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Fracking in Big Cypress National Preserve Could Have Been Avoided

The proposed expansion of oil drilling in Big Cypress could have been prevented.

On May, 29th 2002, President George W. Bush and his brother, then Florida Governor Jeb Bush, proposed the federal purchase of $235 million dollars worth of oil leases in Florida: nine oil leases in the Gulf of Mexico for $115 million and $120 million dollars to buyout mineral rights in Big Cypress National Preserve. Eight years before the 2010 Deepwater horizon spill in the Gulf, Jeb Bush described the purchase of mineral rights as needed to stop “oil drilling in two of the most environmentally-sensitive areas of the state.”

In 2005, Taxpayers for Common Sense decried government efforts to purchase Florida mineral rights as “one of the worst land deals in history.”

Today, environmentalists bemoan the failure to purchase mineral rights in Big Cypress as a terrible mistake.

Big Cypress National Preserve was created in 1974 to “ensure the preservation, conservation, and protection of the natural scenic, floral and faunal, and recreational values of the Big Cypress Watershed.” As a swamp, Big Cypress is critical to the watershed of the Everglades. Wetlands purify freshwater and absorb storm surge to prevent floods.

The ecology of Big Cypress is not, however, pristine. Oil production began in Big Cypress in the 1940s. The preserve is home to numerous threatened or endangered species (including about 30 to 35 Florida panthers) considered “indicator species” — indicating the ecosystem, here Big Cypress, is sick.

Burnett Oil Company filed an application with the National Park Service to conduct a seismic survey of 110 square miles (70,454 acres) in the preserve. The study will evaluate the feasibility of drilling more oil wells. The National Park Service just completed an Environmental Impact Study evaluating the Burnett plan.

800px-NEW_OIL_RIG,_NORTH_OF_GUM_SLOUGH,_IN_BIG_CYPRESS_SWAMP_-_NARA_-_544511Burnett Oil Company owns the mineral rights on more than half the 730,000 acres that make up Big Cypress. When Big Cypress was created, the swampland was transferred to the federal government but the the mineral rights lying below the park were retained by the Collier family, who leased their right to drill for oil and gas to Burnett. Since efforts by the Bush administration to buyout the mineral rights on about 500,000 acres in Big Cypress for $120 million dollars were firmly rebuked in 2005, mineral rights in Big Cypress continue to be privately held.

Public debate over further drilling in Big Cypress is contentious. Homeowners worry drilling may occur close to their homes. Environmental groups are concerned that the seismic study may lead to drilling that could contaminate the aquifer that most of Florida relies on for its drinking water.

The Natural Resources Defense Council, National Parks Conservation Association and Conservancy of Southwest Florida expressed concern that even studies exploring the possibility of increased oil drilling in Big Cypress will exacerbate ecological distress since the oil exploration will require use of large trucks and heavy machinery over a 110 square mile swath of pristine wetlands.

The controversy over increased oil drilling in Big Cypress is intensified by the fear that Burnett might use “acid fracking” (a process of pumping acid to stimulate well production).

Although state and federal government may limit the scope of oil drilling activities by permit to protect public health and the environment, the US Constitution protects mineral owners from taking without compensation. Hence, the only way to completely prevent further oil and gas development (with or without acid fracking) in Big Cypress is for the government to purchase the mineral rights.

Which takes me back to my opening statement.

In hindsight, the Collier sale of oil rights hardly looks like a “taxpayer ripoff.” In hindsight, the Bush plan to purchase Florida mineral rights looks like genius.

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Better Regulation of Oil & Gas Drilling in National Parks

The National Park Service (NPS) recently proposed revisions to regulations governing oil and gas drilling in national parks, the so-called 9B regulations.

National parks are a great treasure shared by the American people. When Congress created the national park system, NPS was required to balance the benefits of commercial park usage with the importance of preserving open, pristine lands for future generations. NPS created the 9B Regulations in 1978 to address oil and gas drilling in national parks.


Today, there are twelve national parks in eight states with active oil and gas drilling operations. According to NPS, there are about 534 active drilling operations conducted by 98 operators. And both the number of wells drilled and the number of parks where oil and gas is drilled may grow. A lot.

The reason for increased interest in drilling in national parks is complex. In some national parks, like the Cuyahoga Valley National Park in Ohio and Gauley River National Recreation Area in West Virginia, the mineral rights were severed from the title when the land was acquired by the United States government; in those parks, private parties own the minerals lying below the land in the national parks.

The ability to extract oil and gas from shale using a combination of horizontal drilling and high volume hydraulic fracturing (HVHF) has created a keen interest in exploring all retained mineral estates including those that lie in NPS units. New interest is particularly debated in the Marcellus Shale. Many of these retained mineral rights were long thought worthless by their owners. The natural gas that can now be extracted from shale was viewed as a nuisance gas with no commercial value until about 2008.

Owners with retained mineral rights are now discovering they just may have the potential for great wealth in all but forgotten residual estates. And some of those mineral estates are below our treasured national parks.

A moratorium on conducting oil and gas operations in national parks is not a realistic option. The only way to eliminate all drilling in national parks would be for Congress to authorize purchase of the underlying mineral estates from private owners. Outright purchase is, however, unlikely both politically and economically. Which means drilling in national parks is a fact and ensuring that drilling is done in a safe manner an imperative.

The regulations set up by NPS in 1978 did not contemplate the type or scope of oil and gas drilling now being done. The 9B rules were created before the practice of HVHF and horizontal drilling were combined. Drilling was not being done close to homes or in agricultural lands. When promulgated, few considered the possibility of drilling for miles into a park from land outside the park. Even fewer considered the economic viability of extracting oil and gas from shale in national parks located close to large population centers that depend on the parks for both recreation and to maintain the health of air and water quality. After 38 years, the regulations need reform.

The proposed NPS revisions are extremely important in balancing the rights of property owners with land preservation; and they correct known deficiencies. Specifically, the proposed 9B regulations will: (1) raise the bond and financial assurance requirements so that oil and gas drillers rather than the taxpayers will bear the cost of closing sites; (2) create access and user fees that reflect fair use of national park land by oil and gas drillers; (3) empower the NPS to correct minor violations without having to choose between either taking no action or shutting down only slightly errant operations; and (4) establish a reasonable protocol that brings exempt operations within the 9B rules.

Most drilling operations taking place in national parks today are exempt from NPS regulation– either because the operations were grandfathered or the wells require no federal access. In fact, of the 534 oil and gas drilling operations currently in national parks, 319 are exempt from NPS oversight.

The grandfather provisions originally set out in the 9B rules were never intended to last in perpetuity. The purpose of the grandfather clause was to prevent undue surprise on oil and gas operators not previously covered by the then new 9B regulations. Since the 9B rules have been in place for close to four decades, the rationale for the grandfather clause no longer applies.

Similarly, when the NPS created the access exemption nobody expected oil and gas operators would be engaged in directional drilling from outside a park beneath parkland, as are 78 operating wells in 4 national parks in 4 states. 35 wells were built using horizontal directional drilling from outside the preserve in Big Thicket alone. Well pads located outside a park clearly have less direct impact than those with well pads built in the park; at a minimum, building well pads outside the park or preserve requires less land clearing within the NPS unit. Yet locating outside a park does not prevent all dangers. Regulations are needed to be sure spill prevention measures are in place and finances are available to ensure safe and complete closure when operations cease.

Simply said, creating modern rules to deal with new circumstances in oil and gas development is good for national park users, good for park maintenance, good for ecosystem preservation and good for public health.

The comment period for the proposed revision to the NPS 9B rules ends on December 28, 2015.

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