UNITED STATES DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
WASHINGTON, D.C. 20240
http://www.blm.gov
                                                                   June 20, 2012
 
In Reply Refer To:
1790, 2800, 3100 (210/310/350) P
 
EMS TRANSMISSION 06/27/2012
Instruction Memorandum No. 2012-146
Expires: 09/30/2013
To:                      All Field Officials
 
From:                  Director
 
Subject:              Rescinding Washington Office Instruction Memorandum 2010‑118, Energy Policy Act Section 390 Categorical Exclusion Policy Revision
                                                                                                                       
Program Areas: Oil and Gas, Lands and Realty, National Environmental Policy Act (NEPA) Compliance.
 
Purpose: This interim policy rescinds Instruction Memorandum (IM) No. 2010-118, Energy Policy Act Section 390 Categorical Exclusion Policy Revision, issued on May 17, 2010.  IM 2010-118 had established policy regarding the use of five categorical exclusions (CXs) provided for in Section 390 of the Energy Policy Act of 2005 (42 U.S.C. § 15942). 
 
Policy/Action:  All Bureau of Land Management (BLM) field offices are instructed to follow the Section 390 CX guidance outlined in the BLM 2008 NEPA Handbook (H-1790-1, Section 4.1 and Appendix 2), as well as the General section in Chapter 4 applicable to all CXs, when considering the use of the Section 390 CXs. 
 
Field offices will no longer apply the following three limitations on the use of Section 390 CXs included in IM 2010-118. Specifically, field offices will not:
  • Conduct a review for extraordinary circumstances for any Section 390 CX;
  • Limit the use of CX2 to only those circumstances where an existing activity-level or project-specific Environmental Impact Statement (EIS) or Environmental Assessment (EA) adequately analyzed the existing location or well pad site for the proposed drilling; or
  • Limit the use of CX3 to only those circumstances where there has been an existing activity-level or project-specific EIS or EA. 
Timeframe: This IM is effective immediately.   
 
Budget Impact: This policy will not result in additional program costs. 
 
Background:   On August 12, 2011, the United States District Court for the District of Wyoming invalidated, in part, BLM and Forest Service guidance documents that concerned the application of NEPA CXs established under the Energy Policy Act of 2005 to certain onshore oil and gas development activities on Federal oil and gas leases (Western Energy Alliance v. Salazar, No. 10-CV-237F (D. Wyo.)). The court determined that the guidance constituted legislative rules that required public notice and an opportunity for comment under the Administrative Procedure Act.  The court issued a memorandum decision and order vacating Washington Office (WO) IM 2010‑118, Energy Policy Act Section 390 Categorical Exclusion Policy Revision, May 17, 2010, and the June 9, 2010, Forest Service letter and enjoining use of these guidance documents nationwide to the extent they limit the use of Section 390 CXs by: 
  • Establishing a screening process to consider extraordinary circumstances when using any Section 390 CX;
  • Interjecting a new condition within Section 390 CX2 to allow its use only if the specific location and/or well pad site for the proposed drilling was adequately analyzed in an existing activity-level or project-specific NEPA document; and
  • Eliminating the BLM's ability to use Section 390 CX3 for actions based solely on a NEPA document associated with a land use plan. 
On August 19, 2011, Tim Spisak, Deputy Assistant Director, Minerals and Realty Management sent an email to the Deputy State Directors informing them of the Court’s decision and instructing the field to follow the Section 390 guidance outlined in the NEPA Handbook. 

Manual/Handbook Sections Affected:  None.

Coordination: The BLM Division of Fluid Minerals coordinated preparation of this IM with the BLM Division of Decision Support, Planning and NEPA, and the Office of the Solicitor.

Contact: If there are any questions concerning this IM, please contact Michael D. Nedd, Assistant Director, Minerals and Realty Management (WO-300), at 202-208-4201. Your staff also may contact Jim Perry, Senior Natural Resource Specialist, Washington Office Division of Fluid Minerals (WO-310), at 202-912-7145 or jim_perry@blm.gov.
 
 
Signed by:                                                       Authenticated by:
Mike Pool                                                         Robert M. Williams
Acting Director                                                 Division of IRM Governance,WO-560