Hit the Gas on the Updated National Park Service Regulations

By Jamila Odeh*

The National Park Service (NPS) entered new regulations governing private and state-owned oil and gas operations in parks into the Federal Register in early November.[1] The rules, effective on December 5, 2016, provide a much-needed update to the thirty-seven-year-old original oil and gas regulations.

Nationwide, twelve parks host a total of 534 non-federal oil and gas operations.[2] In addition, thirty parks could have oil and gas operations in the future, and the NPS knows that non-federal oil and gas mineral rights exist in at least seventy-seven parks.[3] The mineral rights to gas and oil exist in our park system where either the grantor who provided the land to the NPS did not own the oil and gas interest, or where the grantor who provided the land retained the oil and gas interest.[4] These operations may be held by individuals, non-profit and corporate organizations, as well as state and local governments. Activities covered under the regulations include geophysical survey, drilling wells, use of wells for gas and oil production, installation of gas and oil flow lines, plugging and filling wells for abandonment, and site reclamation.[5]

The NPS Organic Act provides that the NPS can promulgate regulations “necessary or proper for the use and management of System Units,”[6] That includes the authority to regulate oil and gas operation within parks. The NPS created non-federal oil and gas regulations in 1978 to protect NPS land, resources, and the values of the park system.[7] The updated regulations will bring the park service closer to that goal. NPS Director Jonathan B. Jarvis explained, “we have a fundamental responsibility to conserve park resources and the values for which these parks are created for the enjoyment of future generations. The changes we made to this rule bring more than 300 previously exempt oil and gas operations in parks under NPS regulations.”[8]

The modernized regulations close many loopholes. Indeed, under the 1978 rule, 60% of operations had exception from compliance.[9] For example, a grandfather exception allowed oil and gas operations that held federal or state permit predating the 1978 regulation to disregard regulation standards.[10] The idea was to ease the transition into the rule, as operations would later come into compliance when the permits expired. Today, around 45% of operations still qualify for the grandfather exception.[11] The modernized rule eliminates that provision. In addition, unlike the 1978 rule the new regulations cover operations that access sub-surface oil and gas rights inside a park from a surface location outside the park’s boundaries.[12] In its Environmental Impact Statement, the NPS notes that the lack of regulation under the old rule created an incentive to seek exemption by placing operations beyond the park.[13] This was problematic as the concern for oil spills and the contamination of ground water was not diminished by the location above the surface.[14]

There is an interesting caveat. The regulations do not apply to Alaska.[15] The decision to exclude Alaska was driven by pending litigation, in Sturgeon v. Frost, 136 S.Ct. 1061 (2016). The case considered the applicability of the Alaskan National Interest Land Conservation Act (ANCILA) in Federal Public Lands.[16] In Sturgeon, the U.S. Supreme Court held that the ANCILA created several special exceptions to NPS general jurisdiction in Alaska and remanded the case for further proceedings to the Ninth Circuit Court.[17]  Currently, there are no non-federal oil and gas operations on NPS land in Alaska; however, the NPS identified every Alaskan park as a potential site for future operations.[18] The NPS plans to review its decision to exclude parks in Alaska once the Ninth Circuit decides Sturgeon.[19]


The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

*Jamila Odeh is a Junior Editor on MJEAL. She can be reached at jamilao@umich.edu.

  1. General Provisions and Non-Federal Oil and Gas Rights, 81 Fed. Reg. 77972 (Nov. 4, 2016) (to be codified at 36 C.F.R. pt. 1 and 9).
  2. Record of Decision for Non-Federal Oil and Gas Revision Environmental Impact Statement, 18 Fed. Reg. 77,972, 77,973 (Nov. 4, 2016), https://www.gpo.gov/fdsys/pkg/FR-2016-11-04/pdf/2016-26492.pdf.
  3. The following parks currently host oil and gas operations with the number of operations noted parenthetically: Alibates Flint Quarries National Monument (5 operations), Aztec Ruins National Monument (4), Big Cypress National Preserve (20), Big Thicket National Preserve (39), Big South Fork National River and Recreation Area (152), Cumberland Gap National Historical Park (2), Cuyahoga Valley National Park (90), Gauley River National Recreation Area (28), Lake Meredith National Recreation Area (174), New River Gorge National River (1), Obed Wild and Scenic River (5), and Padre Island National Seashore (14). Id. at 77,973.
  4. Id.
  5. Id. at 77,974.
  6. Id. at 77,973; National Park Service and Related Programs, 54 U.S.C.A. § 10,010 (2014).
  7. Record of Decision for Non-Federal Oil and Gas Revision Environmental Impact Statement, 18 Fed. Reg. at 77,973.
  8. Press Release, Nat’l. Park Serv., National Park Service Updates Non-federal Oil and Gas Regulations (Nov. 3, 2016), https://www.nps.gov/orgs/1207/11-03-2016-9b-regs.htm.
  9. Id.
  10. Record of Decision for Non-Federal Oil and Gas Revision Environmental Impact Statement, 18 Fed. Reg. at 77,976.
  11. “Approximately 45% of operations (241 wells service-wide) remaining exempt from the regulations despite the passage of over thirty-seven years.” Id.
  12. Id.
  13. Nat’l Park Serv., Revision of 9B Regulations Governing Non-Federal Oil and Gas Activities and Final Environmental Impact Statement (Oct. 20, 2016), https://parkplanning.nps.gov/document.cfm?parkID=430&projectID=28329&documentID=72995.
  14. Id.  
  15. General Provisions and Non-Federal Oil and Gas Rights, 81 Fed. Reg. at 77,973.
  16. Alaska National Interest Land Conservation Act in Federal Public Lands, 16 U.S.C.A. § 3101 (1980), (Westlaw); Transportation and Utility Systems in and Across, and Access into, Conservation System Units in Alaska, 43 C.F.R. §36 (1986) (Westlaw).
  17. Sturgeon v. Frost, 136 S. Ct. 1061 (2016).
  18. Record of Decision for Non-Federal Oil and Gas Revision Environmental Impact Statement, 18 Fed. Reg. at 77,973.
  19. Id.

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