2003 GAO Report GAO-03-517

United States General Accounting Office

GAO

Report to Congressional Requesters

August 2003

NATIONAL WILDLIFE
REFUGES
Opportunities to
Improve the
Management and
Oversight of Oil and
Gas Activities on
Federal Lands

GAO-03-517

a

August 2003

NATIONAL WILDLIFE REFUGES

Highlights of GAO-03-517, a report to
congressional requesters

The 95-million acre National
Wildlife Refuge System contains
federal lands devoted to the
conservation and management of
fish, wildlife, and plant resources.
While the federal government owns
the surface lands in the system, in
many cases private parties own the
subsurface mineral rights and have
the legal authority to explore for
and extract oil and gas. GAO was
asked to determine the extent of oil
and gas activity on refuges, identify
the environmental effects, and
assess the Fish and Wildlife
Service’s management and
oversight of oil and gas activities.

In a draft of this report, GAO
made several recommendations
to enhance the Fish and Wildlife
Service’s management of oil and
gas activities, including collecting
better data; improving training,
oversight, and land acquisition
practices; and strengthening
permitting authority. GAO also
recommended that the Service
seek additional authority to
regulate private mineral rights.
In response to comments received
from the Department of the
Interior, GAO has clarified its
position as to the means that the
Service could use to improve
oversight. Also, in light of Interior’s
comments indicating a perceived
inability to request additional
authority, GAO is asking Congress
to consider expanding the Service’s
authority to regulate private
mineral rights.
www.gao.gov/cgi-bin/getrpt?GAO-03-517.
To view the full product, including the scope
and methodology, click on the link above.
For more information, contact William R.
Swick at (206) 287-4851 or swickw@gao.gov.

Opportunities to Improve the
Management and Oversight of Oil and
Gas Activities on Federal Lands

About one-quarter (155 of 575) of all refuges have past or present oil
and gas activity, some dating to at least the 1920s. Activities range from
exploration to drilling and production to pipelines transiting refuge lands.
One hundred five refuges contain a total of 4,406 oil and gas wells—2,600
inactive wells and 1,806 active wells. The 1,806 wells, located at 36 refuges
and many around the Gulf Coast (see figure), produced oil and gas valued at
$880 million during the last 12 month reporting period, roughly 1 percent of
domestic production. Thirty-five refuges contain only pipelines.
The Fish and Wildlife Service has not assessed the cumulative environmental
effects of oil and gas activities on refuges. Available studies, anecdotal
information, and GAO’s observations show that the environmental effects of
oil and gas activities vary from negligible, such as from buried pipelines, to
substantial, such as from large oil spills or from large-scale infrastructure.
These effects also vary from the temporary to the longer term. Some of the
most detrimental effects of oil and gas activities have been reduced through
environmental laws and improved practices and technology. Moreover, oil
and gas operators have taken steps, in some cases voluntarily, to reverse
damages resulting from oil and gas activities.
Federal management and oversight of oil and gas activities varies widely
among refuges--some refuges take extensive measures, while others exercise
little control or enforcement. GAO found that this variation occurs because
of differences in authority to oversee private mineral rights and because
refuge managers lack enough guidance, resources, and training to properly
manage and oversee oil and gas activities. Greater attention to oil and gas
activities by the Fish and Wildlife Service would increase its understanding
of associated environmental effects and contribute to more consistent use of
practices and technologies that protect refuge resources.
National Wildlife Refuges with Oil and Gas Wells

Contents

Letter

1
3
7
10

Results in Brief
Background
Extent of Oil and Gas Activities in Refuges
Overall Effects of Oil and Gas Activities Are Unknown,
but Those Activities Have Diminished Some Refuge System
Resources
FWS Management and Oversight of Oil and Gas Activities
Varies Widely
Conclusions
Recommendations for Executive Action
Matter for Congressional Consideration
Agency Comments and Our Evaluation

31
42
43
44
44

Refuges with Oil and Gas Activities

48

Summary of Oil and Gas Activities at Refuges Visited

53

Analysis of Legal Authority of the Fish and Wildlife Service
to Impose Prospective Permit Requirements

55

Scope and Methodology

60

Comments from the Department of the Interior and
U.S. Fish and Wildlife Service

64

GAO Contacts and Acknowledgments

67

18

Appendixes
Appendix I:
Appendix II:
Appendix III:
Appendix IV:
Appendix V:
Appendix VI:

Tables

Table 1: Number of Refuges with Oil and Gas Activities,
by FWS Region
Table 2: Refuges with the Highest Number of Wells
Table 3: Types of Oil- and Gas-Related Wells Located on National
Wildlife Refuges
Table 4: Oil and Gas Production from Refuge System Wells,
January 2003
Table 5: Refuges with Oil and Gas Pipelines Crossing
Refuge Lands
Table 6: Elements of Management and Oversight Found at
Refuges Visited

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11
12
13
14
15
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GAO-03-517 Oil and Gas on Wildlife Refuges

Contents

Figures

Figure 1: Fish and Wildlife Service Regions
Figure 2: National Wildlife Refuges with Oil and Gas Wells
Figure 3: Pipeline Storage and Loading Facilities,
Delta NWR (La.)
Figure 4: Deep Fork NWR (Okla.) Current and Approved
Acquisition Boundaries
Figure 5: Ongoing Cleanup of Oil Spill at Delta NWR (La.)
Figure 6: Wellhead at Delta NWR (La.)
Figure 7: Compressed Marsh Grid from 3-D Seismic Study at
McFaddin NWR (Tex.)
Figure 8: Site Restoration at McFaddin NWR (Tex.)
Figure 9: Examples of Unreclaimed Infrastructure on NWRs
Figure 10: Marsh Restoration Project Funded by Oil and Gas
Operators at Sabine NWR (La.)
Figure 11: Butte Sink Wildlife Management Area (Calif.), Plot of
Wells and One-Half Mile Boundary

8
12
16
17
20
22
24
27
28
40
61

Abbreviations
CAP
FWS
NPMS
NWR
PCB
RMIS
VOC
WMA
WMD

Contaminant Assessment Process
Fish and Wildlife Service
National Pipeline Mapping System
National Wildlife Refuge
polychlorinated biphenyls
Refuge Management Information System
volatile organic compounds
Wildlife Management Area
Wetland Management District

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GAO-03-517 Oil and Gas on Wildlife Refuges

A

United States General Accounting Office
Washington, D.C. 20548

August 28, 2003

Leter

The Honorable Wayne T. Gilchrest
Chairman
Subcommittee on Fisheries Conservation,
Wildlife, and Oceans
Committee on Resources
House of Representatives
The Honorable Edward J. Markey
House of Representatives
The mission of the National Wildlife Refuge System, as expressed in its
governing legislation, is to “administer a national network of lands and
waters for the conservation, management, and where appropriate,
restoration of the fish, wildlife, and plant resources and their habitats
within the United States for the benefit of present and future generations
of Americans.” The system is unique in that the 95 million acres of land in
the system are the only federal lands managed primarily for the benefit
of wildlife, providing habitat for native plants and animals, including
endangered or threatened species, as well as important way points for
migrating species, such as ducks, cranes, and eagles. The system, which
represents more than 14 percent of all federal lands and has a presence
in every state, is administered by the Department of the Interior’s Fish
and Wildlife Service and includes both land that has always been federally
owned and land that has been acquired from others. While the federal
government owns almost all the surface lands in the system, in many
cases the federal government does not own the subsurface mineral rights.
Subject to some restriction, owners of subsurface mineral rights have the
legal authority to explore for mineral resources such as oil and gas and,
if such resources are found, to extract them.
In October 2001, we reported that the Fish and Wildlife Service recognized
some type of oil and gas activity on 77 of the 567 refuges and wetland
management districts within the National Wildlife Refuge System in

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GAO-03-517 Oil and Gas on Wildlife Refuges

calendar year 2000.1 However, our report recognized that this accounting
of activities might be incomplete because the data were based on refuges’
self-reporting. Therefore, to gain a more complete assessment of oil and
gas activities, you asked us to (1) determine the nature and full extent of
oil and gas activities in the National Wildlife Refuge System, (2) identify
environmental effects of oil and gas activities on refuge resources, and
(3) assess the Fish and Wildlife Service’s management and oversight of
these activities.
Our updated information on the extent of past and present oil and gas
activities within current wildlife refuge boundaries is based on a variety of
sources. Using national geographic information databases, we determined
how many documented oil and gas wells and transit pipelines were located
within or immediately proximate to refuge boundaries. We also used
Fish and Wildlife Service records to identify other evidence of oil and
gas activities. Premier Data Services, a firm with extensive experience in
computer-based geographic information systems and oil and gas leasing,
aided our data acquisition and analysis (see app. IV). Our analysis is more
extensive than any undertaken by the Fish and Wildlife Service or the
Department of the Interior, and at their request, we are providing our
database to them for future use.
We visited 16 refuges, representing a range of type and scale of oil and gas
activities and environmental effects. At each refuge, we asked the refuge
manager to describe the range of environmental effects of these oil and gas
activities, obtained any available studies of the effects, and visited selected
locations of oil and gas activity to observe actual conditions.
To assess the authority of the Fish and Wildlife Service to manage and
oversee oil and gas activities on refuges, we obtained information from the
Department of the Interior’s Office of the Solicitor and reviewed the laws
and regulations pertaining to the Fish and Wildlife Service and other
federal land management agencies and recent court cases concerning
private mineral rights on federal lands. To assess the Fish and Wildlife

1
U.S. General Accounting Office, U.S. Fish and Wildlife Service: Information on Oil and
Gas Activities in the National Wildlife Refuge System, GAO-02-64R (Washington, D.C.:
Oct. 31, 2001). The National Wildlife Refuge System, at that time, consisted of 530 refuges
as well as 37 wetland management districts, which are management entities created to
administer waterfowl production areas. In this report, we use the term “refuge” to refer to
any unit of the National Wildlife Refuge System, including national wildlife refuges, wildlife
ranges, wildlife management areas, and waterfowl production areas.

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Service’s management and oversight of oil and gas activities, we obtained
information on policy, guidance, and practices from headquarters and the
7 regional offices and documented the actual practices in use at the
16 refuges we visited.

Results in Brief

About one-quarter, or 155, of the 575 refuges, have past or current oil
and gas activities, some dating to at least the 1920s. These activities
include oil and gas exploration, active and inactive drilling and production
facilities, and active pipelines transiting refuge lands. As of December 2002,
4,406 oil and gas wells were located on 105 refuges, with many of the wells
concentrated in Louisiana and Texas. Of the 4,406 wells on refuge lands,
a majority (2,600 wells) were inactive, either permanently plugged and
abandoned or temporarily idled with the possibility of future activation.
Thirty-six refuges have 1,806 active wells and more than half of these are
located in just 5 refuges. Since 1994, oil and gas exploration has occurred
at 44 refuges. In addition, at least 1 active pipeline is present at 107 refuges,
35 of which do not have any other oil and gas activity. During the most
recent 12-month reporting period, the 1,806 active wells produced
23.7 million barrels of oil and 88.2 million cubic feet of natural gas, about
1.1 and 0.4 percent of total domestic oil and gas production, respectively.
Based on 2001 average prices, refuge-based production had an estimated
total commercial value of $880 million.
The Fish and Wildlife Service has not conducted any assessments of the
cumulative environmental effects of oil and gas activities on refuge
resources. Available studies, anecdotal information, and our observations
show that the environmental effects of oil and gas activities and the
associated construction, operation, and maintenance of the infrastructure
on wildlife and habitat vary in severity, duration, and visibility. For
example, the environmental effects range from infrequent small oil spills
and minimal debris from abandoned infrastructure to large and chronic
spills and large-scale industrial development. Some damage, such as
habitat loss from infrastructure development, may last indefinitely, while
other damage, such as wildlife disturbance from exploration, is of shorter
duration. While certain types of damages are readily visible, others, such as
changes in groundwater hydrology or habitat conditions, are more difficult
to quantify or to link solely to oil and gas activities. Over the years, new
environmental laws and industry practice and technology have reduced,
but not eliminated, some of the most detrimental effects of oil and gas
activities. In addition, oil and gas operators have taken steps, in some cases
voluntarily, to reverse damages resulting from oil and gas activities, but

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GAO-03-517 Oil and Gas on Wildlife Refuges

operators have not consistently taken such steps and the adequacy of these
steps is not known. The Fish and Wildlife Service does not have a complete
and accurate record of spills and other damage resulting from refuge-based
oil and gas activities, has conducted few studies to quantify the extent of
damage, and, therefore, does not know its full extent or the steps needed to
reverse it.
The Fish and Wildlife Service’s management and oversight of oil and gas
activities varies widely among refuges. Management control standards for
federal agencies require federal agencies to identify risks to their assets,
provide guidance to mitigate these risks, and monitor compliance.2 For
the Fish and Wildlife Service, effectively managing oil and gas activities
on refuges would entail, at a minimum, identifying the extent of oil and
gas activities and their attendant risks, developing procedures to minimize
damages by issuing permits with conditions to protect refuge resources,
and monitoring the activities with trained staff to ensure compliance and
accountability. However, we found a wide variance in the extent to which
these management practices occur. Some refuges identify oil and gas
activities and the risks they pose to refuge resources, issue permits that
direct operators to minimize the effect of their activities on the refuge,
monitor oil and gas activities with trained personnel, and charge mitigation
fees or pursue legal remedies if damage occurs. For example, two refuges
in Louisiana collect mitigation fees from oil and gas operators that are then
used to pay for monitoring operator compliance with permits and state and
federal laws. In contrast, other refuges do not issue permits or collect fees,
are not aware of the extent of oil and gas activities or the attendant risks to
refuge resources, and provide little management and oversight.
There are two primary reasons for the variation in management of oil and
gas activities. First, the Fish and Wildlife Service’s legal authority to require
oil and gas operators to obtain access permits with conditions to protect
refuge resources varies considerably, depending upon the nature of the
mineral rights. For reserved mineral rights—cases where the property
owner retained the mineral rights when selling the land to the federal
government—the Fish and Wildlife Service can require permits only if the
property deed subjects the rights to such requirements. For outstanding
mineral rights—cases where the mineral rights were separated from the
surface lands before the government acquired the property—the Fish and

2
U.S. General Accounting Office, Standards for Internal Control in the Federal
Government, GAO/AIMD-00-2131 (Washington, D.C.: Nov. 1999).

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GAO-03-517 Oil and Gas on Wildlife Refuges

Wildlife Service has not formally determined its position regarding its
authority to require access permits. However, we believe, based on
statutory language and court decisions, that the Fish and Wildlife Service
has the authority to require owners of outstanding mineral rights to obtain
permits. Second, refuge managers lack sufficient guidance, resources, and
training to properly monitor oil and gas operators. Current Fish and
Wildlife Service guidance regarding the management of oil and gas
activities where there are private mineral rights is unclear, according to
refuge staff. Refuge staff said they also lack sufficient resources to oversee
oil and gas activities, which at some refuges are substantial. Only
three refuges in the system have staff dedicated on a full-time basis to
monitoring these activities, and some refuge staff cite a lack of time as a
reason for limited oversight. Staff also cite a lack of training as limiting
their capability to oversee oil and gas operators; the Fish and Wildlife
Service has offered only one oil and gas related workshop in the last
10 years. In addition, on a related management issue, the Fish and Wildlife
Service has not, in all cases, adequately examined new property for
possible contamination from oil and gas activities prior to acquisition.
While the Fish and Wildlife Service requires an assessment of all possible
contamination, the guidance and oversight provided to regional and refuge
personnel are inadequate to ensure that the requirements are met. We
found that three of the Fish and Wildlife Service’s seven regions acquire
lands without fully investigating hazardous substances and environmental
problems for which they may become liable. For example, one region
acquired a former oil storage site that required extensive soil removal and
disposal, costing the Fish and Wildlife Service and others $58,000.
We are recommending that the Secretary of the Interior direct the Director
of the Fish and Wildlife Service to strengthen its management and
oversight practices by (1) collecting and maintaining better data on oil
and gas activities and their environmental effects, and ensuring that
staff resources, funding, and training are sufficient and (2) clarifying
acquisition regulations to ensure that the Fish and Wildlife Service does
not acquire unknown liabilities in its future land acquisitions. We are
also recommending that, to improve the framework for managing and
overseeing oil and gas activities, the Secretary and the Director work with
the Department of the Interior’s Office of the Solicitor to (1) determine
the Fish and Wildlife Service’s existing authority over outstanding mineral
rights and (2) seek from Congress, in coordination with appropriate
Administration officials, including those within the Executive Office of the
President, any necessary additional authority over such rights, and over
reserved mineral rights, to ensure that a consistent and reasonable set

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of regulatory and management controls are in place for all oil and gas
activities occurring on national wildlife refuges. In light of the department’s
perceived limitations of its ability to request additional legislative authority,
Congress may also wish to consider expanding the Fish and Wildlife
Service’s authority to enable it to consistently regulate the surface activities
of private mineral owners on wildlife refuges.
The Department of the Interior’s response to the draft report was mixed.
The department agreed that it could improve its acquisition policy and
guidance. The department was silent on our recommendations that it
should collect and maintain better data on oil and gas activities and their
effects and that it should ensure that staff are adequately trained to oversee
oil and gas activities. We continue to believe these recommendations are
warranted. The department did raise a concern in regards to two of our
recommendations. First, the department questioned whether hiring
additional dedicated staff would be the most cost-effective solution to
improving oversight. In voicing its concern, however, the department
apparently misinterpreted our recommendation for the FWS to
determine what level of staffing is necessary to oversee these activities
as a call to hire additional staff. If the department determines that there
are more cost-effective means to ensure adequate staffing, such as
the use of contractors or temporary staff, that would also satisfy this
recommendation. Second, the department raised concerns about GAO’s
recommendation that it seek additional authority from Congress
to regulate private mineral rights. The department indicated that doing
so would violate the Recommendations Clause of the U.S. Constitution
by infringing upon the role of the President to recommend legislative
action to Congress. We disagree. As a practical matter, we expect that the
department would coordinate legislative proposals with the Administration
and we have clarified the recommendation accordingly. Moreover, as a
legal issue, there is nothing in the Recommendations Clause that bars an
executive branch department from recommending legislation to Congress.
Given the department’s opposition to this recommendation, we have also
raised this matter to Congress for its consideration.

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GAO-03-517 Oil and Gas on Wildlife Refuges

Background

The refuge system comprises 538 refuges, 37 wetland management districts
(an administrative system of thousands of Waterfowl Production Areas and
conservation easements, primarily in the north central United States), and
50 coordination areas.3 The Fish and Wildlife Service (FWS) owns the
surface lands and, in some cases, the mineral rights of National Wildlife
Refuges and Waterfowl Production Areas, while conservation easements
and coordination areas are owned or managed by others. Day-to-day
management of wildlife refuges is the responsibility of local refuge
managers, subject to the direction of seven regional refuge chiefs and
the Chief of the National Wildlife Refuge System (see fig. 1 for a map of
FWS regions). Of FWS’s nearly $1.3 billion budget in fiscal year 2002,
about $319 million was devoted to the operations and maintenance of the
refuge system. In fiscal year 2002, $99.13 million from the Land and Water
Conservation Fund was used for the acquisition of additional refuge lands.4

3
Waterfowl Production Areas, which were incorporated into the refuge system in 1966,
are lands acquired by the FWS using Federal Duck Stamp monies for the preservation
of wetland and grassland areas critical to waterfowl and other wildlife. A majority of
these lands are located in the prairie wetlands of the Dakotas, Minnesota, and Montana.
Coordination areas are federal lands made available to a state by cooperative agreement
between the FWS and the state fish and wildlife agency.
4
The Land and Water Conservation Fund is authorized for, among other things, acquisition
of land and waters for diverse purposes under several different laws. This includes
conservation of endangered or threatened species under the Endangered Species Act, as
well as the acquisition of any areas authorized for the refuge system by specific statutes.
16 U.S.C. § 4061.

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Figure 1: Fish and Wildlife Service Regions

Region 6

Portland

Hadley
Minneapolis

Regio

n1

Region 5
Region 3
Denver

Region 4
Albuquerque
Atlanta

Region 2
Alaska

Region 7

Hawaii

Region 1

Puerto Rico &
Virgin Islands

Region 4

Source: GAO.

Over the years, we and others have examined the effects on the refuge
system of secondary activities,5 such as recreation, military activities,
and oil and gas activities—which include oil and gas exploration, drilling
and production, and transport. Exploring for oil and gas involves seismic
mapping of the subsurface topography. Seismic mapping, regardless of the
technology employed, requires surface disturbance, often involving small
dynamite charges placed in a series of holes, typically in patterned grids.
If seismic mapping reveals potential oil or gas deposits exploratory drilling
begins. Oil and gas drilling and production often requires constructing,
operating, and maintaining industrial infrastructure, including a network of
access roads and canals, local pipelines to connect well sites to production

5
U.S. General Accounting Office, National Wildlife Refuges: Continuing Problems
with Incompatible Uses Calls for Bold Action, GAO/RCED-89-196 (Washington, D.C.:
Sept. 8, 1989).

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facilities and dispose of drilling wastes, and gravel pads to house the
drilling and other equipment. In addition, production may require storage
tanks, separating facilities, and gas compressors. Finally, transporting
oil and gas to production facilities or to users requires transit pipelines.
Typically buried, these pipelines range in size, with some as large as
30 inches in diameter. Pumping stations and storage tanks may also be
needed for pipeline operations.
Under the National Wildlife Refuge System Administration Act of 1966,
as amended, FWS is responsible for regulating all activities on refuges.
The act requires FWS to determine the compatibility of activities with the
purposes of the particular refuge and the mission of the refuge system and
not allow those activities deemed incompatible.6 However, FWS does not
apply the compatibility requirement to the exercise of private mineral
rights on refuges. Department of the Interior regulations also prohibit
leasing federal minerals underlying refuges outside of Alaska, except in
cases where federal minerals are being drained by operations on property
adjacent to the refuge.
Nevertheless, the activities of private mineral owners on refuges are
subject to a variety of legal restrictions, including FWS regulations.
A variety of federal laws affect how private mineral rights owners
conduct their activities.7 For example, the Endangered Species Act of 1973
prohibits the “take” of any endangered or threatened species and provides
for penalties for violations of the act;8 the Migratory Bird Treaty Act
prohibits killing, hunting, possessing, or selling migratory birds, except in
accordance with a permit;9 and the Clean Water Act prohibits discharging
oil or other toxic substances into waters of the United States and imposes
liability for removal costs and damages resulting from a discharge.10

6

16 U.S.C. §§ 668dd(a), (d).

7

State laws also may affect the conduct of oil and gas activities.

8
16 U.S.C. §§ 1538, 1540. The term “take” means to harass, harm, pursue, hunt, shoot,
wound, kills, trap, capture, or collect. 16 U.S.C. § 1532 (19).
9

16 U.S.C. § 703.

10

33 U.S.C. § 1321(b).

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GAO-03-517 Oil and Gas on Wildlife Refuges

Also, FWS regulations require that oil and gas activities be performed in
a way that minimizes the risk of damage to the land and wildlife and the
disturbance to the operation of the refuge. The regulations also require
that land affected be reclaimed after operations have ceased.11 Whether
FWS has authority to impose permitting requirements on private oil and gas
activities is discussed later in this report.

Extent of Oil and Gas
Activities in Refuges

At least 155 of the 575 refuges of the National Wildlife Refuge System
have some past or present oil and gas activities—exploration, drilling and
production, or transit pipelines. Many of these activities are concentrated
around the Gulf Coast of Louisiana and Texas. We found that oil and gas
exploration has occurred at 44 refuges since 1994. We also determined
that there are 4,406 wells on 105 refuges, though only 41 percent of
the wells at 36 refuges are active, with the other wells either plugged
and abandoned or temporarily idle. Active wells on refuge lands produce
roughly 1.1 percent and 0.4 percent of domestically produced oil and gas
from onshore wells, with an approximate value of $880 million based on
2001 prices. In addition, active oil and gas transmission pipelines cross at
least 107 refuges. Bordering refuges, another 4,795 wells reside within
one-half mile outside refuge boundaries, in some cases on lands that FWS
may acquire in the future.

One-Quarter of All Refuges
Have Past or Present Oil and
Gas Activities

About one-quarter, or 155, of the 575 refuges (538 refuges and 37 wetland
management districts) that constitute the National Wildlife Refuge System
have past or present oil and gas activities—exploration, drilling and
production, transit pipelines, or some combination of these (see table 1).12
Since 1994, FWS records show that 44 refuges have had some type of oil
and gas exploration activities—geologic study, survey, or seismic work.
More than one-half of these exploratory activities occurred in the
southeastern and southwestern regions of the United States. We also
identified 105 refuges with inactive or active oil and gas wells and
107 refuges with transit pipelines. Exploration or drilling and production
activities occurred at 120 of the 155 refuges.

11

50 C.F.R § 29.32.

12

This analysis does not include coordination areas, which are managed by states, or
conservation easements, which are not owned by FWS.

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Table 1: Number of Refuges with Oil and Gas Activities, by FWS Region
Unduplicated counts,
by category group

Number of refuges, by category

FWS regiona
1 (Pacific)

Exploration
(survey and
seismic work)b

Drilling and production
(active and inactive oil
and gas wells)c

Active pipelines
(transiting refuge
lands)d

Exploration
and/or drilling
and production

Exploration, drilling
and production,
and/or pipelines

5

20

9

22

24

10

22

24

22

29

1

10

14

10

19

4 (Southeast)

14

28

37

34

45

5 (Northeast)

1

4

6

4

6

6 (MountainPrairie)

9

20

15

24

27

2 (Southwest)
3 (Great LakesBig Rivers)

7 (Alaska)
Total

4

1

2

4

5

44

105

107

120

155

Sources: FWS, Premier Data Services, and Office of Pipeline Safety.
a

See figure 1.

b

Based on GAO’s analysis of refuge reported data to FWS’s Refuge Management Information System,
1994-2001.

c

Based on GAO’s analysis of Premier Data Services’ nationwide well database, January 2003.

d

Based on GAO’s analysis of the National Pipeline Mapping System and Refuge Management
Information System data, 1994-2001.

Wells in the Refuge System Are
Geographically Concentrated

In total, we identified 4,406 oil and gas wells within 105 refuges. The
number of wells per refuge ranged from 1 dry hole well drilled at Willapa
Bay National Wildlife Refuge (NWR) in Washington to 1,120 wells at Upper
Ouachita NWR in Louisiana. Although refuges with oil and gas wells are
present in every FWS region, they are more heavily concentrated in the
Gulf Coast of the United States (see fig. 2). More than one-half of the wells
(2,512) are located on refuges in FWS Region 4 and a majority of these are
in Louisiana.

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Figure 2: National Wildlife Refuges with Oil and Gas Wells

Well status by refuge
(36)
Active wells
Only inactive wells (69)

Source: Premier Data Services (data) and GAO (analysis).

Wells are also concentrated among a minority of the system’s units.
For example, five refuges contain 57 percent of all the wells in the system,
as shown in table 2.

Table 2: Refuges with the Highest Number of Wells

Refuge

FWS region

State

Number of
wells

Upper Ouachita NWR

4

La.

1,120

St. Catherine’s Creek NWR

4

Miss.

465

Deep Fork NWR

2

Okla.

362

Delta NWR

4

La.

338

Lower Rio Grande Valley NWR

2

Tex.

Total

217
2,502

Sources: Premier Data Services (data); GAO (analysis).

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GAO-03-517 Oil and Gas on Wildlife Refuges

A Minority of Wells in
Refuges Are Actively
Producing, Yielding About
1 Percent of the U.S.’s Total
Onshore Production

About 4 out of 10 wells located on refuges are actively producing. Of the
4,406 wells, 1,806, or 41 percent, were known to be actively producing oil
or gas or disposing of produced water as of the most recent reporting
time period as of January 2003. Of the 105 refuges with oil and gas wells,
36 refuges have actively producing wells. The remaining 2,600 wells did
not produce oil, gas, or water during the last 12 months; many of these
were plugged and abandoned or were dry holes.13 Gas wells were the most
common type of well as indicated in table 3.

Table 3: Types of Oil- and Gas-Related Wells Located on National Wildlife Refuges
Type of well

Total

Gas

1,265

Dry hole

967

Unknowna

677

Plugged and abandoned

642

Oil

618

Injection or disposal

99

Oil and gas

65

Active permit

34

Miscellaneousb

23

Temporarily abandoned

10

Coalbed methane

6

Total

4,406

Sources: Premier Data Services (data); GAO (analysis).
a
Permittees had not yet updated the status of these wells to their respective state oil and gas
commissions
b

Includes service, test, recovery, and water wells.

13

Wells that are plugged and abandoned are permanently sealed by cementing the well bore.
Improperly plugged wells can intrude on fresh water supplies or cause fires and seepage.

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GAO-03-517 Oil and Gas on Wildlife Refuges

Active wells on refuge lands produced a total of 23.7 million barrels of
oil and 88,171 million cubic feet of natural gas during the most recent
12 months as of January 2003—about 1.1 percent of the 2.117 billion
barrels of oil and 0.4 percent of the 24,532,514 million cubic feet of natural
gas produced during 2001 (see table 4).14 The 1,806 active oil and gas wells
on refuge lands were roughly 1 percent of the approximately 148,750 active
onshore oil and gas wells in the United States in 2001.15 The value of all
refuge-based production, based on 2001 average prices, was over
$880 million. However, in addition to levels of production and oil and gas
prices, the net benefit of oil and gas activities depends on a number of
factors, including size of the investment in infrastructures and any adverse
effects on the environment, recreation, and tourism.16

Table 4: Oil and Gas Production from Refuge System Wells, January 2003
Refuge-based
production (last Domestic onshore
12 months) production (2001)

Refuge-based
production
(percent of total)

Wellhead price
(2001)

Value of
production

Oil production (barrels)

23,694,548

2,117,512,000

1.1

$21.84 (per barrel)

$517,488,928

Natural gas production
(million cubic feet)

88,171

24,532,514

0.4

$4.12 (per thousand
cubic feet)

$363,264,520

Total

$880,753,448

Sources: Premier Data Services and Energy Information Administration (data); GAO (analysis).

14

All production data are based on information reported to each state oil and gas
commission by oil and gas operators. This information is updated on different cycles
in each state. The totals reported reflect the most recent data as of January 2003.
15

The total number of wells is based on the Energy Information Administration’s Financial
Reporting System for 33 major energy-producing companies based in the United States.

16

The exact economic impact of oil and gas activities in wildlife refuges has never been
estimated, according to FWS officials. Determination of such an impact is extremely
difficult due to a number of factors. Because many of these refuges have had oil and gas
activities for many decades, the effect that these older operations may have had on the local
economy, including the possible adverse impacts on recreation or tourism industries, would
be impossible to measure.

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GAO-03-517 Oil and Gas on Wildlife Refuges

Transit Pipelines Cross Refuges

At least 273 miles of transit pipeline from 49 different oil and gas pipelines
cross 28 of the 138 refuges for which data are available.17 These pipelines
are almost exclusively buried and generally require right-of-way permits
from FWS. The pipelines vary in size, up to 30 inches in diameter and
carry a variety of products, including crude oil, refined petroleum products,
and high-pressure natural gas (see table 5). While pipelines cannot be
constructed across refuge lands unless FWS determines that the pipelines
are compatible with the purposes of the refuge and issues a right-of-way
permit, some pipelines were constructed before FWS acquired the
property. These pipelines did not undergo a compatibility determination
and may not have received a right-of-way permit.

Table 5: Refuges with Oil and Gas Pipelines Crossing Refuge Lands
Number of refuges

Number of pipelines

Miles of pipeline

19

24

146.3

5

7

24.2

4

18

102.4

28

49

273

a

Liquids pipelines

Natural gas pipelinesb
Both liquid and gas
Total

Sources: National Pipeline Mapping System and Department of Transportation (data); GAO (analysis based on 138 of the 575 refuges).
a

Category includes crude oil, liquid petroleum gas, natural gas liquids, and other petroleum products.

b

Category includes natural gas, highly volatile natural gas, and carbon dioxide.

17

Additional pipelines cross some of the 437 refuges for which digital boundary data are not
available and were not analyzed by us. For example, 79 additional refuges for which we did
not have digital boundary data reported to the Refuge Management Information System that
at least 1 transit pipeline crossed their refuges. These figures also do not include smaller
pipelines that are used for gathering production from wells (called flow- or gathering lines).

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GAO-03-517 Oil and Gas on Wildlife Refuges

Transit pipelines may also have associated storage facilities and pumping
stations, such as those we toured at Delta NWR in Louisiana (see fig. 3), but
data are not available to identify how many of these are on refuges.

Figure 3: Pipeline Storage and Loading Facilities, Delta NWR (La.)

Source: GAO.

Additional Wells and
Pipelines Are Located
within One-Half Mile of
Refuge Boundaries

A total of 4,795 wells and 84 transit pipelines reside just outside refuges,
within one-half mile of refuge boundaries. The 4,795 wells bound
123 refuges, 33 of which do not have any resident oil and gas wells.
The 84 pipelines are 186 miles long and border 42 different refuges.
While FWS does not own the land outside refuge boundaries, lands
surrounding refuges may be designated for future acquisition. For example,
at Deep Fork NWR in Oklahoma, 606 wells are within one-half mile outside
current boundaries, and some of this land is within approved boundaries
for future acquisition (see fig. 4).

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GAO-03-517 Oil and Gas on Wildlife Refuges

Figure 4: Deep Fork NWR (Okla.) Current and Approved Acquisition Boundaries

Deep Fork Refuge Boundary
Approved boundary
Refuge
0.5 Mile buffer
Source: FWS and GAO.

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GAO-03-517 Oil and Gas on Wildlife Refuges

Overall Effects of
Oil and Gas Activities
Are Unknown,
but Those Activities
Have Diminished
Some Refuge System
Resources

The overall environmental effects of oil and gas activities on refuge
resources are unknown because FWS has conducted few cumulative
assessments and has no comprehensive data. Available information
indicates that refuge wildlife and habitat have been harmed to varying
degrees by spills of oil, gas, brine,18 and industrial materials as well as
through the construction, operation, and maintenance of the infrastructure
necessary to produce oil and gas. Routine oil and gas activities can
contaminate a refuge and reduce the quantity and quality of habitat
available for wildlife. Over the years, new environmental laws and
improved industry practices and technology have reduced some of the
most detrimental effects of oil and gas activities; however, some harm
to refuges continues to occur and some effects from earlier events have
not been reversed and continue to diminish refuge resources. In addition,
oil and gas operators have taken steps, in some cases voluntarily, to
reverse damages resulting from oil and gas activities, but operators have
not consistently taken such steps and the adequacy of these steps is not
known. FWS does not have an accurate record of the number of spills
on refuges and has conducted few studies on the effects of refuge-based
oil and gas activities and, therefore, does not know the full extent of the
problem or the steps needed to reverse them.

Oil and Gas Activities
Have, to Varying Degrees,
Diminished Refuge
System Resources

Available studies, anecdotal information, and our observations show
that some refuge resources have been diminished to varying degrees by
spills of oil, gas, and brine and through the construction, operation, and
maintenance of the infrastructure necessary to extract oil and gas. The
damage varies widely in severity, duration, and visibility, ranging from
infrequent small oil spills and industrial debris with no known effect on
wildlife, to large and chronic spills causing wildlife deaths and long-term
soil and water contamination. Some damage, such as habitat loss because
of infrastructure development and soil and water contamination, may
last indefinitely while other damage, such as wildlife disturbance during
seismic mapping, is of shorter duration. Also, while certain types of
damage are readily visible, others, such as groundwater contamination and
reduced habitat quality from infrastructure development, are difficult to
observe, quantify, and associate directly with oil and gas activities. Finally,
oil and gas activities may hinder FWS’s ability to manage or improve refuge

18

Brine is water mixed with salts, other minerals, and oil.

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GAO-03-517 Oil and Gas on Wildlife Refuges

habitat, such as seasonal flooding of wetlands or prescribed burns, or
hinder public access to parts of the refuge.

Spills

Spills of oil, gas, and brine have harmed refuge wildlife and habitat. Oil
and gas can injure or kill wildlife by destroying the insulating capacity of
feathers and fur, depleting oxygen available in water, or exposing wildlife
to toxic substances. Long-term effects of oil and gas contamination are
difficult to determine, but studies suggest that effects of exposure include
reduced fertility, kidney and liver damage, immune suppression, and
cancer. Even small spills may contaminate soil and sediments if they
occur frequently. For instance, a study of Atchafalaya and Delta NWRs in
Louisiana found that levels of oil contamination near oil and gas facilities
are lethal to most species of wildlife, even though refuge staff were not
aware of any large spills.19 Figure 5 shows an ongoing clean up of a
relatively small oil spill that occurred at Delta NWR in 2002. Brine spills
can also be lethal to young waterfowl, damage birds’ feathers, kill
vegetation, and decrease nutrients in water. Based on well data from
Premier Data Services, over 19.8 million gallons of brine were produced
from active wells on NWRs during the most recent 12-month reporting
period as of January 2003. Much of this brine was reinjected back into the
ground to prevent surface damage.

19

North Carolina State University, Department of Environmental and Molecular Toxicology,
Chemical Contamination at National Wildlife Refuges in the Lower Mississippi River
Ecosystem, February 2001, for the U.S. Department of the Interior.

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GAO-03-517 Oil and Gas on Wildlife Refuges

Figure 5: Ongoing Cleanup of Oil Spill at Delta NWR (La.)

Source: GAO.

Note: Absorbent pads and booms in foreground.

The 16 refuges we visited reported oil, gas, or brine spills, although the
frequency and effect of the spills varied widely. For instance, Hopper
Mountain NWR in California reported two oil spills in 1990, the only spills
since 1974, and refuge records indicated that the operator cleaned up each
spill quickly and that refuge staff detected no effect on wildlife. In contrast,
Anahuac NWR in Texas reported at least 7 oil spills since 1991, including
1 pipeline spill that killed over 800 large fish such as mullet and redfish
and over 180,000 menhaden, a small but ecologically important fish. FWS
officials said that natural gas leaks generally pose a lower risk to habitat
than oil spills, but a gas leak in 2000 at Sabine NWR in Louisiana killed
fish, crabs, and amphibians. Brine spills have also damaged refuges. For
example, Atchafalaya and D’Arbonne NWRs in Louisiana reported that
brine spills had killed vegetation in the area of the spill. At these refuges,
salt concentrations in the soil have remained high and continued to spread

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GAO-03-517 Oil and Gas on Wildlife Refuges

for decades after a spill, and some sites do not support vegetation
years afterwards.
The exact number and size of oil and gas spills on NWRs is not known.
Nationally, FWS reported that 348 oil and gas spills were located on or
near refuges during fiscal year 2002, although there are limitations to this
figure. First, it includes spills resulting from activities not associated with
oil and gas production or transit pipelines, such as shipping accidents.
Second, FWS calculated the number of spills by reviewing spill reports
from the National Response Center and other parties that did not always
identify if a refuge is affected. Third, not all spills are required to be
reported. Clean Water Act regulations require operators to report spills of
any quantity if they cause a sheen to form on waters subject to federal
jurisdiction.20 Other spills are subject to state reporting requirements,
which vary. For instance, Texas requires operators to report spills over
210 gallons, while Louisiana requires operators to report spills over
42 gallons. Finally, refuge staff told us that they knew of spills that
operators never reported.

Infrastructure

Constructing, operating, and maintaining the infrastructure necessary to
produce oil and gas can harm wildlife by reducing the quantity and quality
of habitat. At Kenai NWR in Alaska, for instance, oil and gas wells and
associated facilities have eliminated at least 524 acres of habitat, while
other infrastructure, such as access roads and pipelines, has eliminated an
additional 424 acres. While this loss of habitat represents a very small
proportion of total refuge acreage, refuge staff determined that it
eliminated food sources that would have supported between 41 and
136 cow moose and 411 snowshoe hares. In other instances, habitat lost
to infrastructure development is negligible—for example, the presence
of a wellhead or pipelines, such as the wellhead at Delta NWR shown in
figure 6.

20

40 C.F.R. § 110.3(b).

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GAO-03-517 Oil and Gas on Wildlife Refuges

Figure 6: Wellhead at Delta NWR (La.)

Source:
GAO.
Source:
GAO.

Infrastructure development can reduce the quality of habitat by
fragmenting it and, in some cases, by changing the hydrology of the
refuge ecosystem or contaminating it with toxic substances. Habitat
fragmentation occurs when a network of roads, canals, and other
infrastructure is constructed in previously undeveloped areas of a refuge.
Fragmentation increases disturbances from human activities, provides
pathways for predators, and helps spread nonnative plant species. For
example, the endangered California condor is particularly susceptible to
disturbances from human activities. Condors have been observed landing
on oil pads on the refuge, which poses a safety risk to the birds and reduces
their fear of humans. In addition, FWS estimated in 1980 that oil and gas
activities at Hopper Mountain NWR eliminated about 63 percent of the
potential feeding habitat for condors on the refuge. The current refuge
manager said that the effect of this loss on the condor population may
not be significant because the importance of the feeding habitat provided
by the refuge may not be as great as previously thought. Corridors that
oil and gas operators have developed assist predation—for example,
among songbirds, and allow a pathway for invasive species, a significant
management problem for FWS.21 Finally, officials at Anahuac and
McFaddin NWRs in Texas said that disturbances from oil and gas activities
are likely significant and expressed concern that bird nesting may be

21

U.S. General Accounting Office, Invasive Species: Clearer Focus and Greater
Commitment Needed to Effectively Manage the Problem, GAO-03-1 (Washington, D.C.:
Oct. 22, 2002).

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GAO-03-517 Oil and Gas on Wildlife Refuges

disrupted. However, no studies have been conducted at these refuges to
determine the effect of these disturbances.
Infrastructure networks can also damage refuge habitat by changing the
hydrology of the refuge ecosystem, particularly in coastal areas. For
instance, tens of thousands of acres of freshwater marsh at Sabine NWR,
and elsewhere in Louisiana and Texas, have been lost due to saltwater
intrusion. Saltwater intrusion may change the types of plants in the
marsh and can cause erosion that creates an open water habitat that
is less biologically productive than the marsh. While several factors
contribute to the saltwater intrusion, construction of canals to access oil
and gas facilities is considered by many scientists to be significant. Seismic
studies for oil and gas exploration in coastal marshes can also contribute
to saltwater intrusion. Seismic studies are typically conducted in a grid
pattern and may cover large portions of a refuge. Preparing and conducting
seismic studies may require heavy equipment that can compress the marsh,
which changes the plant community and could allow saltwater to intrude
into the marsh, particularly during droughts that decrease freshwater
flows. At McFaddin NWR, the grid pattern from a 1995 seismic study was
clearly visible from infrared aerial photographs taken after the seismic
study was completed (see fig. 7).

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GAO-03-517 Oil and Gas on Wildlife Refuges

Figure 7: Compressed Marsh Grid from 3-D Seismic Study at McFaddin NWR (Tex.)

Source: FWS.

Note: Infrared photograph (1995).

Moreover, industrial activities associated with extracting oil and gas have
been found to contaminate wildlife refuges with toxic substances such
as mercury and polychlorinated biphenyls (PCB). D’Arbonne, Kenai, and
Upper Ouachita (Louisiana) NWRs reported mercury contamination, and
Kenai NWR reported PCB contamination from oil and gas activities that
must still be cleaned up by FWS if the responsible parties cannot be
found. Mercury and PCBs were used in equipment such as compressors,
transformers, and well production meters, although generally they are no
longer used. Mercury has been linked to brain, kidney, and reproductive
system damage, and PCBs are known animal carcinogens.

Legal and Industry Changes
Have Reduced Some of the
Environmental Effects of
Oil and Gas Activities

New laws prohibiting some of the most harmful industry practices have
helped diminish the adverse effect of current and recent oil and gas
activities on refuge resources. For example, Louisiana now generally
prohibits using open pits to store production wastes and brine in coastal
areas or discharging brine into drainages or state waters. Another example
is Texas, which requires operators to install screens or nets over open
tanks and pits to protect birds from contacting hazardous fluids. Texas also
now requires operators to remove oil and gas infrastructure, such as tanks,

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GAO-03-517 Oil and Gas on Wildlife Refuges

which will not be actively used in the continuing operation of a lease and to
contour closed sites to reduce water contamination.
Improvements in industry practice, including improved technology,
have also reduced the damage caused by oil and gas activities. For
example, where feasible, directional drilling allows (1) operators to
avoid placing wells in sensitive areas such as wetlands and (2) several
wells to be drilled from the same pad, thus reducing the amount of habitat
damaged. Another example is improved geologic mapping through 3-D
seismic technology. While 3-D seismic studies require more vehicle traffic
and may damage more vegetation than 2-D studies, improved geologic
mapping may reduce the number of wells drilled that do not produce oil or
gas and ultimately reduce the amount of habitat damaged. Furthermore,
the impact of 3-D seismic studies has been reduced through other
improvements, including using vehicles less damaging to the surface,
reducing the number of vehicle trips necessary, hand carrying seismic lines
to avoid vehicle damage altogether, and scheduling seismic operations to
avoid sensitive times.
While the relative impacts of the activities have been reduced in
recent years, the effects have not been eliminated. For instance, oil and
gas infrastructure continues to diminish availability of refuge habitat for
wildlife, and spills of oil, gas, and brine that damage fish and wildlife
continue to occur. In addition, several refuge managers reported that
operators do not always comply with legal requirements or follow best
industry practices such as constructing berms (earthen barriers) around
tanks to contain spills, covering tanks to protect wildlife, and removing pits
that temporarily store fluids used during well maintenance.

Reversing Environmental
Damages Is Inconsistent

Environmental damage from oil and gas activities may be partially reversed
by remediating contamination or by reclaiming a site to its prior condition
after oil and gas activities cease. However, oil and gas operators have not
consistently taken steps to reverse environmental damages that have
occurred from oil and gas activities on NWRs. In some cases, officials do
not know if remediation following spills is sufficient to protect refuge
resources, particularly for smaller oil spills or spills into wetlands. In other
cases, FWS has been satisfied with the response. According to refuge
officials and industry representatives, when small oil spills occur, operators
may contain the oil and then remove the oil and the contaminated soil, but
in some cases operators leave the oil and cover it with dirt. In contrast, the
effects of larger spills may be evaluated systematically and remediated by

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GAO-03-517 Oil and Gas on Wildlife Refuges

the operator. For example, in 2000, a ruptured pipeline spilled nearly
200,000 gallons of crude oil at John Heinz NWR in Pennsylvania, damaging
several species of wildlife and covering a frozen pond. In response, the
operator removed the oil and the contaminated soil, replanted damaged
vegetation, funded scientific studies to determine the effect on refuge
wildlife, compensated the refuge for the value lost to visitors during the
spill; and the operator is negotiating with FWS to identify an appropriate
restoration project to compensate for the ecologic value of refuge
resources lost while the refuge recovers from the spill.
Similar to spill remediation, reclamation of oil and gas facilities following
their use is also inconsistent. For instance, an operator at McFaddin NWR
removed a road and a well pad that had been constructed to access a new
well site and restored the marsh damaged by construction after the well
was no longer needed. Figure 8 provides an aerial view of the road and the
well pad shortly after they were constructed and a photo of the same site
following reclamation. Other refuges, however, reported that storage tanks,
debris, and access roads remained long after use (see fig. 9). Refuge staff
cited several reasons for some sites not being reclaimed, including
difficulty identifying the responsible parties, operator insolvency, potential
future use because other locations in the same field remained in operation,
and uncertainty of their authority to require operators to reclaim sites.
Finally, several states do not require operators to reverse the effects of oil
and gas activities.22 For instance, Texas law does not require operators to
remove all buried flowlines or access roads. Several states, such as
Oklahoma and Texas, have established programs to clean up abandoned oil
and gas sites, but funds are limited.

22

For a comparison of state reclamation requirements, see U.S. General Accounting Office,
Alaska’s North Slope: Requirements for Restoring Lands after Oil Production Ceases,
GAO-02-357 (Washington, D.C.: June 5, 2002).

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GAO-03-517 Oil and Gas on Wildlife Refuges

Figure 8: Site Restoration at McFaddin NWR (Tex.)

Sources: FWS (above); GAO (below).

Note: Location of well site before (1996) and after restoration (2002).

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GAO-03-517 Oil and Gas on Wildlife Refuges

Figure 9: Examples of Unreclaimed Infrastructure on NWRs

Sources: GAO (above); GAO (below).

Notes:
Exposed and abandoned flowlines at Anahuac NWR (Tex.) (above).
Abandoned tank battery at Deep Fork NWR (Okla.) (below).

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GAO-03-517 Oil and Gas on Wildlife Refuges

Because operators do not consistently or entirely reverse environmental
damages resulting from oil and gas activities, FWS has had to clean up sites
at its expense or leave sites unreclaimed. FWS spent $387,100 to clean up
14 oil- or gas-related sites between fiscal years 1991 and 2002 and is
planning to spend an additional $108,000 at 3 sites in fiscal year 2003. These
cleanup projects included removing oil- and gas-related debris, plugging
unused gas wells, and addressing mercury contamination at 9 refuges in
Arkansas and Louisiana. Other sites remain to be addressed. There are
2,600 inactive wells on refuges, including an unknown number that have
been abandoned but not plugged, and some sites also have unused tanks,
flowlines, and debris that should be removed. The estimated cost of
cleanup at a site at Anahuac NWR is $1.1 million and currently is deferred
until fiscal year 2009. Refuge managers at some refuges we visited
expressed concern that as oil and gas production declines, operators will
abandon more infrastructure and FWS will have to reclaim these sites.

FWS Documentation of
Environmental Effects Is
Limited and Inconsistent

FWS has conducted few studies to quantify the extent of the damage
caused by oil and gas activities. FWS identifies and assesses contaminant
threats to refuges by conducting Contaminant Assessment Process (CAP)
studies and other studies of contamination. Although CAP studies are
FWS’s primary formal mechanism for identifying potential sources of
contaminants on refuges, the studies do not quantify the extent of any
contamination or its biological effects. Moreover, CAP studies have not
been conducted at all refuges with oil and gas activities, including
many refuges that have significant activities. FWS established the CAP
process in 1996, and to date studies have been completed at about
193 refuges (about 34 percent of all refuges), including 67 of the
155 refuges (43 percent) with oil and gas activities. The number of refuges
with oil and gas activities that have completed CAP studies varies by
region. For instance, in Region 2, which includes Texas, 20 of 28 refuges
(71 percent) had completed CAP studies, while in Region 4, which includes
Louisiana, 11 of 45 (24 percent) had completed CAP studies. The national
coordinator for CAP said that the studies are sequenced to coincide with
each refuge’s comprehensive conservation planning process, which, in
turn, is prioritized within each region based on factors including primary
threats, staffing levels, and funding. Finally, the comprehensiveness of the
studies varies widely. The CAP for Kenai NWR lists over 330 known spills
and describes other potential contamination sources from oil and gas
activities. In contrast, the CAP study for Deep Fork NWR did not list oil and
gas activities as a potential source of contamination, even though there are
over 360 wells on the refuge and the refuge’s comprehensive conservation

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GAO-03-517 Oil and Gas on Wildlife Refuges

plan previously identified concerns over oil and gas activities, including
unplugged wells. The CAP program manager stated that, in this case,
FWS staff did not follow the procedures established in the CAP manual,
which requires that all potential sources of contamination be identified.
If contaminants are identified at a refuge, FWS may conduct additional
studies through its contaminants program. Since 1988, FWS has funded
at least 33 studies at 47 national wildlife refuges nationwide that have
examined the effects of oil and gas activities.23 The scope of the studies
ranged from general investigations to document the presence and
concentration of a variety of contaminants, including those associated
with oil and gas activities, to specific studies to examine the impact of
oil and gas activities on particular refuges. In some cases, contamination
concerns identified in a general investigation may lead to a more detailed
study. For instance, a contaminants survey at Hagerman NWR identified
contaminants from oil and gas activities, but the survey was insufficient
to determine the effects on fish and wildlife. A later study determined
that brine and oil contaminant levels did not appear to be of concern.
In addition to conducting its own studies, FWS uses studies conducted by
other government agencies and universities, in some cases at its request.
For instance, the U.S. Geological Survey is studying the effects of a 3-D
seismic study at Sabine NWR to determine the long-term effects of seismic
activities on refuge plant species, and Drexel University is studying the
impact of an oil spill on wildlife at John Heinz NWR, including any effects
on a rare turtle species.
The lack of information on the effects of oil and gas activities on refuge
wildlife hinders FWS’s ability to identify and obtain appropriate mitigation
measures and to require responsible parties to address damages from
past activities. For instance, the Chief, Division of Environmental Quality,
stated that FWS does not always know the effects of oil and gas activities
on wildlife or habitat and, therefore, does not know what actions should
be required of operators to reduce those effects. Lack of sufficient
information has also hindered FWS’s efforts to identify all locations
with past oil and gas activities and to require responsible parties to
address damages. FWS does not know the number or location of all

23

Some of the 33 studies examined the effects of oil and gas contamination resulting from
activities that are outside the scope of GAO’s study, such as activities occurring outside of
the refuge.

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GAO-03-517 Oil and Gas on Wildlife Refuges

abandoned wells and other oil and gas infrastructure or the threat of
contamination they pose and, therefore, its ability to require responsible
parties to address damages is limited. While recognizing the value of this
type of information, the Chief, Division of Environmental Quality, said that
in some cases FWS lacked the budget to fund environmental studies and
that, in other cases, the cost of obtaining the information was
disproportionate to its management value. In those cases where FWS
has performed studies, the information has proved valuable. For example,
FWS funded a study at some refuges in Oklahoma and Texas to inventory
locations containing oil and gas infrastructure, to determine if they were
closed legally, and to document their present condition. FWS intends to
use this information to identify cleanup options with state and federal
regulators. If this effort is successful, FWS may conduct similar studies on
other refuges. In other cases, refuges have requested studies that have not
been funded. For instance, proposals to examine the effects of oil and gas
activities on a wetland management district in Montana and to identify
unknown oil and gas locations at Kenai NWR have not been approved, in
part, due to lack of funds. In the case of Kenai NWR, refuge staff said that
current operators may be responsible for cleaning up historic sites but that
FWS had to identify the sites before it could make this determination.

FWS Management
and Oversight of Oil
and Gas Activities
Varies Widely

FWS’s management and oversight of oil and gas activities varies widely
from refuge to refuge. Effectively managing these activities across the
refuge system would entail, at a minimum, identifying the risks posed by
the activities, establishing operating conditions to minimize damages, and
monitoring the activities with trained staff to ensure compliance. While
some refuges have adopted comprehensive management and oversight
practices, others have done little. Variation in refuges’ management and
oversight of oil and gas activities stems from differences in FWS’s
regulatory authority depending upon the nature of the mineral rights and
from inadequate guidance, resources, and training for refuge staff. In
addition, on a related management issue, FWS’s policy requiring a complete
and thorough assessment of potentially contaminated property prior to
acquisition is not always adhered to because of inconsistent interpretation
of the requirements by FWS, placing the federal government at risk of
assuming unknown cleanup costs in the future.

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GAO-03-517 Oil and Gas on Wildlife Refuges

Management and Oversight
Varies Among Refuges

FWS’s objective in managing oil and gas on refuge lands is to protect
wildlife habitat and other resources while allowing oil and gas operators
to exercise their mineral rights. Meeting this objective requires basic
management controls. Under the Federal Manager’s Financial Integrity
Act of 1982,24 we have issued management control standards that apply
to all federal agencies.25 These standards require agencies to identify risks,
develop procedures to protect against these risks, and monitor adherence
to the procedures. For refuges, doing so would mean identifying the nature
and extent of oil and gas activities on a refuge and the risks they pose to
refuge resources, adopting risk-reduction procedures such as issuing
access permits with conditions to protect refuge resources and securing
financial assurance that reclamation will occur, and overseeing oil and gas
operations with trained and dedicated staff to ensure compliance with laws
and permits.
The refuges we examined varied in the extent to which they identified
risks, adopted procedures to minimize those risks, and monitored oil and
gas activities. First, some refuge staff did not have complete information on
the extent of oil and gas activities occurring on their refuges. For example,
at Deep Fork NWR refuge staff estimated that there were 600 or more
abandoned wells but knew the location of very few of these wells. Further,
as noted earlier, only 67 of the 155 refuges with oil and gas activities and
10 of the 16 refuges we visited (see table 6) had completed CAP studies
identifying the possible sources and types of contamination on the refuges.
In contrast, at Kenai NWR refuge staff had detailed information on oil and
gas wells and activities on the refuge, had completed an exhaustive CAP
study, and was completing an Environmental Impact Statement on the
effects of oil and gas activities.26

24

33 U.S.C. § 3512(c).

25

U.S. General Accounting Office, Standards for Internal Control in the Federal
Government, GAO/AIMD-00-2131 (Washington, D.C.: Nov. 1999).
26
Swanson River Satellites: Natural Gas Exploration and Development Project, Draft
Environmental Impact Statement, U.S. Fish and Wildlife Service—Alaska Region, July 2002.

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GAO-03-517 Oil and Gas on Wildlife Refuges

Table 6: Elements of Management and Oversight Found at Refuges Visited

Refuges Visited by GAO

State

FWS region

CAP study
completed

Issue permits with
conditions to protect
refuge resources

Hopper Mountain NWR

Calif.

1

x

Deep Fork NWR

Okla.

2

x

Hagerman NWR

Tex.

2

x

xa

Anahuac NWR

Tex.

2

x

x

x

x

McFaddin NWR

Tex.

2

Patoka River NWR

Ind.

3

Delta NWR

La.

4

Atchafalya NWR

La.

4

Sabine NWR

La.

4

D’Arbonne NWR

La.

4

Upper Ouachita NWR

La.

4

John Heinz NWR

Pa.

5

Require bonds Number of staff

xb

x
x

x

x
x

x

x
xa

xb

Medicine Lake NWR

Mont.

6

x

J. Clark Salyer NWR

N.Dak.

6

x

xa

xb

x

a

xb

x

Upper Souris NWR

N.Dak.

6

Kenai NWR

Alaska

7

x

x

x

One-half time

7

10

11

5

2.5

Total

16

Source: GAO.
a

The Bureau of Land Management or the Army Corps of Engineers issues these federal permits.

b

The Bureau of Land Management requires these federal bonds.

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GAO-03-517 Oil and Gas on Wildlife Refuges

Second, permits, which grant oil and gas operators access to specified
areas of a refuge and contain conditions to protect refuge resources, such
as seasonal or vehicle restrictions, to protect air quality, soil, water and
wildlife habitat, were applied to varying degrees at 11 of the 16 refuges we
visited.27 FWS can require permits if the mineral rights are federally owned,
the property deed allows it to, or the operator voluntarily agreed to one.
In the other five cases, refuge staff did not believe they had authority to
require permits. In addition, five refuges obtained financial assurance in
the form of bonds for the future costs of reclamation, or rely on bonds
administered by another federal agency. The other 11 refuges rely instead
on state bonds, which are allowed under FWS guidance, but may provide
different degrees of financial assurance than federal bonds. For example,
the bonds in some states may or may not cover damages caused by oil
and gas activities if the effects are considered to be reasonable impacts
to the land. Reasonable impacts are not consistently defined among
states because impacts to property are determined by what is usual and
customary practice in the area.
Finally, we found little correlation between the scale of oil and gas
activities on refuges and the presence of dedicated staff to oversee them.
Two of the refuges we visited have a fully dedicated staff person to oversee
oil and gas operators—two of the only three in the entire refuge system.
These two refuges in Louisiana collect fees from operators to help pay for
these staff. In contrast, refuges with greater levels of activity do not have
dedicated staff.

27

Although FWS does not have regulations requiring private mineral rights owners to
obtain permits before conducting oil and gas operations, it does have a permitting process
(set forth in the FWS manual) that applies to private mineral rights owners whose deeds
subject them to permitting requirements; to private mineral rights owners who agree to be
bound by a permit, even though their deeds do not subject them to permits; and to others.

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FWS’s Authority to
Require Permits Varies,
Depending on the Nature
of the Mineral Rights

FWS’s legal authority to require oil and gas operators to obtain permits
varies considerably, depending upon the nature of the mineral rights.
Permits granting access to specified areas of a refuge can be used to
establish reasonable operating conditions for private mineral owners to
exercise their rights while protecting refuge resources.28 Variation in
authority to require such permits, and the uncertainty that this sometimes
creates among refuge staff, partly accounts for differences in management
and oversight we found at refuges. At one end of the spectrum, FWS has
broad authority to deny or regulate access to oil and gas on wildlife refuges
when the federal government owns the mineral rights. Under Department
of the Interior regulations, access to federal mineral rights
underlying refuges requires the approval of the Secretary of the Interior
with the concurrence of FWS as to the time, place, and nature of the
activities.29 These regulations also prohibit leasing of federal minerals
on refuges outside of Alaska, except in cases where federal minerals are
being drained by operations on property adjacent to the refuges.

28

In determining what conditions to place in a permit, FWS, like other federal regulatory
agencies, must consider the potential applicability of the Fifth Amendment to the U.S.
Constitution. The Fifth Amendment prohibits the federal government from taking
private property for public use without justly compensating the private property owner.
Government regulation may place restrictions on the use of property to the extent that it
deprives the owner of its use or economic value. In such cases of “regulatory taking,” the
owner may be entitled to just compensation under the Fifth Amendment. Thus, if a permit
“regulated” the mineral rights to the point that they were deemed to be taken, FWS would
have to compensate the owner. See, e.g., Foster v. United States, 607 F.2d 943 (Ct. Cl. 1979)
(government’s refusal to allow permit holders of mineral interest on government land any
right of access for the purpose of extracting minerals was a compensable taking).
29

43 C.F. R. § 3101.5-1.

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In contrast, FWS’s authority is not nearly as broad or as clear with respect
to private owners of mineral rights. FWS’s authority to require permits from
private mineral owners depends on the nature of the private rights and, in
some cases, whether the property deed contains specific language. Private
mineral rights may be either “reserved” or “outstanding.” Reserved rights
are created when the property owner retains the mineral rights at the time
that the surface property is transferred to the federal government.
Outstanding rights are created when the mineral rights are severed from
the surface lands prior to the surface property’s transfer to the federal
government and, thus, a third party owns the rights. FWS’s authority to
regulate oil and gas activities of private owners of reserved mineral rights is
limited under current law.30 The Department of the Interior takes the
position, with which we agree, that FWS can require permits for reserved
rights only if the deed transferring surface ownership to the federal
government contains language that subjects these rights to permitting
requirements. The department’s position was first expressed in a 1986
opinion by the Office of the Solicitor, which, that office recently advised
us, continues to reflect the department’s position. The department’s
position is largely based on a section of the Migratory Bird Conservation
Act that makes reserved rights subject to government regulation if the deed
includes specific requirements, such as permitting requirements, or states
that the rights are subject to regulations prescribed by the Department
“from time to time.”31 Any expansion of FWS’s authority over the owners
of reserved mineral rights, to include cases in which deeds do not contain
such provisions, would thus require a change in the law.
By contrast, it does not appear that the Department of the Interior has
taken a formal position, and the Solicitor’s Office recently declined to take
a position, regarding FWS’s authority to require a permit for private owners
of outstanding mineral rights. The Solicitor’s Office advised us that it would
only provide an opinion on FWS’s authority over outstanding mineral rights
if FWS requested one. Nonetheless, we believe that FWS has broad general
authority, similar to that of the Forest Service and the National Park
Service, to require owners exercising outstanding mineral rights to obtain

30

Appendix III contains a more detailed legal analysis of FWS’s authority to require permits
for both reserved and outstanding rights owners.
31

16 U.S.C. § 715e.

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GAO-03-517 Oil and Gas on Wildlife Refuges

permits that contain conditions to protect a refuge and its wildlife. Both
amendments to the National Wildlife Refuge System Administration Act
of 1966 (1966 Act) and court decisions since the department issued its
1986 opinion support this conclusion. The National Wildlife System
Improvement Act of 199732 (1997 Act) amended the 1966 Act to provide
for a more effective process for determining which secondary uses would
be compatible with refuges and to allow refuges to be managed more like
national forests and parks.33 The 1997 Act established as a mission of the
National Wildlife Refuge System “conservation, management, and where
appropriate, restoration of [fish and wildlife] for the benefit of present and
future generations of Americans.” In separate cases involving the Forest
Service and the National Park Service, federal courts relied on language
similar to that in the 1997 Act to find that these agencies had authority to
require private owners of outstanding mineral rights to obtain permits
before conducting oil and gas activities.34 We believe the same conclusion
follows with respect to FWS’s authority.
As a result of these differences in legal authority, there is a considerable
gap in FWS’s management and oversight of oil and gas activities, but
neither FWS nor we know precisely at how many refuges this is occurring.
Because some refuges may consist of hundreds of individual deeds, it is not
possible without considerable investigation to determine the relative
prevalence of reserved and outstanding mineral rights or the extent to
which property deeds allow FWS to require owners of reserved mineral
rights to obtain a permit, according to FWS officials. FWS officials also said
that differences in FWS’s authority to require permits do not provide for a
consistent way of managing and overseeing oil and gas activities.

32

Pub. L. No. 105-57, 111 Stat. 1252 (1997).

33

H.R. Rep. No. 105-106, at 2-3 (1997).

34
See Duncan Energy Co. v. United States Forest Service, 50 F.3d 584 (8th Cir. 1995); Dunn
McCampbell Royalty Interest, Inc. v. National Park Service, 964 F. Supp. 1125 (S.D. Tex.
1995), aff’d on other grounds, 112 F.3d 1283 (5th Cir. 1997).

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GAO-03-517 Oil and Gas on Wildlife Refuges

Refuges Lack Sufficient
Guidance, Resources,
and Training to Manage
and Oversee Oil and
Gas Activities

In addition to FWS’s inconsistent or undefined authority to require permits
and oversee oil and gas activities, FWS cannot improve its management
and oversight of those activities without better guidance, resources, and
training. According to refuge managers and officials in the Department of
the Interior’s Office of the Solicitor, national guidance is insufficient for
refuge staff to know what authority they have to manage oil and gas
activities, or how to carry out that authority. To supplement the national
guidance, three of FWS’s seven regions have developed more detailed
guidance to assist in managing and overseeing oil and gas activities. For
instance, while the national guidance describes only FWS’s authority to
require permits, guidance in Regions 2 and 6 provides specific examples of
conditions the refuge manager should include in a permit to protect refuge
resources. Staff at Sabine NWR have also drafted, in conjunction with
headquarters staff, more detailed national guidance on managing and
overseeing oil and gas activities, including a detailed description of FWS’s
authority to require permits and many specific conditions to include in
permits. However, FWS has not approved this draft guidance.
Refuge staff we interviewed also cited a lack of staff resources as an
obstacle to properly managing oil and gas activities because staff do not
have time to become familiar with federal and state laws or manage and
oversee oil and gas operations. For example, when FWS purchased
property for Deep Fork NWR, the property deed contained assurances that
FWS would be able to issue permits governing private mineral rights, yet
that information was never conveyed to refuge staff. To determine FWS’s
permitting authority, refuge staff would have to research each individual
property deed. Refuge staff said that they do not have time to do this
research because they must address other management concerns, such as
law enforcement. In contrast, Sabine NWR has a staff person dedicated to
managing oil and gas activities. As a result, this person has sufficient time
to become familiar with applicable laws and to work with operators and
state regulators to manage and oversee oil and gas activities to reduce their
effects on the refuge. This oversight has encouraged the operator to
identify and restore sites damaged by past oil and gas activities.

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Refuges that have access to their own funding mechanisms to recover
damages are better able to manage and oversee oil and gas activities. It is
standard industry practice for operators’ conducting seismic activities to
pay exploratory fees to surface landowners. However, only refuges in
Louisiana and Texas have authority to assess and retain such fees to
cover potential damages caused by seismic activity.35 Refuges in
Louisiana routinely collect these fees to aid management and oversight
and fund restoration efforts, but Region 2 has retained existing policy
preventing refuges in Texas from assessing these fees. To address this
lack of consistency, FWS headquarters officials told us they are drafting
guidance to clarify how these regions should apply their authority to collect
and retain fees. One of the refuges that collects these fees is Sabine NWR,
which uses these fees to fund a staff person specifically dedicated to the
management and oversight of oil and gas activities and to fund mitigation
projects to reduce the effect of oil and gas operations. Figure 10 shows a
recent mitigation project, funded by oil and gas operators at Sabine NWR,
that is designed to restore a marsh damaged by saltwater intrusion due in
part to earlier oil and gas activities. Officials in the Department of the
Interior’s Office of the Solicitor support the use of fees as a more efficient
mechanism than litigation to compensate for damages.

35

Under the Consolidated Appropriations Act, 2000, the Secretary of the Interior may retain
money paid by parties exercising private oil and gas rights for damages to refuge lands in
Texas and Louisiana, to be used to make damage assessments, mitigate or restore the
damages, and monitor and study the recovery of the resources. Pub. L. No. 106-113,
113 Stat. 1501A-140 (1999).

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GAO-03-517 Oil and Gas on Wildlife Refuges

Figure 10: Marsh Restoration Project Funded by Oil and Gas Operators at
Sabine NWR (La.)

Source: GAO.

Trained staff are integral to effective oversight, yet refuge staff we met with
said their principal duties and training as wildlife managers do not prepare
them for managing oil and gas activities. FWS has offered only one
workshop in the last 10 years for refuge staff nationwide that is specific to
managing oil and gas activities on refuges. This 3-day workshop in June
2001, attended by 36 FWS officials, provided information on possible
sources of spills, effects of oil on wildlife, enforcement avenues, and
damage recovery; however, there was limited discussion of FWS’s
regulatory authority. Refuge staff lack training on standard industry
practices, state and federal laws, and identification of oil- and gas-related
problems. For example, at Atchafalaya NWR, the refuge manager has not
been able to enforce special use permits, citing a lack of training about
applicable state and federal laws.

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Acquired Property
Is Not Always
Adequately Assessed
for Contamination

FWS has not always thoroughly assessed property for possible
contamination from oil and gas activities prior to its acquisition. The FWS
manual requires a thorough investigation of potential contamination prior
to acquisition of any property so that the full present and future costs of
cleanup can be determined. However, some FWS regions have interpreted
the guidance more narrowly than others. As a result, FWS has not always
conducted a thorough investigation of properties to be acquired, resulting
in unexpected future cleanup costs.
FWS’s guidance requires a complete environmental site assessment to
determine “the likelihood of the presence of hazardous substances or other
environmental problems associated with the property and any remediation
or other clean up costs.” According to FWS contaminant and realty
officials, a thorough investigation as required by the FWS manual would
include an assessment of both the surface and subsurface properties for
contamination. Some regions consistently conduct adequate assessments,
while other regions’ investigations are not as thorough. For example,
Region 6 assesses both the subsurface and surface properties for
contamination, even when acquiring only the surface portion. In two
cases, Region 6 did not acquire property, even when offered as a
donation, because of subsurface contamination from oil and gas activities.
In contrast, FWS Regions 2, 3, and 4 do not always thoroughly investigate
all properties for contamination prior to acquisition. For example, not
examining the subsurface soils for contamination or investigating further
if there is some indication of the presence of contaminants. FWS realty
officials told us that the acquisition guidance needs to be clarified and that
the oversight of regional implementation needs to be improved to ensure
that all new property is thoroughly investigated for contamination.
In one instance, FWS acquired property that is contaminated from oil and
gas activities and is now paying unexpected cleanup costs because staff
did not conduct an adequate assessment of the subsurface property prior
to acquisition. At the Patoka River NWR in Indiana (Region 3), during an
acquisition, FWS staff conducted an initial contamination investigation
and used a state certification of well closure as assurance that the land
was cleaned and closed and did not investigate further, even though they
were aware that the land had contained oil wells and an oil storage facility.
After acquiring the property, FWS found that large amounts of soil were
contaminated with oil. FWS has thus far spent $15,000 and a local
conservation group spent another $43,000 cleaning up contaminated soil.

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Conclusions

The National Wildlife Refuge System is a national asset established
principally for the conservation of wildlife and habitat. While federally
owned mineral rights underlying refuge lands are generally not available
for oil and gas exploration and production, that prohibition does not
extend to the many private parties that own mineral rights underlying
refuge lands. The scale of these activities on refuges is such that some
refuge resources have been diminished, although the extent is unknown
without additional study.
Some refuges have adopted practices—for example, developing data
on the nature and extent of activities and their effects on the refuge,
overseeing oil and gas operators, and training refuge staff to better
carry out their management and oversight responsibilities—that limit
the impact of these activities on refuge resources. If these practices were
implemented throughout the agency, they could provide better assurance
that environmental effects from oil and gas activities are minimized. In
particular, in some cases, refuges have issued permits that establish
operating conditions for oil and gas activities, giving the refuges greater
control over these activities and protecting refuge resources before
damage occurs. However, FWS does not have a policy requiring owners
of outstanding mineral rights to obtain a permit, although we believe
FWS has this authority, and FWS can require owners of reserved mineral
rights to obtain a permit if the property deed subjects the rights to such
requirements. Expanding or confirming FWS’s authority to require
reasonable permit conditions and oversee oil and gas activities, including
cases where mineral rights have been reserved and the property deed does
not already subject the rights to permit requirements, would strengthen
and provide greater consistency in FWS’s management and oversight. Such
a step could be done without infringing on the rights of private mineral
owners. Finally, FWS’s land acquisition guidance is unclear and oversight is
inadequate, thereby exposing the federal government to unexpected
cleanup costs for properties acquired without adequately assessing
contamination from oil and gas activities.

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Recommendations for
Executive Action

To improve the framework for managing and overseeing oil and gas
activities on national wildlife refuges, the Secretary of the Interior
should direct the Director of the Fish and Wildlife Service to take the
following steps:
• Collect and maintain better data on the nature and extent of oil and gas
activities and the effects of these activities on refuge resources.
• Determine what level of staffing is necessary to adequately oversee oil
and gas operators and seek necessary funding to meet those needs,
through appropriations, the authority to assess fees, or other means.
• Ensure that staff are adequately trained to oversee oil and gas activities.
• Clarify guidance and better oversee FWS’s land acquisition process so
that all hazardous substances and environmental problems and future
cleanup costs are fully identified prior to acquisition and unexpected
costs are avoided.
As part of the process of improving the framework for managing and
overseeing oil and gas activities on national wildlife refuges, we further
recommend that the Secretary of the Interior and the Director of the Fish
and Wildlife Service work with the Department of the Interior’s Office of
the Solicitor to (1) determine FWS’s existing authority to issue permits and
set reasonable conditions regarding outstanding mineral rights, reporting
the results of its determination to Congress, and (2) seek from Congress, in
coordination with appropriate Administration officials, including those
within the Executive Office of the President, any necessary additional
authority over such rights, and over reserved mineral rights, so that FWS
can apply a consistent and reasonable set of regulatory and management
controls over all oil and gas activities occurring on national wildlife refuges
to protect the public’s surface interests.

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GAO-03-517 Oil and Gas on Wildlife Refuges

Matter for
Congressional
Consideration

In light of the Department of the Interior’s perceived limitation to its ability
to seek expanded legislative authority over private mineral rights, Congress
may wish to consider providing that authority. Ensuring that FWS has legal
authority to issue permits to holders of both outstanding and reserved
mineral rights would improve FWS’s ability to consistently regulate and
oversee oil and gas operations on wildlife refuges.

Agency Comments and
Our Evaluation

We provided an opportunity for the Department of the Interior and
U.S. Fish and Wildlife Service officials to review a draft of this report.
The comments of the department as expressed by the Acting Assistant
Secretary for Fish and Wildlife and Parks were mixed. The department
agreed that FWS’s acquisition policy and guidance should be improved.
However, the department was silent on our recommendations that the FWS
should collect and maintain better data on oil and gas activities and their
effects and that it should ensure that staff are adequately trained to oversee
oil and gas activities. We continue to believe these recommendations are
still warranted. The department did raise a concern in regards to two of
our recommendations. First, the department questioned whether hiring
additional dedicated staff would be the most cost-effective solution to
improving oversight. However, the department apparently misinterpreted
our recommendation for FWS to determine what level of staffing necessary
to oversee these activities as a call to hire additional dedicated staff. If the
department determines that there are more cost-effective means to ensure
adequate staffing, such as the use of contractors or temporary staff, it could
pursue those actions and be responsive to this recommendation. Second,
while the department was silent on whether it would review the FWS’s
authority to regulate surface access to refuges for owners of outstanding
mineral rights, the department did raise concerns about GAO’s
recommendation that it seek additional authority from Congress to
regulate reserved mineral rights. According to the department, it would be
unconstitutional for it (as an executive branch department) to make such
a request to Congress, because doing so would infringe upon the
President’s authority to recommend legislation to Congress under the
U.S. Constitution’s Recommendations Clause. We fully anticipated in
making this draft recommendation that the department would coordinate
its legislative proposals with the President. In order to make this explicit,
we clarified the recommendation to recognize that the department
should coordinate its legislative request to Congress through appropriate
Administration officials, including those within the Executive Office of
the President.

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Further, as a legal matter, while the Recommendations Clause explicitly
provides for the President to make recommendations to Congress, it
does not deny that same freedom to others. The courts have ruled that
“. . . anyone can propose legislation.”36
The department also disagreed with our characterization of lost condor
habitat at Hooper Mountain NWR in California. The department asked that
we cite the source for this characterization and include additional
clarification and explanation of the effect of oil and gas activities on the
condor reintroduction program at this refuge. FWS itself, in 1980, made the
determination that 70 percent of critical condor habitat was lost due to oil
and gas development at Hopper Mountain NWR. However, this calculation
included both refuge and off-refuge lands. Considering only refuge lands,
lost habitat totaled 63 percent and the report has been revised accordingly.
In an attachment to the letter, the Department of the Interior raised
three additional concerns with our report. These involve our
characterizations of FWS’s land acquisition practices, our inclusion of oil
and gas pipelines in the scope of the report, and the significance of
problems associated with oil and gas activities. First, FWS concurred that
its acquisition policy and guidance could be improved and that regional
implementation has at times been inadequate. Nevertheless, FWS took
exception to our citing problems we found at Patoka River NWR and with
that region’s adherence to established policy in conducting its site
assessment. However, our review clearly indicated that the FWS failed to
conduct additional contamination investigation of lands that FWS officials
knew had supported oil and gas extraction and storage, as required by their
policy. As a result, the FWS acquired lands that are contaminated and has
incurred expenses to remediate that contamination.

36

See Association of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 908
(D.C. Cir. 1993)(“The President has the undisputed authority to recommend legislation
but he need not exercise that authority with respect to any particular subject or, for
that matter, any subject . . .. [A]nyone in the country can propose legislation.”)
(emphasis added).

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GAO-03-517 Oil and Gas on Wildlife Refuges

Second, the department’s Office of the Solicitor raised a concern that
including oil and gas pipelines as an oil and gas activity overstates the
prevalence of oil and gas activities. We disagree; pipeline leaks have
contributed to refuge contamination and affected refuge operations in
other ways. We believe that inclusion of oil and gas pipelines on refuges is
an important factor in assessing the overall scale of oil and gas activities
on refuges. Nevertheless, we have added additional information to the
report that allows readers to differentiate among the types of activities
on refuges, including pipelines.
Third, the department’s Office of Policy Analysis expressed the view that
our reporting of refuge-based oil and gas activities not previously known to
FWS overstated the problem because we did not link these activities to
“significant detrimental” effects. The department also suggested that any
problems associated with oil and gas activities on refuges should be
considered relative to other problems faced by these refuges. However, our
report already states that FWS has not conducted a cumulative assessment
of the effects of oil and gas activities on individual refuges or the refuge
system as a whole. Identifying the presence of these activities should be the
first step toward any such assessment. Comparing these impacts relative to
other threats to refuges is outside the scope of this report.
Finally, the department included a number of technical comments from the
FWS and various department offices that have been incorporated within
the report as appropriate. The Department of the Interior’s letter and our
comments on the letter appear in appendix V.
We conducted our work from June 2002 through March 2003 in accordance
with generally accepted government auditing standards. Appendix IV
contains details of our scope and methodology.

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GAO-03-517 Oil and Gas on Wildlife Refuges

As agreed with your offices, unless you publicly announce the contents of
this report earlier, we plan no further distribution until 30 days from the
report date. At that time, we will send copies of this report to the Secretary
of the Interior and the Director of the U.S. Fish and Wildlife Service.
In addition, the report will be available at no charge on the GAO Web site at
http://www.gao.gov. If you have any questions about this report, please call
me at (202) 512-3841 or William Swick at (206) 287-4851. Key contributors
to this report are listed in appendix VI.

Barry T. Hill
Director, Natural Resources
and Environment

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GAO-03-517 Oil and Gas on Wildlife Refuges

Appendix I

Refuges with Oil and Gas Activities

Name

FWS region

State

Active wells Inactive wells

Alligator River National Wildlife
Refuge (NWR)

4

N.C.

0

9

Anahuac NWR

2

Tex.

50

16

AA
ppp
ep
ned
n
x
id
e
x
Iis

Exploration
activities

Pipelines

x
x
x

x

Aransas NWR

2

Tex.

14

95

Arapaho NWR

6

Colo.

0

1

Arctic NWR

7

Alaska

Arrowwood NWR

6

N.D.

0

1

Atchafalaya NWR

4

La.

2

35

x

x

Attwater Prairie Chicken NWR

2

Tex.

0

11

x

x

Audubon Wetland
Management District (WMD)

6

N.D.

Bald Knob NWR

4

Ark.

0

1

x

Bayou Cocodrie NWR

4

La.

0

36

x

Bayou Sauvage NWR

4

La.

0

4

x

Bear Lake NWR

1

Idaho

0

1

Benton Lake NWR

6

Mont.

Benton Lake WMD

6

Mont.

x

x

x
x

Big Boggy NWR

2

Tex.

0

1

Big Branch Marsh NWR

4

La.

0

4

x

x
x

Big Oaks NWR

3

Ind.

0

2

Bitter Creek NWR

1

Calif.

0

11

x

Bitter Lake NWR

2

N.M.

0

28

x

Black Bayou Lake NWR

4

La.

20

6

x

Bogue Chitto NWR

4

La.

x

Bosque del Apache NWR

2

N.M.

x

Bowdoin Lake NWR

6

Mont.

Bowdoin WMD

6

Mont.

Brazoria NWR

2

Tex.

Breton NWR

4

La.

0

2
x

4

x

2

Ariz.

Buffalo Lake NWR

2

Tex.

Butte Sink Wildlife
Management Area

1

Calif.

0

Cache River NWR

4

Ark.

0

6

Cameron Prairie NWR

4

La.

0

10

x

1
x

0

Page 48

x

25

Buenos Aires NWR

x

1
x
x
x

x

GAO-03-517 Oil and Gas on Wildlife Refuges

Appendix I
Refuges with Oil and Gas Activities

(Continued From Previous Page)
Name

FWS region

State

Active wells Inactive wells
2

0

Exploration
activities

Pipelines

x

x

Canaan Valley NWR

5

W.V.

Carolina Sandhills NWR

4

S.C.

Catahoula NWR

4

La.

8

49

x

Choctaw NWR

4

Ala.

3

6

x

Cibola NWR

2

Ariz.

x

x

Colusa NWR

1

Calif.

0

2

Crab Orchard NWR

3

Ill.

0

20

Crosby WMD

6

N.D.

9

3

Cypress Creek NWR

3

Ill.

0

4

Dahomey NWR

4

Miss.

D’Arbonne NWR

4

La.

Deep Fork NWR

2

Delevan NWR

x
x

x
x

51

88

x

Okla.

0

362

x

1

Calif.

0

7

Delta NWR

4

La.

178

160

Des Lacs NWR

6

N.D.

Detroit Lakes WMD

3

Minn.

Devils Lake WMD

6

N.D.

Egmont Key NWR

4

Fla.

Emiquon NWR

3

Ill.

0

12

Erie NWR

5

Penn.

2

0

Fallon NWR

1

Nev.

0

1

Felsenthal NWR

4

Ark.

0

60

x

Flint Hills NWR

6

Kans.

3

10

x

0

1

Florida Panther NWR

4

Fla.

Grand Bay NWR

4

Miss.

Grand Cote NWR

4

La.

Great Dismal Swamp NWR

5

Va.

Guadalupe-Nipomo Dunes
NWR

1

Calif.

Guam NWR

1

Guam

Hagerman NWR

2

Tex.

x

x

x
x
0

1
x
x

x
0

x

1

x
0

2
x

98

93

x

x

Hailstone NWR

6

Mont.

0

1

Halfbreed Lake NWR

6

Mont.

1

4

Handy Brake NWR

4

La.

x

Hatchie NWR

4

Tenn.

x

Havasu NWR

2

Ariz.

x

Hewitt Lake NWR

6

Mont.

Page 49

3

2

x

x

GAO-03-517 Oil and Gas on Wildlife Refuges

Appendix I
Refuges with Oil and Gas Activities

(Continued From Previous Page)
Name

FWS region

State

Active wells Inactive wells

Hillside NWR

4

Miss.

0

3

Hopper Mountain NWR

1

Calif.

15

2

Humboldt Bay NWR

1

Calif.

J. Clark Salyer NWR

6

N.D.

0

26

J. Clark Salyer WMD

6

N.D.

1

2

John Heinz NWR

5

Penn.

Kenai NWR

7

Alaska

Kern NWR

1

Kirtlands Warbler NWR

Exploration
activities

Pipelines
x
x
x
x

121

43

Calif.

0

2

3

Mich.

2

15

Kirwin NWR

6

Kan.

0

1

Kofa NWR

2

Ariz.

x

x
x

x

x
x

Lacassine NWR

4

La.

2

67

Laguna Atascosa NWR

2

Tex.

5

7

0

5

x

x
x

Lake Mason NWR

6

Mont.

Lake Ophelia NWR

4

La.

Lake Thibadeau NWR

6

Mont.

x

Leopold WMD

3

Wisc.

x

Litchfield WMD

3

Minn.

x

Little River NWR

2

Okla.

0

4

Lostwood WMD

6

N.D.

0

1

x

Louisiana WMD

4

La.
x

x

x

x
x

Lower Rio Grande Valley NWR

2

Tex.

65

152

Mandalay NWR

4

La.

5

34

Mark Twain NWR

3

Ill.

x

Matagorda Island NWR

2

Tex.

x

Mathews Brake NWR

4

Miss.

0

1

Mattamuskeet NWR

4

N.C.

0

1

McFaddin NWR

2

Tex.

76

29

Medicine Lake NWR

6

Mont.

2

2

Medicine Lake WMD

6

Mont.

Merced NWR

1

Calif.

0

1

0

1

x

x
x

x

x

x

Meredosia NWR

3

Ill.

Merritt Island NWR

4

Fla.

x

Minnesota Valley NWR

3

Minn.

x

Mississippi Sandhill Crane
NWR

4

Miss.

Mississippi WMD

4

Miss.

Page 50

0

1

x
x

GAO-03-517 Oil and Gas on Wildlife Refuges

Appendix I
Refuges with Oil and Gas Activities

(Continued From Previous Page)
Name

FWS region

State

Active wells Inactive wells
0

Exploration
activities

Pipelines
x

Montezuma NWR

5

N.Y.

1

Moody NWR

2

Tex.

Mortenson Lake NWR

6

Wyo.

Nisqually NWR

1

Wash.

Ohio River Islands NWR

5

W.V.

11

10

x

Optima NWR

2

Okla.

0

15

x

Ouray NWR

6

Utah

2

5

x

Overflow NWR

4

Ark.

0

2

x

Panther Swamp NWR

4

Miss.

0

13

x

Patoka River NWR

3

Ind.

0

54

x

Pea Island NWR

4

N.C.

Pixley NWR

1

Calif.

Pond Creek NWR

4

Ark.

x

Port Louisa NWR

3

Iowa

x

Quivira NWR

6

Kan.

51

98

Rocky Mountain Arsenal NWR

6

Colo.

0

1

Sabine NWR

4

La.

8

51

x

x

x

x

x
0

1
x

x
0

1

Sacramento River NWR

1

Calif.

1

14

Saddle Mountain NWR

1

Wash.

0

26

Salt Plains NWR

2

Okla.

0

9

Salton Sea NWR

1

Calif.

San Bernard NWR

2

Tex.

3

16

San Luis NWR

1

Calif.

0

4

San Pablo Bay NWR

1

Calif.

0

1

Santa Ana NWR

2

Tex.

0

2

Seal Beach NWR

1

Calif.

15

15

Sequoyah NWR

2

Okla.

0

2

Sherburne NWR

3

Minn.

Shiawassee NWR

3

Mich.

Squaw Creek NWR

3

Mo.

St. Catherine Creek NWR

4

Miss.

x
x

x
x
x

x

x
x
x

0

x

4

0

1

64

401

Stillwater NWR

1

Nev.

0

5

Stone Lakes NWR

1

Calif.

0

2

Sutter NWR

1

Calif.

1

3

Ten Thousand Islands NWR

4

Fla.

0

1

Tensas River NWR

4

La.

Page 51

x

x

x
x

x

x

x

x

GAO-03-517 Oil and Gas on Wildlife Refuges

Appendix I
Refuges with Oil and Gas Activities

(Continued From Previous Page)
Name
Tetlin NWR

FWS region
7

State

Active wells Inactive wells

Exploration
activities

Pipelines
x

Alaska

Texas Point NWR

2

Tex.

0

3

x

Tishomingo NWR

2

Okla.

0

6

x

Trinity River NWR

2

Tex.

0

3

x

Upper Mississippi River NWR

3

Wisc.

0

1

x
x
x

908

212

x

N.D.

0

10

x

2

Okla.

0

10

Wheeler NWR

4

Ala.

White River NWR

4

Ark.

x

Whittlesey Creek NWR

3

Wisc.

x

Willapa Bay NWR

1

Wash.

Windom WMD

3

Minn.

Upper Ouachita NWR

4

La.

Upper Souris NWR

6

Washita NWR

Yukon Delta NWR

7

Alaska

Yukon Flats NWR

7

Alaska

Total

x
x

x

0

x

x

1
x
x
x

1806

2600

44

107

Sources: Premier Data Services (well data), FWS (exploration and pipeline data), and DOT (pipeline data).

Page 52

GAO-03-517 Oil and Gas on Wildlife Refuges

Appendix II

Summary of Oil and Gas Activities at
Refuges Visited

Refuge (State/FWS region)

Nature and extent of oil and
gas activity

Environmental effects

Management and oversight

Hopper Mountain NWR (Calif./1) • 17 wells (15 active)
• 3 production pads
• Unknown number of flow lines

Feeding habitat for endangered
California condors on refuge
reduced by 63 percent. Minor
soil contamination from oil spills.

County issues conditional use
permits and works closely with
the Fish and Wildlife Service
(FWS).

Deep Fork NWR (Okla./2)

• 362 wells
• Unknown number of flow lines

Old and unused infrastructure
and numerous unplugged wells.
Brine spills have killed
vegetation.

Although the property deed
stipulates that a special use
permit and bond are required,
the refuge does not require
permits or bonds.

Hagerman NWR (Tex./2)

• 191 wells (98 active)
• 5 production pads
• 2 transmission lines and
several flow lines

Old and unused infrastructure
and numerous unplugged wells.

All oil and gas activities are
permitted through the Army
Corps of Engineers with
FWS input.

Anahuac NWR (Tex./2)

• 66 wells (50 active)
• 3 production pads
• 3 transmission lines, numerous
flow lines

Oil spills have killed wildlife and
brine spills have killed
vegetation. Abandoned
infrastructure, including flow
lines and storage tanks remain
at site.

Refuge sometimes issues
voluntary permits. Do not require
operators to post bonds, but in
one case, has collected fees for
damage that exceeded the
conditions of the special use
permit.

McFaddin NWR (Tex./2)

• 105 wells (76 active)
• 3 production pads
• 5 major transmission lines

Soil and groundwater
contamination from oil spills.
Abandoned infrastructure
remains at site.

Refuge issues voluntary special
use permits with conditions to
protect refuge resources.

Patoka River NWR (Ind./3)

Soil and water contamination
• 54 wells
• 3 transmission lines, numerous from oil spills. Abandoned
infrastructure remains at site.
flow lines

Delta NWR (La./4)

• 338 wells (178 active)
• 2 fields, each with production
facilities
• 6 transmission lines and large
storage facility

Sediment contaminated by oil
spills. Saltwater intrusion due to
subsidence. Abandoned
infrastructure remains at the site.

Refuge issues special use and
right-of-way permits with
conditions imposed by FWS and
collects mitigation fees. One staff
dedicated to oversight activities.

Atchafalya NWR (La./4)

• 37 wells (2 active)
• 3 production pads
• 5 transmission lines and
numerous flow lines

Brine spills have killed
vegetation. Old and unused
infrastructure, including storage
tanks, remains at the site.

Although the property deed
requires a special use permit
and an approved plan of
operations, the refuge has not
requested a plan of operations.
In the past, the refuge has
issued special use permits, but
the current operator refuses to
agree to their conditions.

Page 53

Appendx
Ii

Refuge does not require
voluntary use permits or bonds.

GAO-03-517 Oil and Gas on Wildlife Refuges

Appendix II
Summary of Oil and Gas Activities at
Refuges Visited

(Continued From Previous Page)
Refuge (State/FWS region)

Nature and extent of oil and
gas activity

Environmental effects

Management and oversight

Sabine NWR (La./4)

• 59 wells (8 active)
• 4 production pads with storage
and separation facilities
• 9 transmission lines
(100 miles) and 40 active flow
lines (50 miles)

Pipeline spill caused wildlife
fatalities and contamination.
Habitat loss from saltwater
intrusion and construction of
roads, canals, and other
facilities. Habitat fragmentation
has contributed to increased
number of predators.

The refuge collects fees from
operators to fund full-time
oversight position. Voluntary
permits issued to manage
operator activities.

D’Arbonne NWR (La./4)

• 139 wells (51 active)
• 1 storage and injection facility
• 5 transit pipelines (75 miles)
and numerous flow lines
(199 miles)

Soil and vegetation damage
from brine spills and old disposal
pits. Mercury contamination.
Numerous abandoned wells
remain at the site.

The refuge does not issue
permits for any of the gas
activities and relies on operator
cooperation.

Upper Ouachita NWR (La./4)

• 1,120 wells (908 active)
• No production pads
• 13 transmission lines
(31 miles) and numerous flow
lines (313 miles)

Soil and vegetation damage
from brine spills and old disposal
pits. Mercury contamination.
Numerous abandoned wells
remain at the site.

The refuge does not issue
permits for any of the gas
activities and relies on operator
cooperation.

John Heinz NWR (Penn./5)

• 10 transmission pipelines

Large pipeline spill resulting in
wildlife deaths and soil and
sediment contamination.

The refuge issues permits for
maintenance activities.

Medicine Lake NWR/WMD
(Mont./6)

• 4 wells (2 active)
• 2 production pads
• Numerous flow lines

Minor soil contamination from oil The refuge staff have developed
spills.
regional management policy and
attach conditions to federal
permits. The refuge assesses a
fee for seismic activities.

J. Clark Salyer NWR and WMD
(N.D./6)

• 29 wells (1 active)
• 2 production pads
• Numerous flow lines

Unknown soil contamination
from oil spills.

Upper Souris NWR (N.D./6)

• 10 wells
• 1 production pad
• Numerous flow lines

Minor soil contamination from oil The refuge staff have developed
spills.
regional management policy and
attach conditions to federal
permits. The refuge assesses a
fee for seismic activities.

Kenai NWR (Alaska/7)

• 164 wells (121 active)
• 60 production pads
• Numerous flow lines

Soil and water contamination
from numerous oil spills.
Mercury and polychlorinated
biphenyl contamination. Lost
habitat from infrastructure
development.

The refuge staff have developed
regional management policy and
attach conditions to federal
permits. The refuge assesses a
fee for seismic activities.

The refuge issues right of way
and special use permits and
requires bonds.

Source: GAO.

Page 54

GAO-03-517 Oil and Gas on Wildlife Refuges

Appendix III

Analysis of Legal Authority of the Fish
and Wildlife Service to Impose Prospective
Permit Requirements

Appendx
iI

The Fish and Wildlife Service’s current authority to regulate, prospectively,
the oil and gas activities of private owners of “reserved” and “outstanding”
mineral rights1 on national wildlife refuges (and those who obtain mineral
rights from these private owners) is limited in a number of ways.2 FWS’s
authority over owners of reserved mineral rights is limited by statute, to
those instances in which the deed transferring the land from the mineral
rights owner to the federal government includes language either requiring
permits or requiring compliance with regulations the Department of the
Interior may adopt in the future, including permitting regulations. FWS’s
authority over owners of outstanding mineral rights is limited in the sense
that FWS’s regulations do not currently require permits. Two of FWS’s
sister land management agencies—the National Park Service and the
United States Forest Service—have regulations that require outstanding
mineral rights owners to obtain permits before engaging in oil and gas
activities on federal lands they manage.3 FWS, on the other hand, has no
such regulations. As discussed below, while it appears that the Department
of the Interior has not taken a formal position on whether FWS has legal
authority to promulgate such regulations, we conclude it has such
authority, under its statutes and related case law.

1
Privately owned mineral rights within wildlife refuges may be “reserved” or “outstanding.”
Reserved mineral rights are those that were reserved by the owner when ownership of the
surface land was transferred to the federal government. Outstanding mineral rights are
those that were reserved before the surface was transferred to the federal government, and
thus are owned by someone other than the party making the transfer to the government.
2
In addition to FWS’s potential authority to establish controls on oil and gas activities on
federal lands in advance of commencement of those activities, FWS also may have rights,
under state law, to address the results of those activities after they occur. In particular, FWS
generally has a typical landowner’s right to seek monetary damages and injunctive relief for
contamination and other injury from activities beyond those reasonably necessary to
explore and extract underlying minerals. See, e.g., United Geophysical Corp. v. Culver, 394
F.2d 393 (5th Cir. 1964); Flying Diamond Corp. v. Rust, 551 P.2d 509 (Utah 1976); Guffey v.
Stroud, 16 S.W.2d 527 (Tex. Comm. App. 1929).
3
See 36 C.F.R. § 9.32 (Park Service); 36 C.F.R. § 51. 50(a) (Forest Service). The Forest
Service regulations are “special use” permit regulations that have been applied to
outstanding mineral rights. See Duncan Energy Co. v. United States Forest Service,
50 F.3d 584 (8th Cir. 1995).

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GAO-03-517 Oil and Gas on Wildlife Refuges

Appendix III
Analysis of Legal Authority of the Fish
and Wildlife Service to Impose Prospective
Permit Requirements

Reserved Rights

The Department of the Interior believes, and we agree, that FWS has legal
authority to require private owners of reserved mineral rights located
within “acquired federal refuges” to obtain “entry permits” only in limited
circumstances, in order to obtain access to the refuge for minerals
exploration and removal. The department’s position was originally set out
in a 1986 legal opinion issued by the department’s Office of the Solicitor
(1986 Opinion),4 and the office recently advised us that the 1986 Opinion
continues to reflect the department’s position. The 1986 Opinion concluded
that FWS generally lacks statutory or other authority to require entry
permits for reserved rights owners and can do so only when the deed
transferring the surface property to the federal government has included
either specific permitting requirements or language subjecting the exercise
of the reserved mineral rights to regulations promulgated by the
department, including permitting regulations. The department’s position is
based on language in the Migratory Bird Conservation Act that was added
by amendment in 1935, making reserved rights subject to requirements
specifically set out in the deed or, if the deed so states, to regulations
prescribed “from time to time” by the Secretary of the Interior.5 If the deed
does not contain such provisions, the exercise of the reserved rights cannot
be subjected to permitting requirements.

4

See Memorandum from the Associate Solicitor, Conservation and Wildlife, to the Assistant
Secretary, Fish and Wildlife and Parks, “Fish and Wildlife Service authority to regulate use of
reserved mineral interests on National Wildlife Refuge lands,” FWS.CW.0661 (Dec. 22, 1986).

5

See Act of June 15, 1935, ch. 261, § 301, 49 Stat. 378, 381-82, codified at 16 U.S.C. § 715e
(“it shall be expressed in the deed or lease that the use, occupation, and operation of
[reserved interests retained by a grantor or lessor from whom the government acquires land
or wildlife refuges] shall be subordinate to and subject to such rules and regulations as are
set out in such deed or lease or, if deemed necessary by the Secretary of the Interior, to such
rules and regulations as may be prescribed by him from time to time”).

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GAO-03-517 Oil and Gas on Wildlife Refuges

Appendix III
Analysis of Legal Authority of the Fish
and Wildlife Service to Impose Prospective
Permit Requirements

As the 1986 Opinion explains, prior to the 1935 amendment, the Migratory
Bird Conservation Act had made all reserved rights subject to regulations
that were prescribed by the department “from time to time.”6 The House
Report associated with the 1935 amendment explains that “some owners of
very desirable tracts are unwilling to convey [property] on such indefinite
and uncertain terms as regulations made ‘from time to time.’ ’’7 The purpose
of the change was to provide those who reserved rights in lands they
transferred to the United States with some contractual certainty, and to
protect them from being required to abide by permitting regulations that
were not in effect when the deed was issued.8

Outstanding Rights

The foregoing limits in the Migratory Bird Conservation Act on how the
department may regulate reserved mineral rights do not apply to the
department’s regulation of outstanding mineral rights. A number of other
legal authorities in related areas indicate, in our view, that FWS has
statutory authority to regulate the exercise of outstanding mineral rights on
federal lands.
In Dunn McCampbell Royalty Interest, Inc. v. National Park Service,
964 F. Supp. 1125 (S.D. Tex. 1995), aff’d on other grounds, 112 F.3d 1283
(5th Cir. 1997), the court ruled that the National Park Service has authority
to reasonably regulate private owners’ access to their oil and gas interests
located beneath park system lands, by requiring approval of a plan of
operations before commencement of exploration or production activities.
The court relied on language in the National Park Service Organic Act
directing the Park Service to “protect and regulate” national parks so as to
“conserve the scenery and the natural and historic objects and the wildlife
therein and to provide for the enjoyment of the same in such manner and
by such means as will leave them unimpaired for the enjoyment of future
generations,” as well as language directing the Department of the Interior

6

See Act of Feb. 18, 1929, ch. 257, § 6, 45 Stat.1222, 1223.

7

H.R. Rep. No. 74-886, at 2 (1935).

8
United States v. Little Lake Land Co., 412 U.S. 580, 597-99 (1973). See also Caire v. Fulton,
No. 84-3184 (W.D. La. Feb. 10, 1986) (relying on the 1935 amendment and legislative history
in holding that Interior did not have authority to impose permitting requirements on private
owners of mineral interests when those interests were reserved from federal control as part
of the acquisition of the land through condemnation).

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Appendix III
Analysis of Legal Authority of the Fish
and Wildlife Service to Impose Prospective
Permit Requirements

to issue regulations “as . . . deem[ed] necessary or proper for the use of the
parks . . . under the jurisdiction of the National Park Service.”9
Similarly, in Duncan Energy Co. v. United States Forest Service,
50 F.3d 584 (8th Cir. 1995), the Eighth Circuit court ruled that although the
Forest Service may not completely deny access to private owners of
mineral interests located within National Forest System lands, the Forest
Service may impose reasonable conditions on the use of the federally
owned surface and thus may require mineral owners to obtain approval
before exploring for or developing minerals. The court relied on language
in the Bankhead-Jones Farm Tenant Act that directs the Department of
Agriculture (the Forest Service’s parent agency) “to develop a program of
land conservation and land utilization” and to issue regulations necessary
to “regulate the use and occupancy of property acquired [for the National
Forest System] in order to conserve and utilize it.”10 The court also relied
on the Forest Service’s “special use” regulations providing that “[a]ll uses of
National Forest System lands . . . are designated ‘special uses’ [and must be
approved by an] authorized officer.11
The statutes addressed in Dunn McCampbell and Duncan bear a number
of similarities to the National Wildlife Refuge System Administration Act
(Refuge System Administration Act), which governs the National Wildlife
Refuge System. Notably, language added to the Refuge System
Administration Act by the National Wildlife Refuge System Improvement
Act of 1997 is very similar to the language of the National Park Service
Organic Act relied upon by the Dunn McCampbell court. As amended in
1997, the Refuge System Administration Act now provides that the mission
of the NWRS is to administer lands for the “conservation, management, and
where appropriate, restoration of [fish and wildlife] for the benefit of
present and future generations of Americans” and directs the Secretary of
the Interior to “ensure that the biological integrity, diversity, and
environmental health of the System are maintained for the benefit of

9
16 U.S.C. §§ 1, 3; see 964 F. Supp. at 1133. The court in Dunn McCampbell left open the
possibility that the Park Service’s regulation of the mineral interests might constitute a
“taking” for which the owner should have been compensated under the Fifth Amendment to
the Constitution, and the court transferred the dispute over the owner’s taking claims to the
appropriate judicial forum in Dunn McCampbell.
10

50 F.3d at 589, citing 7 U.S.C. §§ 1010, 1011(f).

11

50 F.3d at 589, citing 36 C.F.R. § 251.50(a).

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GAO-03-517 Oil and Gas on Wildlife Refuges

Appendix III
Analysis of Legal Authority of the Fish
and Wildlife Service to Impose Prospective
Permit Requirements

present and future generations of Americans.”12 The Refuge System
Administration Act also explicitly authorizes the Secretary of the Interior to
issue regulations to carry out the act.13 Similarly, as in the statute relied on
by the Duncan court regarding the Forest Service’s permitting authority,
the 1997 amendments to the Refuge System Administration Act added
language directing the Secretary of the Interior to “provide for the
conservation of fish, wildlife, and plants, and their habitats within the
[Refuge] System.”14
Thus, as with the statutes at issue in Dunn McCampbell and Duncan, the
1997 amendments to the Refuge System Administration Act authorize the
Department of the Interior to manage the National Wildlife Refuge System
with the same type of policy direction and management standards with
which the Park System and the Forest System are managed, including
issuance of permitting regulations.15 The legislative history of the Refuge
System Administration Act confirms Congress’s concern for ecosystem and
fish and wildlife conservation and for ensuring that uses of the refuges are
compatible with their purposes.16 Although neither the Administration Act’s
1997 amendments nor their legislative history specifically refers to
regulation of the activities of private oil and gas operators, the overriding
purpose of the amendments—providing better management to protect
the refuges—together with the reasoning of the courts addressing similar
statutes in Dunn McCampbell and Duncan indicate that FWS has current
authority to require private owners of outstanding mineral rights to obtain
permits before conducting oil and gas operations.

12

16 U.S.C. §§ 668dd(a)(2), (a)(4)(B), added by Pub. L. No. 105-57, §§ 4, 5(a), 111 Stat. 1252,
1254 (1997).
13

16 U.S.C. § 668dd(b)(5).

14

16 U.S.C. § 668dd(a)(4)(A), added by Pub. L. No. 105-57, § 5(a), 111 Stat. 1252, 1254 (1997).

15

See H.R. Rep. No. 105-106, at 3 (1997).

16

Id. at 3-4, 8, 9.

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Appendix IV

Scope and Methodology

Appendx
iIV

To identify the nature and extent of oil and gas activities resident within
the National Wildlife System, we relied on several sources of information.
We began with our 2001 report, which identified 77 units with oil and
gas activities based on the Fish and Wildlife Service’s reported activities
in the year 2000. We used the same information source, FWS’s Refuge
Management Information System (RMIS), and reviewed exploration,
production, and pipeline activities for the years 1994-2001. This
information is self-reported by refuges and, by FWS officials’ admission,
incomplete. In addition, RMIS does not indicate the scale of activities
present on a refuge—for example, whether there is one well or hundreds
of wells. Therefore, we contracted Premier Data Services of Englewood,
Colorado, to provide more accurate and comprehensive data on the extent
and type of oil and gas activities occurring on refuges. Premier maintains
a national database of oil and gas wells collected from well permit data
compiled by each state’s oil and gas regulators. Premier recently
contributed to a study for the Departments of Interior, Agriculture, and
Energy under the Energy Policy and Conservation Act, providing a
comprehensive review of oil and gas resources and constraints on their
development in five basins in the interior West.
To determine the number of wells residing on FWS lands, Premier
compared a county-by-county listing of wells against a list of counties with
refuge system lands provided by FWS. For those refuges in counties with at
least one well, Premier either obtained digital maps of the refuges’ current
land status from FWS or, in those cases where FWS had not digitized the
refuge boundaries, converted paper maps into digital format. Premier then
overlaid the geographic plots of wells nationwide with the digitized maps
to identify wells within refuge boundaries and to identify wells within
½ mile outside the boundaries. (See fig. 11 for a sample plot of the Butte
Sink Wildlife Management Area.) In addition to obtaining information on
the location of oil and gas wells, we also obtained information on the
status, type, and amount of production of oil, gas, and water (brine) from
each well. We eliminated from the database permitted wells that were not
drilled, while wells with any production in the most recent reporting period
we categorized as active; all other wells we categorized as inactive.

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Appendix IV
Scope and Methodology

Figure 11: Butte Sink Wildlife Management Area (Calif.), Plot of Wells and One-Half
Mile Boundary

Butte Sink Refuge
Active wells
Inactive wells

(1)
(8)

Source: Premier Data Services (data) and GAO (analysis).

To identify pipelines transiting refuge lands, we relied on the National
Pipeline Mapping System (NPMS), which is maintained by the Office of
Pipeline Safety in the Department of Transportation and on FWS’s RMIS.
We overlaid the NPMS data on the 138 refuges for which we had digital
refuge boundary data because they also had wells inside or just outside
their boundaries. The FWS had not finished digitizing refuge maps for the
other refuges in the system. NPMS is based on data reported to the Office
of Pipeline Safety by pipeline owners. NPMS includes 99 percent of the
nation’s hazardous liquids (including oil and other petroleum products)
pipelines and 61 percent of natural gas pipelines in the United States.

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Appendix IV
Scope and Methodology

NPMS does not include local gathering lines or pumping and storage
facilities that supplement these lines. To supplement this information, we
included refuges identified in RMIS as having transit pipelines. However,
there may be other refuges with pipelines, not recorded in NPMS, RMIS, or
for which we did not have digital maps.
As part of FWS’s review of this report, they identified additional refuges
that may have oil and gas activities or updated the status of activities at
the refuges listed, but did not offer corroborating documentation. While
this information may have been more current than the Premier or the
Department of Transportation databases, we chose to keep these data
intact and did not make additional adjustments.
We attempted to identify information regarding the overall environmental
effects of oil and gas activities on national wildlife refuges. However,
because FWS had conducted few studies and did not have information
regarding what the overall environmental effects of oil and gas activities
on refuges were and how those effects have changed over time, we
selected at least one refuge in each of FWS’s seven regions for physical
inspection. In making these selections, we attempted to choose a cross
section of refuges considering the type and scale of oil and gas activities,
range of environmental effects, and extent and type of management and
oversight. In total, we visited 16 refuges containing 1,510 active and 2,695
total oil and gas wells, about 84 percent and 61 percent, respectively, of all
oil and gas wells we identified on refuges. For a complete list of refuges we
visited, see appendix II. At each refuge visited, we asked the refuge
manager to describe the effects of oil and gas activities on the refuge,
obtained any available studies of these effects, and visited locations of oil
and gas activity selected by the refuge manager to represent a range of
effects. In addition, we contacted state regulators and industry and
environmental representatives and reviewed state laws, FWS contaminant
reports, and scientific and industry and environmental group reports. To
identify reclamation and remediation performed at the refuges visited, we
reviewed files at each refuge, discussed actions taken with refuge officials,
and reviewed information FWS provided from its cleanup and maintenance
databases. To identify steps FWS has taken to document the environmental
effect on refuge resources, we reviewed Contaminant Assessment Program
studies and additional information FWS provided from its contaminants
database. We also discussed these efforts with FWS officials.
To assess FWS’s management and oversight of oil and gas activities in the
National Wildlife Refuge System, we obtained information on policy,

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Appendix IV
Scope and Methodology

guidance, and practices from headquarters and the seven regional offices
and documented the actual practices in use at the 16 refuges we visited.
To determine the authority of the FWS to require private mineral owners
to obtain permits containing conditions to protect refuge resources from
damage and to oversee oil and gas activities, we obtained information
from the Department of the Interior’s Office of the Solicitor and reviewed
the laws and regulations pertaining to the FWS and other federal land
management agencies and recent court cases concerning private mineral
rights on federal lands. We also identified the type and amount of training
the FWS staff had received and reviewed mechanisms for funding positions
to manage and oversee oil and gas activities. In addition, we interviewed
officials and obtained documentation on FWS’s coordination with, and the
involvement of, other federal and state agencies in the oversight of oil and
gas activities on refuges. Finally, we reviewed the acquisition policies and
practices used by FWS for adding lands to the refuge system, especially
those that contain current or historical oil and gas activities.

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Appendix V

Comments from the Department of the
Interior and U.S. Fish and Wildlife Service

Append
x
i
V

Note: GAO comments
supplementing those in
the report text appear
at the end of this
appendix.

See comment 1.

See comment 2.

See comment 3.

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GAO-03-517 Oil and Gas on Wildlife Refuges

Appendix V
Comments from the Department of the
Interior and U.S. Fish and Wildlife Service

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Appendix V
Comments from the Department of the
Interior and U.S. Fish and Wildlife Service

GAO’s Comments

1. We provided opportunity for the Department of the Interior and the
U.S. Fish and Wildlife Service officials to review a draft of this report.
To protect against the possibility of early disclosure of the report, we
did not provide the department copies of the draft report to retain, but
did give agency officials ample opportunity to review and take notes on
the draft. We allowed department and FWS officials to review a draft of
the report in Washington, D.C.; Denver; Atlanta; and Portland without
restriction as to the time, number of personnel, or note-taking.
2. See our response in Agency Comments and Our Evaluation section on
page 44.
3. See our response in Agency Comments and Our Evaluation section on
page 45.

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GAO-03-517 Oil and Gas on Wildlife Refuges

Appendix VI

GAO Contacts and Acknowledgments

Appendx
iVI

GAO Contacts

Barry T. Hill (202) 512-3841
William R. Swick (206) 287-4851

Acknowledgments

In addition to the names above, Mary Acosta, Paul Aussendorf, Robert
Crystal, Sandra Davis, Jonathan Dent, Doreen Feldman, Chalane Lechuga,
John Mingus, Mehrzad Nadji, and Cynthia Norris made key contributions to
this report.

(360210)

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GAO-03-517 Oil and Gas on Wildlife Refuges

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