Well, the Attorney General did good.
At a meeting of the North Dakota Industrial Commission this morning—Attorney General Wayne Stenehjem is one of three members, along with Jack Dalrymple and Agriculture Commissioner Doug Goehring—our Attorney General revealed his plan for protection from oil development, or at least consideration of protection, for a list of what he termed “places of extraordinary significance.”
His list, far more extensive, I think, than most of the 50 or more concerned citizens who packed a Legislative hearing room expected to see:
a. Black Butte in Slope County;
b. Bullion Butte in Billings County;
c. Camel’s Hump Butte in Golden Valley County;
d. Columnar Junipers (Limber Pines) and Burning Coal Vein, formerly known as the Dakota National Forest, in northwest Slope County;
e. Confluence of Yellowstone and Missouri Rivers;
f. Elkhorn Ranch;
g. Killdeer Mountain Battlefield State Historic Site, Wildlife Management Area;
h. Lake Sakakawea;
i. Little Missouri River;
j. Little Missouri River National Grasslands – Areas designated by the United States Forest Service as not administratively available for future leasing after July 31, 2002;
k. Little Missouri State Park;
l. Pretty Butte in Slope County;
m. Sentinel Butte in Golden Valley County;
n. Theodore Roosevelt National Park;
o. Tracy Mountain in Billings County;
p. West Twin Butte in Golden Valley County;
q. White Butte in Slope County; and
r. Wildlife Management Areas.
I have to admit that even I, who had proposed a list in a letter to him a few weeks ago and had written about it here, with little hope it would hold much sway, was surprised and pleased. I had proposed a few more general areas like National Historic Sites and Federal Wildlife refuges, but I’m guessing that the Attorney General felt that the oil industry would know better than to trifle with such places, and so he didn’t see a need to single them out.
The proposed plan—and I stress the word plan, since it has not yet been formally adopted—would create a buffer zone around those places of half a mile to two miles, depending on the area under consideration, inside which any application for an oil well permit must include an “impact mitigation plan.”
The details of what is to be included in the impact mitigation plan are spelled out in Stenehjem’s proposal:
a. Plans for and timing of reclamation of the well site to natural conditions, except for roads, equipment, and structures that are essential for operations.
b. Noise and traffic mitigation.
c. Efforts to protect the view shed in the sites listed under subsection 2.
d. Use of existing well sites and facilities.
e. The feasibility of constructing pipelines or utilizing other available means to avoid the flaring of gas and trucking of any fluid.
f. Estimated dates and time period for drilling and completion operations.
Generally, here’s how Stenehjem’s proposed administrative rule would work. The proposal directs Oil and Gas Division Director Lynn Helms to develop and maintain a database with the GPS coordinates or legal descriptions of the buffer zones for each location (there’s a list of the buffer zones for each location at the end of this post). Every single drilling permit, apparently, will be run through that database, and if there is a match—if an application is for a location in the database—the Oil and Gas Division must post a notice on its website about the application within 5 days. The public then has 10 days to submit comments on the application. In addition, the Division must send the application to an appropriate state or federal agency for “professional guidance” on how to deal with the application. If it’s in a buffer zone for a wildlife management area, for example, the ND Game and Fish Department will have a chance to weigh in on the application before it is approved.
Some other key provisions:
Under this proposal, when an oil company submits a drilling permit application, it must include the mitigation plan it has written for the site. So the oil industry is going to have to know, before it applies, whether or not each of their applications is in a buffer zone. The industry is going to have to use the database developed by the Oil and Gas Division to guide its siting of oil well pads. If the industry does not want to go to the trouble of establishing a mitigation plan, it will not submit applications for sites within those buffer zones. So that should help serve as a deterrent for encroachment on these special places, keeping oil wells well away from them.
The proposal does not, however, preclude drilling a well inside a buffer zone, or even inside a wildlife management area—it just says if the company is going to do that, they are going to have to do it in a way that is approved by, generally, the appropriate agencies of state and federal government. Those agencies are charged with protecting lands within their purview, and are going to be, I would think, generally reasonable to work with (given the current political climate in North Dakota), but careful in the protection of their resources.
The proposed rule still gives the Director of the Oil and Gas Division, Lynn Helms, the final say on approving a drilling permit application. Which gives us all pause. However, if he should approve any outrageous requests, public pressure will still be brought to bear on his bosses, the Industrial Commission, which has the ability to overrule him.
The proposal contains a whole list of “permit considerations” which are also listed at the end of this post, that directs the Oil and Gas Division to look at what is nearby a proposed well site, such as aquifers, lakes, floodplains and roads. It also proposes a list of stipulations which may be attached to any drilling permit, a list which is quite broad and gives the Division a lot of discretionary power in approving well sites, things like fencing, tree plantings, road placement and, importantly, “limiting flaring to completion or workover flowback periods.” Discretionary power they can choose to use or ignore. Believe me, there will be a lot of eyes on how the Division uses that power.
So, what happens now? Well, at Stenehjem’s urging, in spite of some pushback from the other members of the Commission, there will be a special Industrial Commission meeting in January at which time the Commission can act on Stenehjem’s proposal—voting to adopt an official North Dakota Administrative Rule. If they choose to adopt it, they kick in a round of public comment sessions on the proposed new rule. Public hearings are held, testimony for and against the rule is taken. After that, then they vote to make it an enforceable Administrative Rule. But generally, that’s not quite the end. Usually, the rule then goes to the Legislature’s Administrative Rules Committee for final approval before it takes effect. And that process can take many months to complete.
But Stenehjem wants this to happen quickly (they’re approving 200-300 drilling permits a month right now, and none of them are subject to this process) so they’re going to have to scramble to get public hearings held, and comments compiled, and a final decision made in time for the March meeting of the Legislature’s Administrative Rules Committee. If they can’t do that, Stenehjem has the authority to declare an emergency and put the rule into effect without the Legislature, instead of waiting for the June meeting of the committee. The Commission could also begin implementing some provisions of this informally right away if they wanted to. For instance, they could begin work on the database, and they could begin flagging applications inside these proposed buffer zones for review by state agencies now.
The industry has already expressed some skepticism. Expect some more public opposition and private lobbying from Ron Ness of the Petroleum Council right away. Goehring, as well, seems unconvinced there’s a need for this (although Stenehjem was firm in his response to the Agriculture Commissioner that there are things in this proposal the Industrial Commission is not doing now, but should be), and Dalrymple, while saying the state has been doing an “outstanding job” of regulating the industry, conceded the need for a more formal process under the Commission’s rulemaking authority.
In the end, though, we’re going to have to re-learn to trust Lynn Helms and his staff. His credibility with pretty near everyone outside the industry who cares about North Dakota is pretty low. If this proposal becomes the law (administrative rules in North Dakota have the force of law) Helms is going to have to enforce it. Although his agency is the chief enforcement agency in the oil patch, it has served as more of a cheerleader than a watchdog so far in this oil boom. Stenehjem’s proposal begins a whole new ball game, one in which Helms is going to be a bit uncomfortable. He’s going to bear watching by citizens’ groups who have brought this process to the fore, captured Stenehjem’s (and now, it seems, maybe Dalrymple’s as well) attention, and led us to this point. Those groups include the Badlands Conservation Alliance, the Dakota Resource Council, The North Dakota Natural Resources Trust, The Wildlife Society, The Sierra Club,The Environmental Law and Policy Center and others. In the short term, at least, those groups are going to have to monitor this process to be sure it is carried out to the extent allowed in the new rules. There’s a lot of dedication among those folks, and I think they’re up to the task. The Attorney General did good. Now we have to stand beside him and make sure the job gets done.
Buffer Zones Proposal
Any application for a permit within the areas or the buffer zone around the areas identified in subsection 2 received after May 1, 2014 shall include an impact mitigation plan signed by the applicant or its agent. The buffer zone for each site shall be measured as follows:
a. The buffer zone for Black Butte shall be two miles from the maximum elevation of the butte.
b. The buffer zone for Bullion Butte shall be measured two miles from the maximum elevation of the Butte.
c. The buffer zone for Camel’s Hump Butte shall be two miles from the maximum elevation of the butte.
d. The buffer zone for the Columnar Junipers (Limber Pines) and Burning Coal Vein shall be measured one mile from the exterior boundary of the former Dakota National Forest.
e. The buffer zone for the Confluence of the Yellowstone and Missouri Rivers shall be measured two miles from the intersection of the centerline of the riverbeds as it is determined at the time of the application.
f. The buffer zone for the Elkhorn Ranch shall be measured two miles from the exterior boundary of the National Park and State Park sites.
g. The buffer zone for the Killdeer Mountain Battlefield State Historic Site, Wildlife Management Area shall be measured one mile from the exterior boundary of each site.
h. The buffer zone for Lake Sakakawea shall be one half mile from the shoreline at 1854’ msl elevation (i.e., the spillway elevation).
i. The buffer zone for the Little Missouri River shall be measured approximately one mile from the centerline of the riverbed as it is determined at the time of the application.
j. The buffer zone for the areas within the Little Missouri River National Grasslands that are designated by the United States Forest Service as not administratively available for future leasing after July 31, 2002, shall be the nearest section line or boundary of Forest Service property. .
k. The buffer zone for the Little Missouri State Park shall be measured one mile from the park’s exterior boundary.
l. The buffer zone for Pretty Butte shall be two miles from the maximum elevation of the butte.
m. The buffer zone for Sentinel Butte shall be two miles from the maximum elevation of the butte.
n. The buffer zone for each unit of the Theodore Roosevelt National Park shall be measured two miles from the park’s exterior boundaries.
o. The buffer zone for Tracy Mountain shall be two miles from the maximum elevation of the mountain.
p. The buffer zone for West Twin Butte shall be two miles from the maximum elevation of the butte.
q. The buffer zone for White Butte in Slope County shall be two miles from the maximum elevation of the butte.
r. The buffer zone for any Wildlife Management Area not located within any other buffer zone shall be measured one mile from the exterior boundary.
Permit Considerations Proposal
For all applications for a permit to drill, regardless of location, the director shall consider the proximity of the proposed location to the following:
a. A shallow glacial aquifer;
b. A lake (with a water surface of 640 acres or more);
c. Lake Sakakawea;
d. A wellhead protection area;
e. Near-surface coal, sand, or gravel deposit;
f. Unstable soils or areas with a high potential for soil instability;
g. A natural drainage;
h. A 100-year (or less) floodplain;
i. An occupied dwelling;
j. A military facility;
k. A plugged and/or abandoned well;
l. A planned bypass route that has been proposed in an approved ten-year, or less, county, state, or federal road master plan;
m. 33 feet of any section line which has not been closed or within 200 feet of the centerline of a state or federal highway;
n. A city’s extra-territorial boundary; and
o. A county, state, or federally designated historic site; a public recreation area; or a wildlife management area.
p. Any other areas or geographical formations the director deems appropriate.
Additional Stipulations Proposal
Because of the proximity of the location to any of these items, the director may attach additional stipulations to the permit deemed necessary, such as:
a. Closed mud system with no cuttings pit;
b. Impermeable liner underlying the entire site;
c. Casing cemented to ground level placed in the rat and mouse holes;
d. Prohibiting the drilling pit from being constructed with porous materials, i.e., sand, coal, gravel, or scoria;
e. Spill contingency plan and diking around the entire location;
f. Hydrogen sulfide contingency plan;
g. Fencing around the site;
h. Additional casing strings;
i. Additional precautions to avoid adverse effects to nearby well(s);
j. Locating production equipment further from occupied dwellings than the well head;
k. Requiring access from an off-spacing unit site;
l. Planting of trees to minimize visual impact;
m. Restrictions on access road location;
n. Limiting flaring to completion or work over flow back periods;
o. Restricting excavation during site construction;
p. Timing limits on construction, drilling and fracture stimulating operations; or
q. Any other provision deemed necessary.