Department of Interior Publishes Report in Response to Executive Order 13783

President Trump’s Executive Order 13783 “Promoting Energy Independence and Economic Growth” requires that

“The heads of agencies shall review all existing regulations, orders, guidance documents, policies, and any other similar agency actions (collectively, agency actions) that potentially burden the development or use of domestically produced energy resources, with particular attention to oil, natural gas, coal, and nuclear energy resources.  Such review shall not include agency actions that are mandated by law, necessary for the public interest, and consistent with the policy set forth in section 1 of this order.”

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This Executive Order establishes deadlines for publishing the agencies’ report on this review.

With regard to seismic survey permitting, the U.S. Interior Department’s EO 13783 Report states:

“Currently [Interior’s Bureau of Ocean Energy management’s] is one of two Federal agencies required to take separate regulatory actions in order to permit geological and geophysical surveying on the [Outer Continental Shelf]. These seismic surveys, which are conducted by applicants, enable BOEM to make informed business decisions regarding oil and gas reserves, engineering decisions regarding the construction of renewable energy projects, and informed estimates regarding the composition and volume of marine mineral resources. This information is also used to ensure the proper use and conservation of OCS energy resources and the receipt of fair market value for the leasing of public lands.

The ongoing delay in reaching decisions on Federal authorization of seismic surveys is a burden that hinders domestic energy development by preventing industry from being able to better determine the size and location of potential energy resources below the seafloor. The BOEM experts believe that these surveys can be authorized with appropriate mitigation measures consistent with the protection required by applicable Federal laws, primarily the Marine Mammal Protection Act (MMPA) and the Endangered Species Act (ESA). While BOEM is responsible for ultimately issuing a permit to allow these activities to move forward, no seismic surveying can be done without MMPA authorization by the National Marine Fisheries Service (NMFS). For this reason, the issuance of certain seismic permits by BOEM has been held up in a years-long process awaiting NMFS authorization. BOEM and NMFS are currently working on ways to streamline review, as directed in EO 13795, Sec. 3(c).

The Department believes that some improvements can be made through simple program initiatives, such as NMFS assigning dedicated staff to the permits or allowing BOEM to determine MMPA compliance for the purposes of BOEM-related activities in accordance with EO 13807. Finding a genuinely effective solution may warrant statutory changes as well as reorganizing departmental responsibilities within the Executive Branch in order to streamline opportunities to increase efficiency.”

Interior 13783 Report, pages 19-20, here.

The Interior 13783 Report discusses Arctic MMPA permitting as follows:

“ii. Review Incidental Take Regulations for oil and gas activities in the Southern Beaufort Sea and Chukchi Sea, under the Marine Mammal Protection Act (MMPA)

The MMPA prohibits take (i.e., harass, hunt, capture, or kill) of marine mammals (16 U.S.C. 1361 et seq.) unless authorized by the Secretary. Existing measures in the MMPA incidental take regulations require: 1) maintaining a minimum spacing of 15 miles between all active seismic source vessels and/or drill rigs during exploration activities in the Chukchi Sea; 2) no more than two simultaneous seismic operations and three offshore exploratory drilling operations authorized in the Chukchi Sea region at any time; 3) time restrictions for transit through the Chukchi Sea; 4) time and vessel restrictions in the Hanna Shoal Walrus Use Area; 5) location of polar bear dens and 1-mile buffer; 6) maximum distance around Pacific walruses and polar bears on ice and groups of Pacific walruses in water; 7) sound producing mitigation zones & shut-down/ramp up procedures; 8) marine mammal observers and monitoring requirements; and 9) excessive reporting requirements.

The [U.S. fish and Wildlife service] has the opportunity to review the Chukchi Sea incidental take regulation which expires in 2018, and the regulation for the southern Beaufort Sea expires in 2021. They may either be allowed to expire or be revised and reissued.”

Interior 13783 Report, pages 31-32, here.

The Interior Report includes the following additional discussion of offshore oil and gas:

“iv. Oil and Gas Leasing on the Outer Continental Shelf

Secretary Zinke directed development of a new 5-year OCS oil and gas leasing program to spur safe and responsible energy development offshore. On July 3, 2017, BOEM published a request for information and comments on the preparation of a new 5-year National OCS Leasing Program for 2019-2024 (82 FR 30886). Upon its completion, the new program will replace the 2017-2022 program.

Secretarial Order 3350 directly implements EO13795, and also advances Interior’s implementation of EO13783 by providing for the reevaluation of actions that impact exploration, leasing, and development of our OCS energy resources. This Secretarial Order enhances opportunities for energy exploration, leasing, and development on the OCS by establishing regulatory certainty for OCS activities. In accordance with this Secretarial Order, Interior is reviewing potential regulatory changes to reduce burden on offshore energy production, development, and use.

In addition, on July 13, Secretary Zinke offered 75.9 million acres offshore Texas, Louisiana, Mississippi, Alabama, and Florida for oil and gas exploration and development. The region-wide lease sale conducted on August 16, 2017, was the first offshore sale under the OCS Oil and Gas Leasing Program for 2017-2022. Under this program, 10 region-wide lease sales are scheduled for the Gulf, where resource potential and industry interest are high, and oil and gas infrastructure is well established. Two Gulf lease sales will be held each year and include all available blocks in the combined Western, Central, and Eastern Gulf of Mexico Planning Areas.”

Interior Report, page 19, here.

The Interior Secretarial Order 3350, which the Interior Report cites above, is available here.

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