EQB votes to begin expedited rulemaking on mandatory environmental review for gas projects (R-0495)

The Environmental Quality Board voted April 15 to authorize staff to publish an expedited notice of intent (Revisor file R-0495) to create mandatory environmental review categories for gas resource development projects and to begin a public comment period expected to run from about May 18 to July 2.

Jesse Krzenski, director of the Environmental Review program at EQB, presented staff’s draft rule language and justification, explaining that the board’s role is limited to identifying which project types must undergo environmental assessment worksheets (EAWs) or environmental impact statements (EISs). Staff proposed multiple thresholds: a mandatory EAW for projects with five or more production wells; mandatory EAWs regardless of size where DNR would prohibit or restrict activities under its concurrent rules; mandatory EAWs for projects that incorporate underground injection for waste disposal; and a mandatory EAW for projects that intend to produce gas created in the subsurface by means of underground ejection. For EISs, staff recommended a mandatory EIS for projects using high-volume hydraulic fracturing techniques because of their potential for significant environmental effects.

Krzenski described the expedited timeline required by statute and recommended publishing the notice of intent to adopt rules so the public can review and comment. He said the notice and DNR’s draft rules are expected to be posted concurrently so commenters can examine both packages.

Board members raised several technical and policy questions. Members asked whether the five-well threshold applies per permit application or cumulatively across nearby permittees and whether phased or connected actions could be used to avoid review. Krzenski said thresholds apply to the project as proposed in the permit application and that existing environmental review rules treat connected or phased actions in ways that can capture cumulative effects; he added such RGU (responsible governmental unit) determinations are case-by-case. Member Martin and others warned that permit phasing or separate company structures could be used to stay under thresholds and urged clarity in guidance and justification.

Several members also highlighted tribal concerns that tribal input had not been fully reflected in the draft language and urged staff to keep tribal recommendations in mind as the rules evolve. Krishna Woerheide, Environmental Director for the Grand Portage Band of Lake Superior Chippewa, told the board she supports moving the rules forward but asked EQB staff to continue working with Tribes to incorporate protections for water resources during drilling.

Commissioner Strommen (DNR) cautioned that mandatory categories must be ‘‘clearly implementable’’ and noted a limitation in DNR authority: DNR’s permitting authorities relate to extraction, not to the creation of gas, so some proposed category language (e.g., creation-of-gas triggers) may be not be usable under current DNR authorities unless those authorities change.

After public comment and discussion, Commissioner Kessler moved the resolution authorizing the executive director to sign the notice of intent for expedited rulemaking (revisor file R-0495); board member Holman seconded. Executive Director Catherine Neuschler called the roll and the board approved the resolution with 12 votes in favor. Staff plan to publish the notice (target May 18), open a public comment period (anticipated 45 days), and then return to the board with any revisions and a recommendation on final adoption later in the year.