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GAO: BLM 'Frequently' Violates NEPA Exclusions

September 21, 2009
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A lack of clarity in the "categorical exclusions" portion of the Energy Policy Act of 2005 (EPAct) led many Bureau of Land Management (BLM) field offices to, among other things, erroneously use single decision documents to approve multiple natural gas and oil wells, the Government Accounting Office (GAO) said in a report issued last week.

The EPAct was enacted in part to expedite gas and oil development, and under Section 390 the Department of Interior's BLM was given the authority to use categorical exclusions to streamline the environmental analysis process required under the National Environmental Policy Act (NEPA). However, questions were raised about how and when BLM used the exclusions, and GAO was asked to review the data.

Using data from fiscal years 2006 through 2008, GAO auditors analyzed documents from all 26 BLM field offices that used the exclusions and reviewed 215 of the Section 390 categorical exclusion documents. According to GAO, the exclusions were used to approve about 28% (6,100) of 22,000 applications for permits to drill, and about 800 other actions related to permit modifications.

"BLM's use of Section 390 categorical exclusions has frequently been out of compliance with both the law and BLM's guidance," the GAO auditors found. GAO auditors found "several types of violations of the law, including approving more than one oil or gas well under a single decision document, approving projects inconsistent with the law's criteria, and drilling a new well after time frames had lapsed."

In more than three-quarters (85%) of the BLM field offices sampled, "officials did not correctly follow guidance, most often by failing to adequately justify the use of a categorical exclusion," auditors said. "A lack of clear guidance and oversight contributed to the violations and noncompliance."

Many of the violations were "technical in nature," but "others are more significant and may have thwarted NEPA's twin aims of ensuring that BLM and the public are fully informed of the environmental consequences of BLM's actions."

BLM may be using the exclusions "in too many -- or too few -- instances," said auditors. "For example, there is disagreement as to whether BLM must screen Section 390 categorical exclusions for extraordinary circumstances, which would preclude their use, whether their use is mandatory, and how the public can challenge their use and on what grounds."

Specific concerns also have been raised about "key concepts" underlying the EPAct's description of exclusions, said GAO, which may allow BLM "to exceed development levels -- such as number of wells to be drilled -- analyzed in supporting NEPA documents without conducting further analysis."

Auditors also found "vague or nonexistent definitions" in the EPAct and BLM guidance, which "have led to varied interpretations among field offices and concerns about misuse and a lack of transparency."

Congress may want to consider amending the EPAct to clarify Section 390, said the GAO. In addition, the agency recommended that BLM improve how it implements the exclusions by clarifying agency guidance, standardizing decision documents and ensuring compliance with more oversight.

"The Department of the Interior concurred with our recommendations and stated that it will take immediate steps to ensure that the use of section 390 categorical exclusions is consistent with the act and BLM guidance," auditors said.

The report, GAO-09-872, is available at www.gao.gov/products/GAO-09-872.

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