a BMP as a desired practice can be an indicator for determining whether a BMP is required or recommended. Most legally required practices are statutory – passed into law by the federal, state or local legislative body (Congress, state legislatures, and local governments). Required practices may also be regulatory – created by a specific rulemaking process by a federal, state or local government agency. These required practices – statutes and regulations – are summarized in the LAWS section of the website, but are not included – provision by provision – in the database.
Generally, government agencies, when authorized by statute, are the only agencies with authority to identify particular practices as legal requirements. Consequently, BMPs identified by NGOs, such as advocacy groups, certain industry associations and working groups, or academic institutions, must always be promoted as voluntary or recommended practices. However, government agencies publish a host of other documents in addition to regulations, such as guidelines, handbooks, and environmental impact statements, that often contain only suggested or encouraged practices. Alternatively, many nonprofit organizations and industry groups issue publications that may summarize or duplicate required industry standards. Therefore, we have also considered the type of source document, the introductory language in the source document, and the particular language of a BMP in determining whether a BMP is required or recommended.
The following are the common types of source documents (excluding statutes and regulations) used in this database along with brief explanations describing how the BMPs contained in each are categorized as either required or recommended. Helpful language from example documents is highlighted as well.
1. Government Agency Documents with Recommended Practices
Government documents with BMPs include agency guidelines, handbooks, resource strategies, and management plans. Typically, they contain recommended practices and are published to educate and encourage industry, regulators, and the public about available best management practices for oil and gas operations. Sometimes required standards are explained in these documents as well.
1a. Colorado Greater Sage-grouse Conservation Plan, Colorado Division of Wildlife – Suggested Management Practices (SMPs) Applicable for Oil and Gas Development, within Lease Rights:
“This is partial list of suggested management practices that may be applied to oil and gas operations or other surface-disturbing activities…”
1b. Recommendations for Development of Oil and Gas Resources within Crucial and Important Wildlife Habitats, Wyoming Game and Fish Department:
“The recommendations in this document are a planning tool that provides advanced disclosure of potential wildlife-related concerns, and suggests mitigation and management options companies and resource agencies can incorporate into project designs and operations to benefit wildlife. The general recommendations should be considered within areas of crucial and important wildlife habitats, in which intensive energy developments are planned.”
1c. Handbook on BMPs and Mitigation Strategies for CBM in the Montana Portion of the Powder River Basin, U.S. Department of Energy:
“This handbook is intended to serve as a resource to industry, regulators, land managers, and concerned citizens. The handbook presents background information on CBM activity in the Montana portion of the Powder River Basin while also presenting a number of Best Management Practices and Mitigation Strategies specific to CBM that have been successfully used throughout the United States. The handbook is not intended to be a prescriptive document that specifies required practices. Rather it should be recognized that actual practices and mitigation measures used for a particular site or area will be largely dependent upon land and mineral ownership, geologic and hydrologic conditions, soil types, local and regional wildlife issues, and other unique conditions.”
2. General Government Agency Documents with both Required and Recommended Practices
An example of an agency document containing both required and recommended BMPs:
2a. Bureau of Land Management “Gold Book” – Surface Operating Standards and Guidelines for Oil and Gas Exploration and Development:
“The [Gold Book] was developed to assist operators by providing information on the requirements for obtaining permit approval and conducting environmentally responsible oil and gas operations on Federal lands… The Gold Book provides operators with a combination of guidance and standards for ensuring compliance with agency policies and operating requirements…”
“All pits must be reclaimed to a natural condition that blends with the rest of the reclaimed pad area … the reclaimed pit must be restored to a safe and stable condition … pits must be free of oil and other liquid and solid wastes, allowed to dry, be pumped dry, or solidified in-situ prior to filling.”
“Pits, water impoundments, and surface discharges that present a potential hazard to humans, livestock, wildlife, and other resources should be subject to appropriate mitigation, such as fencing, netting, caging, or covers, as appropriate.”
“Operators are encouraged to substitute less toxic, yet equally effective products for conventional drilling products.”
“Containment dikes are not to be constructed with topsoil or coarse, insufficiently impervious spoil material. Containment is strongly suggested for produced water tanks.”
To add to uncertainty of designating BMPs as required or recommended, the specific language of a BMP (using words like “must”, “will” or “will be required”) sometimes appears to conflict with a document’s more general introductory statements about the content of the source document (that it is only a “guideline” or “includes suggested practice”). In these cases, we have categorized the BMP as “recommended.”
3. National Environmental Policy Act (NEPA) Documents – Required or Recommended Practices (Federal Agencies)
The NEPA requires federal agencies to integrate environmental values into their decision making processes by considering the environmental impacts of their proposed actions and reasonable alternatives to those actions. Agencies typically prepare detailed environmental assessments (EAs) or environmental impact statements (EISs) before they can implement the proposed actions. For example, as they move through the completion process, EISs consist of Draft Environmental Impact Statements (DEIS), Final Environmental Impact Statements (FEIS), and Records of Decision (ROD), all of which may contain BMPs.
In the EIS process, formal adoption of an FEIS occurs with a ROD. Therefore, on the whole, both a DEIS and a FEIS are “recommended documents,” with any BMPs they propose being recommendations as well. However, a DEIS or FEIS may include information on current practices required under present management schemes, often as “existing conditions” or as the “no action alternative” for purposes of comparison with proposed practices. These current practices are labeled as “required” in the database. Similarly, a ROD for a particular EIS is, on the whole, a “required document,” but it may also specify certain BMPs as conditionally applicable, voluntary, or recommended on a site-specific basis. Once the BMPs from the ROD are included within a permit, their status as “required,” becomes absolute.
Example of a DEIS with recommendations:
3a. Vernal Resource Management Plan – Draft
Environmental Impact Statement