Roads to Infinity: Oil & Gas Assaults the Allegheny

Tucked away in the northwestern corner of Pennsylvania is the state’s only national forest, the Allegheny National Forest. At 513,000 acres, the Allegheny is home to the largest old growth forest in the east between the Adirondacks and Smoky Mountains, two wild and scenic rivers, and the North Country National Scenic Trail. The Allegheny is within a day’s drive of one-third of the U.S. population and is part of Governor Rendell’s “Pennsylvania Wilds,” a statewide initiative to boost recreation and tourism in the sparsely populated northern part of the state.

Unfortunately, the Allegheny has few areas protected from resource extraction. Just 1.8 percent of the forest is designated Wilderness and about 4 percent is designated as national recreation area. Worst of all, 93 percent of the subsurface mineral rights are privately owned, adding a level of complexity unheard of in most other national forests.

The Consequence of a Split Estate

By 1923 when the Allegheny was established, the surface and subsurface estates had already been split, and the federal government did not acquire the subsurface mineral rights when it purchased the land to establish the national forest. The tragic results of having such a large proportion of subsurface rights in private hands have become apparent in recent years. Today, there are at least 9,000 active oil and gas wells in the Allegheny, more than the other 154 national forests combined. Since 2003, oil and gas drilling has skyrocketed by 1,000 percent, from 202 new wells drilled in 2003 to a projected 2,000 new wells in 2007.

As a result of this high level of oil and gas drilling, the Allegheny has the dubious honor of having as many miles of roads as much larger national forests in the western U.S. According to a 2003 roads analysis, the Allegheny has over 2,700 miles of roads, a fi gure that is undoubtedly much higher today given the rate of drilling in recent years. In the Allegheny’s revised forest plan, released this year, the Forest Service failed to disclose how many new roads have been constructed, relying instead on the 2003 fi gure. To this day, the Forest Service has not disclosed how many miles of new oil and gas roads have been constructed since 2003 even though the Forest Service reviews and approves the operators’ development plans.

Given the Allegheny’s relatively small size, this high level of road development translates into extremely high road densities, fragmenting habitat for numerous wildlife species including northern goshawk, cerulean warbler, timber rattlesnake, and wood turtle. For instance, some areas of the forest have road densities exceeding 18 mi/mi2, a density that resembles an urban area rather than a national forest.

State and Federal Oversight

Historically, the Forest Service has provided little regulatory oversight for private oil and gas development, taking the position that the National Environmental Policy Act (NEPA) does not apply where the agency does not own the mineral rights below the surface. Thus, the Forest Service has maintained that it must allow development. A recently uncovered document, however, not only challenges this assertion but also supports the argument that the Forest Service can and should have direct control over how oil and gas operators access the federal surface to extract their oil and gas. While the Forest Service is not the permitting authority in terms of issuing well drilling permits, it does have signifi cant authority regarding how the forest is accessed for drilling.

When oil and gas companies want to drill on lands they do not own, they must notify the surface owner by letter at the same time they submit an application for a well drilling permit to the Pennsylvania Department of Environmental Protection (DEP). Upon receiving this letter, the surface owner has 15 days to object to the location of proposed wells. Only if the application is materially defi cient or violates the Pennsylvania Oil and Gas Act can a permit be denied. Section 205 of the Act restricts the location of wells in the vicinity of water wells and water bodies.

Pennsylvania’s Oil and Gas Act gives additional guidance to addressing development impacts, and in Section 205(c) it requires the DEP to consider the impacts of proposed oil and gas wells on:

1. Publicly owned parks, forests, gamelands and wildlife areas.
2. National or State scenic rivers.
3. National natural landmarks.
4. Habitats of rare and endangered fl ora and fauna and other critical communities.
5. Historical and archaeological sites listed on the Federal or State list of historic places.

As a surface landowner, the Forest Service has had the authority to fi le objections since 1984, when the Oil and Gas Act was signed, but since that time it has fi led just 3 objections covering 17 wells. All of these objections were fi led this year as it became embarrassingly obvious to the Forest Service that allowing so much oil and gas drilling virtually unchecked made for bad public relations.

Will the FS Exert Its Authority?

As stated above, the Forest Service has long insisted that private oil and gas drilling in the Allegheny is not subject to NEPA. However, a document obtained recently through a Freedom of Information Act (FOIA) request counters that notion. The document addressed a proposed oil and gas development in the Allegheny Front National Recreation Area, an inventoried roadless area and one of the most remote areas in the entire national forest.

In the document, the Forest Service’s Offi ce of General Counsel concluded that NEPA would apply in this instance, citing the agency’s 1911 Rules and Regulations that require Forest Supervisor approval for the location of roads to access minerals. The question must be asked, if NEPA applies in this case, why doesn’t it apply in all other cases? To date, there have been no environmental assessments on the Allegheny for road construction associated with private oil and gas development.

Clean Water Act exemption

Adding to the dilemma in the Allegheny is the Energy Policy Act of 2005. Just as oil and gas prices were rising, the Environmental Protection Agency, under the authority of the Energy Policy Act, exempted earth disturbance activities associated with oil and gas development from the Clean Water Act’s National Pollutant Discharge and Elimination Systems (NPDES) permit requirements.

While the DEP is considering promulgating a general permit for oil and gas drilling at the state level, it is almost certain to lack the regulatory oversight necessary to protect not only the Allegheny, but most of Pennsylvania, where extensive oil and gas deposits exist. This is supported by the comments of DEP Secretary Kathleen McGinty herself who praised oil and gas drilling last year before the PA House Appropriations Committee:

“Oil and gas drilling activity is at record levels due to high natural gas and crude oil prices. The energy industry responded to these market demands by revisiting Pennsylvania’s oil and gas fi elds. DEP staff responded in kind — working intensely to marshal a record number of permits without delay…These environmental achievements help to stimulate the economy and create jobs. (emphasis added)

Since the Clean Water Act exemption went into effect in June 2006, the number of wells drilled in the Allegheny has nearly doubled. For instance, 1,200 wells were drilled in fi scal year 2006, while that many have already been drilled in the fi rst seven months of fi scal year 2007.

Solutions and lessons learned

First, in trying to protect an area with split estates, it is critical to know the state laws governing mineral extraction operations. Find out what the rights of surface owners are and, if the landowner is an agency, pressure the agency to do what is within its authority to regulate surface occupancy by mineral operators. Do not trust the agency to its own due diligence.

Second, if the laws in your state are archaic (like they are in Pennsylvania), lobby your state legislature to change them. This will take time, but in the long run the efforts will be well worth it and may bring lasting protection. Several Pennsylvania municipalities have passed ordinances regulating oil and gas development, and while these ordinances are being challenged in court, similar measures should be introduced at the state level.

Third, pursue funding to acquire mineral rights. The Forest Service should have a policy for acquiring mineral rights, so make sure they are requesting funds from Congress or the state legislature to accomplish meaningful mineral rights acquisition. Importantly, make sure that when the mineral rights are acquired, the agency withdraws the minerals from leasing or at the very least attaches a “no surface occupancy” stipulation.

Sidebar: Public Lands — Private Minerals

Eastern national forests are different than western national forests, which were created from “public domain” lands already owned by the federal government. The federal government therefore owns the mineral rights under most western national forests. By the time the federal government began to designate national forests in the east, most of the land was already privately owned. The Weeks Act of 1911 authorized the President to acquire private lands for streamfl ow protection and to be set aside as national forest. It did not, however, authorize the purchase of the subsurface mineral estate and if the surface and subsurface estates had already been split (were owned by two separate owners) at the time the federal government acquired the surface, it would have to pursue acquisition of the subsurface in a separate proceeding.

Allegheny NF (Pennsylvania) – 93% private minerals
Daniel Boone NF (Kentucky) – 67% private minerals
Wayne NF (Ohio) – 65% private minerals
Monongahela NF (West Virginia) – 38% private minerals

— Ryan Talbott is the Forest Watch Coordinator for the Allegheny Defense Project. He has a bachelor’s degree in environmental biology from Clarion University and a master of studies in environmental law degree from Vermont Law School.