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Proposed Rule Would Allow the U.S. Forest Service to Authorize Carbon Capture and Storage Beneath National Forest System Lands

November 17, 2023

On November 3, 2023, the United States Forest Service announced a proposed amendment to its special use regulations at 36 C.F.R. part 251 to allow the Forest Service to review and process applications for carbon capture and storage beneath National Forest System Lands.

The Forest Service’s special use regulations set forth screening criteria that a proponent for a special use permit must meet. An existing screening criterion at 36 C.F.R. § 251.54(e)(1)(iv) does not allow the Forest Service to authorize exclusive and perpetual use and occupancy of National Forest System lands for any purpose. The proposed rule would create an express exception to this prohibition by stating that “the Forest Service may authorize exclusive and perpetual use and occupancy for carbon capture and storage in subsurface pore spaces.”

The proposed rule would also define “carbon capture and storage” as “the capture, transportation, injection, and storage of carbon dioxide in subsurface pore spaces in such a manner as to qualify the carbon dioxide stream for the exclusion from classification as a ‘hazardous waste’ pursuant to United States Environmental Protection Agency regulations at 40 CFR 261.4(h).” This definition would specify that carbon capture and storage does not constitute a hazardous waste and therefore is not subject to the prohibition against authorizing storage of hazardous substances on National Forest System lands at 36 C.F.R. § 251.54(e)(1)(ix).

The proposed rule would not affect the U.S. Environmental Protection Agency’s authority to regulate and permit the underground injection and storage of carbon through its Class VI Underground Injection Control program.

The Forest Service is accepting public comment on the proposed rule through January 2, 2024. Procedures for commenting are outlined in the Federal Register notice.