Activity Report Explorer

Northern San Juan • Entered by Linda McNeal on November 12, 2020

Colorado Oil and Gas 1200 series rulemaking coming from SB 19- 181

October 1, 2020 – October 31, 2020

Key Issue: Oil, Gas, or Mineral Development
Activity Type: Advocacy (rallies, lobbying, meeting decision makers, letters/calls/emails)

Measurable Outcomes

Outcome 1: Advocacy actions (2 letters/postcards)
Outcome 2: Advocacy actions (1 letters/postcards)
Outcome 3: Advocacy actions (1 letters/postcards)[/if 1231]

Short Description of Activity

555 Rivergate Lane B1-110⬧ Durango, CO 81301 ⬧ 970-385-9577⬧ greatoldbroads.org
Date: October 8, 2020
To: Colorado Oil and Gas Conservation Commission
From: Great Old Broads for Wilderness, Colorado Chapters
Re: Comments on the 1200 Series Rulemaking
Greetings:
Thank you for the opportunity to comment on the 1200 series rulemaking coming from SB 19-
181. This letter speaks for approximately 2,000 members and supporters of Great Old Broads for
Wilderness in Colorado. Great Old Broads for Wilderness (Broads) is a national grassroots
organization, led by women, that engages and inspires activism to preserve and protect
wilderness and wild lands with 41 chapters nationwide, with several chapters in Colorado.
We look forward to big and important changes as the COGCC switches from a mission
promoting oil and gas to a mission to protect wildlife and wildlife habitat from damage caused
by the oil and gas industry by declining permits for drilling when these are threatened. We’re
happy to see that SB 19-181 requires that adverse impacts to wildlife and wildlife habitat must be
avoided wherever possible and minimized or mitigated when not. We also applaud the widening
of responsibility to include the protection of landscapes and ecosystems not just individual
species and particular habitats.
We support the vast improvement of protection reflected in the draft rules released in June.
Specifically, the expansion of high priority habitat requiring consultation with CPW, the need for
operators to have Wildlife Protection Plans for all pads and Wildlife Mitigation Plans in high
priority areas, the greater participation of CPW before permits are issued, and the imposition of
compensatory mitigation where impacts are unavoidable are welcome changes.
We ask, however, that you consider stronger protection in some areas. Migration corridors are
critical to the health of our big game populations including bighorn sheep, mule deer, elk, and
pronghorn. There should be NO pads in migration corridors. No ground disturbance is acceptable
in these critical corridors. Habitat fragmentation takes a huge toll on many wildlife species.
Mitigation should not be an option. It’s not enough. This request reflects the requirements of
Governor Polis’ Executive Order 2019-11.
In a time of species extinctions and severe challenges to all life from climate change, we urge the
COGCC to require greater protection for sensitive species and habitats. We are asking that the
buffer around Greater sage-grouse leks be set at two miles rather than one, and set at one mile
rather than just over half a mile for the Gunnison sage-grouse leks. The alarming decline in the
numbers of sage-grouse demands we have better protection. For eagles, the distance f rom
Golden eagle nests should be lengthened from a quarter of a mile to half a mile. In addition, 300-
Great Old Broads for Wilderness
Page 2
foot buffers around nesting areas for Western yellow-billed cuckoos and Southwest willow flycatchers should be the absolute minimum. We also ask that you seriously consider making quarter-mile boundaries around riparian areas rather than requiring just 300 feet and also require plans to eliminate damage to surface waters when there is drilling within 1,500 feet of streams. Certainly, in Colorado we understand the critical need to protect our drought-stricken waterways.
Please ensure that fees for mitigation are sufficient for CPW to put into practice plans that will mean long-term support for mitigation projects necessary to ensure the health of wildlife and their habitat.
Finally, we ask that COGCC expand the scope of its rulemaking to protect entire ecosystems including plants, invertebrates, and soil resources. It’s all connected. Without healthy watersheds, intact plant ecosystems, and nourishing soils the system deteriorates and loses integrity and resiliency.
Thank you again for the opportunity to participate in this rulemaking and allowing us to advocate for the landscapes and species that we cherish as Coloradans.
With gratitude and appreciation,
Suez Jacobson
Board Member
Great Old Broads for Wilderness
Robyn Cascade, Leader Leader, Northern San Juan Broadband/Ridgway, CO Great Old Broads for Wilderness
Anne Dal Vera
Leader, South San Juan Broadband
Durango, CO
Great Old Broads for Wilderness
Cristina Harmon
Leader, Northwest Colorado Broadband
Steamboat Springs, CO
Great Old Broads for Wilderness
Sarah Bransom
Leader, Middle Park Colorado Broadband
Middle Park, CO
Great Old Broads for Wilderness
Sherry Schenk
Great Old Broads for Wilderness
Page 3
Leader,Grand Junction Broadband
Grand Junction, CO
Great Old Broads for Wilderness
Diane Mueller
Leader, South Metro Denver Area Broadband
Highlands Ranch, CO
Great Old Broads for Wilderness
Chris Shaver and Nancy Working
Co-Leaders, Mile High Broads
Denver, CO
Great Old Broads for Wilderness
Fran Silva Blaney and Patience Pasley
Co-Leaders, Wild Watershed Broads
Colorado Springs, CO
Great Old Broads for Wilderness
Karen Ryman
Aspen, CO
Leader, Roaring Fork Broadband
Great Old Broads for Wilderness
Misi N. Ballard
Leader, South Park Broadband
South Park, CO
Great Old Broads for Wilderness
Great Old Broads for Wilderness
Page 4

USDA-Forest Service.
Attn: Director-MGM Staff
1617 Cole Boulevard, Building 17
Golden, CO 80401

Via electronic web submission at: http://www.regulations.gov.
RIN number 0596–AD33.

October 29, 2020

Dear USDA Forest Service:

The following are the comments of the undersigned on the proposed regulations governing Federal oil and gas resources on National Forest System lands, 36 CFR 228.100 et seq., as described in the Federal Register notice of September 2, 2020 (85 Fed Reg 54321 et seq.) and the environmental assessment (EA) prepared for this rulemaking.

All of the endorsers of this letter are interested in management of our national forests and grasslands, including decisions concerning leasing such lands for oil and gas. Development on such leases has many adverse impacts, including, but not limited to: impacts to air quality, wildlife habitat effectiveness and connectivity, soils, water quality, travel management, and scenery.

Overall, we believe the proposed new rule would reduce, if not minimize, opportunities for meaningful public involvement, and lead to more adverse impacts to the environment in areas where oil and gas leasing (and subsequent development) occurs. The rule would encourage the agency to avoid applying the National Environmental Policy Act (NEPA), in violation of that Act and its implementing regulations. The proposed rule also is overly favorable to the energy industry, at the expense of other users of, and the ecologically valuable resources on, national forest lands and national grasslands.

The proposed rule is not acceptable and must be scrapped.

Citations to sections 1XX refer to 36 CFR 228.1XX, either the existing or the proposed rule as indicated.

I. IMPLEMENTING THE PROPOSAL TO ELIMINATE THE LEASING SPECIFIC LANDS PROVISION, FOREST SERVICE LEASING DECISIONS WOULD VIOLATE NEPA AND CUT THE PUBLIC OUT OF IMPORTANT DECISIONS ON LEASING

The current rule requires a national forest unit to make two decisions prior to consenting to the issuance of oil-gas leases: 1) a forest-wide determination of which lands are administratively available for leasing and 2) a decision on leasing specific lands. 36 CFR 228.102(d) and (e), respectively. The latter requires the Forest Service to “[v]erify[] that oil and gas leasing of the specific lands has been adequately addressed in a NEPA document and is consistent with the Forest land and resource management plan.”. Current section 102(e)(1).

This step would be eliminated in the proposed rule, as the individual units would issue a leasing consent decision (103(c)(1)) based on “a forest-wide or area-specific leasing analysis in either a land management plan or a separate leasing analysis”. 103(b). See also preamble at 54315.

The leasing consent analysis would necessarily be broad-scale and not site-specific, as it would cover very large areas, in many cases an entire national forest and/or grassland of a million or more acres. The specific areas that would be offered for lease in subsequent lease sales would not be known, thus site-specific impacts could not be disclosed accurately, if at all.

The preamble attempts to justify the proposed elimination of the requirement for a leasing specific land decision with the following:

The existing regulation directs an administrative review by the Forest Service at the time that specific lands, which have already been subject to an area or forest-wide leasing analysis, are being scheduled for leasing by the Bureau of Land Management. This is not a second, more detailed analysis, but a validation review verifying that oil and gas leasing of the specific lands has been adequately addressed in a NEPA document and is consistent with the applicable land
management plan. The proposed rule would remove this largely duplicative administrative procedure.

85 Fed Reg 54315.

The procedure to ensure that the impacts of leasing specific tracts of land have been disclosed is not duplicative. It ensures that finer-scale details, like habitat for threatened, endangered, and conservation concern species; impacts to scenery and recreation; and possible needed changes to travel management are considered, and requires an additional NEPA analysis if they have not been adequately considered and disclosed. All of these details are easily missed in a broad-scale analysis. An analysis of site-specific effects of leasing and subsequent operations would necessarily be more detailed.

The preamble goes on to complain that the current procedure, requiring a review of impacts from leasing specific lands, causes confusion “among government personnel and the public” and has led to litigation. Preamble, ibid. To the extent the latter is true, it is likely because the Forest Service has not disclosed the impacts of leasing specific lands, i. e., has not complied with NEPA. If it had, there would be no basis for such litigation.

Applying the current rule should not be confusing. Admittedly, it is a judgement call as to what constitutes adequate disclosure of site-specific impacts. But the Forest Service makes these judgements for various projects just about every day. A forest-wide analysis that covers a broad area will not address specific leases or the proposed impacts of operations on them. That means the Forest Service would consent to leasing specific lands without full information on the possible impacts of such an action. That would violate the Council on Environmental Quality regulations implementing NEPA:

The regulations in this subchapter are intended to ensure that relevant environmental information is identified and considered early in the process in order to ensure informed decision making by Federal agencies.

40 CFR 1500.1(b) (2020).

Implementation of the proposed new rule would be likely to generate confusion and consternation among concerned members of the public when leases were issued because people concerned about certain areas being leased and developed would have had no opportunity to comment on the proposed leases and the possible site-specific impacts of developing them.

Relying only on broad-scale analyses for NEPA documentation has been ruled legally insufficient. See Muckleshoot Indian Tribe v. U.S. Forest Service, 177 F.3d 800 (9th Cir. 1999). The Court held that the project-specific NEPA analyses that tiered to a programmatic EIS needed to consider the site specific impacts of a federal action because the programmatic EIS could not consider the site-specific impacts of later developed actions. See also Southeast Alaska Conservation Council v. U. S. Forest Service, Case No. 1:19-cv-00006-SLG, where a federal district court in Alaska overturned approval of a timber sale because the FEIS failed to disclose site-specific locations for roads and treatments.

Failing to provide notice of specific lands prior to being offered for lease would also violate the Federal Onshore Oil and Gas Leasing Reform Act of 1987 (FOOGLRA):

At least 45 days before offering lands for lease under this section, and at least 30 days before approving applications for permits to drill under the provisions of a lease or substantially modifying the terms of any lease issued under this section, the Secretary shall provide notice of the proposed action.

30 U.S.C. 226(f).

To further complicate matters, the new rule states the following:

(d) Effect of leasing consent decision. An authorized Forest Service officer’s identification of lands as open to leasing does not commit the Bureau of Land Management to future leasing actions, nor does it constitute an irretrievable or irreversible commitment of resources.

Proposed section 103(d).

This is misleading. Once a forest-wide or area-wide leasing consent analysis has been approved, the public would have no chance, short of a lawsuit, to have any input on whether any particular lands would be leased. Leases could subsequently be issued, creating basically a property right for the lessee that could not be revoked without the government incurring a large fee. Though a leasing consent decision under the proposed rule would not commit the Forest Service to consent to BLM issuing specific leases, it would ensure that leases could be issued somewhere on all of the lands open to leasing, with only some operational details to be worked out. Thus for the public, the leasing consent decision would be irreversible and ensure an irretrievable commitment of resources.

In spite of the above, the Forest Service appears to have already eliminated consideration of this issue because it has determined it to be “outside the scope of the decision to be made by the Department of Agriculture on the proposed rule”:

Procedural matters regarding requirements of the National Environmental Policy Act, particularly opportunity to comment on site-specific or project-level analyses under 36 CFR 218.

EA at 9. We disagree strongly – the issue of site-specific analysis and opportunity for public comment on proposed leasing is very important for any rule involving analysis and decisions on oil-gas leasing, as is discussed in detail above. Indeed, the Forest Service itself recognizes this importance, at least for ESA-listed species and critical habitat:

If the Forest Service determines that site-specific leasing or operational projects may affect threatened or endangered species or their designated critical habitat, the agency will initiate consultation at the project level as appropriate.

EA at 11. However, under the proposed rule, the site-specific analysis to determine possible impacts to ESA-listed species would never occur, or at least never be required, prior to a decision on whether to consent to leasing any specific areas of land. There would also be no requirement for seeking public input for this critically important issue on any given lease or group of them.

Waiting until the SUPO stage, i. e. after the lease has been issued, for this important analysis of possible impacts, is not acceptable. By then, it may be too late to adequately protect ESA-listed species and their critical habitat because operations would have to be allowed somewhere on each lease. It makes more sense, and much better ensures ESA and NEPA compliance, to identify possible impacts to listed species and habitat well before a lease is issued, and not issue leases in areas where adverse impacts might be the greatest or be too difficult to mitigate.

Similarly, adverse impacts on other resources, such as soils; non-listed wildlife and plants (but ones for whom continued viability is a concern, such as species of conservation concern and sensitive species); watersheds; recreational opportunity; scenery; etc. might not become apparent at the broad, forest-wide scale of the leasing consent analysis.

Site-specific information is also necessary to determine exactly where and what type of stipulations should be applied. For example, the extent of geologically unstable areas and those with high erosion potential will not likely be determined at the forest-wide scale undertaken for the broad-scale analysis that would be used for the proposed leasing consent decision. These are among the areas that would require a no surface occupancy stipulation. See EA at 18, fn 10.

It is very disturbing that the Forest Service seems to believe that avoiding NEPA in oil-gas leasing decisions is a benefit. The Costs and Benefits section of the EA (Appendix D) states in its introduction:

The following table [of costs and benefits] assumes that the agency avoids 50 to 100 percent of supplemental environmental impact statements for lease decisions, and corresponding agency costs are avoided.

EA at 50. But the introduction further states that only seven supplemental EISs have been done since 1998, and the agency would save a mere $200,000 per year (out of an annual budget of over $5 billion) with the new rule. In other words, the new rule would save little personnel time and money, but would still cut the public out of decisions about leasing specific areas and would not ensure compliance with NEPA.

More detailed analysis is needed to ensure that impacts from oil-gas operations can be minimized. The rule must retain a leasing specific lands decision or the equivalent and allow public input on any decision to consent to lease any lands. It must also contain a requirement that specific leases are consistent with the forest plan.

II. ALL REQUESTS FOR WAIVERS, EXCEPTIONS, AND MODIFICATIONS NEED NEPA REVIEW PRIOR TO APPROVAL

The existing rule has the following requirement for consideration of any waivers, exceptions, or modifications (WEMs)

…the authorized Forest officer shall ensure compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4331 et seq.) and any other applicable laws, and shall ensure preparation of any appropriate environmental documents.

Existing section 104(b)(1).

The omission of this important provision in the proposed rule (see proposed section 104 ) is not acceptable. Application of any WEM would allow action that had not undergone an analysis of its impacts. This would be true even if specific leases had been subjected to a site-specific effects analysis and disclosure prior to approval; it would especially be true with no such analysis, as would be the case under the proposed rule. This would further reduce opportunities for interested parties to have any meaningful input into how areas of national forests were to be managed.

In some cases, the requested WEM might be shown to have only a very minor effect, in which case additional NEPA document preparation (or supplementation of an existing NEPA document) would not be needed. However, it is important that the potential effects be examined, and where appropriate (i. e., where potential effects are more than very minor), that the potential impacts of implementing the proposed WEM be disclosed to the public with an opportunity for comment.

III. ENSURE THAT ADVERSE IMPACTS ARE MINIMIZED DURING SURFACE-DISTURBING OPERATIONS.

The current rule has detailed surface use requirements at section 108. The proposed rule contains most of these requirements in proposed section 105; however, two important ones are omitted: cultural and historical resources, and fisheries, wildlife and plant habitat. Existing sections 108(d) and (f) respectively. These are important resources that can be disturbed, damaged, or destroyed by oil and gas exploration, drilling, and production. The new rule must contain provisions requiring protection of these resources to ensure operators know in advance of the need for this protection.

At a minimum, any new rule must contain a requirement that discovery of possible historical or cultural resources be reported to the agency (as the current rule does at section 108(d)), and requirements for protection of habitat for all ESA-listed and -proposed species, and Forest Service sensitive species and species of conservation concern.

IV. SURFACE USE PLANS OF OPERATIONS MUST BE SUBJECT TO NEPA AND BE SUPPLEMENTED AS NEEDED BEFORE UNAUTHORIZED SURFACE USE CAN OCCUR

Existing section 107(a) specifically requires surface use plans of operation (SUPOs) to be subject to NEPA review. Proposed new section 107(a) does not, although it does say that SUPOs proposed to be documented in a decision notice or record of decision are subject to pre-decisional objection under 36 CFR 218. To avoid confusion, this section should be amended to state that all SUPOs shall undergo NEPA review and comment unless it is demonstrated that effects would be minimal. If a CE would be used, the rule should require the agency to identify which CE would be applied and to seek public comment on the proposed use of the CE.

Any revision to the current rule should retain the provision that requires the public to be notified of decisions approving or disapproving SUPOs. Existing rule at 107(c). The proposed rule would eliminate this provision. See proposed rule at 107(c).

Supplements to SUPOs are needed where operations not authorized in the SUPO are proposed. The exiting rule has the following provision:

(d) Supplemental plan. An operator must obtain an approved supplemental surface use plan of operations before conducting any surface disturbing operations that are not authorized by a current approved surface use plan of operations. The operator shall submit a proposed supplemental surface use plan of operations to the appropriate Bureau of Land Management office for forwarding to the Forest Service, unless otherwise directed by the Onshore Oil and Gas Order in effect when the proposed supplemental plan of operations is submitted. …

A supplemental plan is otherwise subject to the same requirements under this subpart as an initial surface use plan of operations.

Existing rule at section 106(d). This provision is transferred to a new section 108, Sundry Notices, in the proposed rule. A sundry notice is defined as follows:

An operator’s request submitted to the Bureau of Land Management to perform work or conduct lease operations not covered by another type of permit or authorization,
or to change operations in a previously approved permit; …

Proposed section 101. In other words, operators would submit proposed changes in SUPOs to the BLM, even though the Forest Service would still be required to review and approve any changes. Proposed section 108(b). It is not clear that the public would have to be notified about possible changes to SUPOs.

The preamble explains why the change is proposed:

The proposed rule would remove paragraph (d), which uses terminology that is inconsistent with the Bureau of Land Management regulations and would instead clarify Sundry Notices in § 228.108.

Preamble at 54316. The fact that the language in existing section 106(d) is inconsistent with BLM regulations (if it even is inconsistent) should not determine the Forest Service’s rule language. While it may be desirable for the Forest Service to have rules that mesh as well as possible with BLM’s rules, the Forest Service must protect the resources on land under its jurisdiction. As with WEMs, omission of the supplementation requirement could allow operations to occur without the possible impacts to surface resources first being disclosed, subjected to public comment and then mitigated or minimized. This further removes possible operations on leases from public review and scrutiny of possible impacts.

Existing section 107(e), which requires review of a supplemental SUPO in the same manner as an initial SUPO, would be removed for the same reason – inconsistency with BLM regulations. Preamble, ibid.

The possible inconsistency with BLM regulations is no excuse for the Forest Service to avoid its responsibility to analyze impacts, involve the public, and protect national forest surface resources.

V. BONDS MUST BE POSTED WITH THE FOREST SERVICE AND BE SUFFICIENT TO ENSURE FULL RECLAMATION OF LANDS DISTURBED IN OIL-GAS OPERATIONS

FOOGLRA requires that bonds be posted prior to surface disturbance for oil-gas operations:

The Secretary concerned shall, by rule or regulation, establish such standards as may be necessary to ensure that an adequate bond, surety, or other financial arrangement will be established prior to the commencement of surface-disturbing activities on any lease, to ensure the complete and timely reclamation of the lease tract, and the restoration of any lands or surface waters adversely affected by lease operations after the abandonment or cessation of oil and gas operations on the lease.

30 U. S. C. 226(g).

The preamble to the proposed rule notes the need for adequate bonds to ensure that surface areas of national forests that are disturbed during oil-gas operations can be reclaimed:

The Forest Service’s experience in managing Federal oil and gas resources since the existing regulations were promulgated in 1990 indicates that in many cases the Bureau of Land Management lease bonds are insufficient to support surface reclamation needs if a lessee or operator defaults.

Id. at 54317. See also EA at 50.

The existing rule requires the Forest Service to determine the cost of reclamation of sites where the surface is disturbed by oil-gas operations:

As part of the review of a proposed surface use plan of operations, the authorized Forest officer shall consider the estimated cost to the Forest Service to reclaim those areas that would be disturbed by operations and to restore any lands or surface waters adversely affected by the lease operations after the abandonment or cessation of operations on the lease.

Existing rule at 109(a). The proposed rule would remove this language and require the agency to determine if the operator’s performance bond with the BLM was sufficient. Proposed rule at 109(a). However, the BLM is not responsible for surface resources on national forest lands; rather, the Forest Service is. Therefore, the Forest Service should determine the bond needed for reclamation independent of the bond posted with the BLM, and require operators to post adequate bonds with the Forest Service for complete surface reclamation.

In that light, the following provision should be rewritten:

If the authorized Forest Service officer determines that additional bonding is necessary, the officer shall give the operator the option of either increasing the bond held by the Bureau of Land Management or filing a separate reclamation bond with the Forest Service in the amount deemed adequate.

Proposed section 109(d). Since any increased bond would ensure protection of surface resources, it should be posted to the Forest Service, since that agency is responsible for the surface resources on its lands.

Under proposed section 109(c),

the authorized Forest Service officer may specify a bond amount to any level, provided that the amount does not exceed the total estimated cost of reclamation based on surface disturbance.

In other words, the authorized officer could choose to require no bond at all, or one that covered only a fraction of the cost of reclaiming the area where oil-gas operations occurred. This is especially inappropriate given that the Forest Service already believes many existing bonds are insufficient. (See quote above in this section.)

Bonds must be sufficient to cover the full cost of reclamation. This provision must be rewritten to require, in all cases, an adequate bond.

Proposed section 109 assumes that the operator has a bond with the BLM. But what if s/he does not? If the operator is new to oil-gas leasing on federal lands, the BLM may have no bond from this operator prior to approval of an application for permit to drill. In any case, as argued above, bonds for reclamation of surface resources for leases on national forests and grasslands should be posted with the Forest Service, and must be high enough to cover the cost of reclaiming the land. Section 109 must be rewritten to reflect this.

VI. COMPLIANCE DEADLINE EXTENSIONS WOULD BE TOO EASILY GRANTED

In the existing rule, an operator, after receiving a notice of non-compliance, may request an extension of time to come back into compliance

if the operator is unable to come into compliance with the applicable requirement(s) or standard(s) identified in the notice of noncompliance by the deadline because of conditions beyond the operator’s control.

Existing rule at 113(a)(2); emphasis added. The proposed rule would remove the highlighted clause. See proposed section 112(c). This weakens the requirement for operators to comply with lease provisions and other applicable requirements. It would encourage the Forest Service to become very lax in holding operators to these requirements, i. e., operators could be allowed additional time to comply just because they were careless, lazy, or didn’t want to comply with lease provisions and other requirements. This could increase the time duration and/or intensity of impacts to water quality, wildlife habitat, scenery, etc.

We agree that operators should be given a reasonable amount of time to come back into compliance with lease provisions and other requirements. However, this time should not be indefinite. Extensions of time for achieving compliance with all requirements must not be extended when it is the operator’s malfeasance or mismanagement that has caused the non-compliance or failure to achieve compliance. Therefore, the provision allowing extensions of time to meet lease and other requirements only for circumstances beyond an operator’s control must be retained in the rule.

VII. THE PROPOSED RULE WEAKENS STANDARDS FOR DETERMINING MATERIAL NON-COMPLIANCE

The proposed rule would reduce the factors considered in determining material non-compliance. Compare new section 113(a) with existing section 113(b)(1). The former does not include the following from the existing rule:

operating without an approved surface use plan of operations, conducting operations that have been suspended, …failing to comply with any term included in a lease, stipulation, or approved surface use plan of operations, the applicable onshore oil and gas order, or an applicable Notice to lessees, transferees, and operators, relating to the protection of a threatened or endangered species.

Existing rule at 113(b)(1). All of these factors should be grounds for determining that an operator is in material non-compliance. Except for failure to timely reclaim, post bond, or reimburse the Forest Service for the costs of abating emergencies, the proposed rule would limit a determination of material non-compliance to

cases where the noncompliance resulted in danger to public health or safety; caused irreparable resource damage; or resulted in an emergency.

Proposed section 113(a)(1). The Forest Service needs to be more proactive here, i. e, to insist on compliance with lease terms and other requirements before the non-compliance results in danger to public health or safety, irreparable resource damage, or an emergency. Under the proposed rule, long-term non-compliance with requirements could continue indefinitely as long as they did not result in an emergency.

The existing standards for determining non-compliance must be retained.

CONCLUSION

The proposed rule weakens existing requirements for public involvement and analysis of impacts leading to consent for leasing of specific lands. It also weakens standards for compliance with lease terms and other requirements, and for posting bonds. It is not acceptable and must not be made final.

Sincerely,

Rocky Smith, Forest Management Analyst
1030 North Pearl St. #9
Denver, CO 80203
303 839-5900
2rockwsmith@gmail.com

Mark Pearson , Executive Director
San Juan Citizens Alliance
PO Box 2461
Durango, CO 81302
mark@sanjuancitizens.org

Karen Tuddenham, Executive Director
Sheep Mountain Alliance
PO Box 389
Telluride, CO 81435
(970) 728-3729
lexi@sheepmountainalliance.org

Denise Boggs, Director
Conservation Congress
2234 Sierra Vista Circle
Billings, MT 59105
406-707-7007
denise@conservationcongress-ca.org

Jason Christensen, Director
Yellowstone to Uintas Connection
P.O. Box 363
Paris, Idaho 83261
Jason@yellowstoneuintas.org

Ara Marderosian, Executive Director
Sequoia ForestKeeper
P.O. Box 2134
Kernville, CA 93238
(760) 376-4434
ara@sequoiaforestkeeper.org

Keith Hammer – Chair
Swan View Coalition
3165 Foothill Road
Kalispell, MT 59901
406-755-1379 (ph/fax)
406-253-6536 (cell phone)
keith@swanview.org

Robyn Cascade, Leader
Great Old Broads For Wilderness
Northern San Juan chapter/Ouray County, Colorado
c/o PO Box 2924
Durango, CO 81302
northernsanjuanbroadband@gmail.com

Arlene Montgomery
Friends of the Wild Swan
PO Box 103
Bigfork, MT 59911
arlene@wildswan.org

Christine Canaly, Director
San Luis Valley Ecosystem Council
P.O. Box 223
Alamosa, CO 81101
(719) 589-1518 (office)
(719) 256-4758 (hm office)
info@slvec.org

Alison Gallensky, GIS Director
Rocky Mountain Wild
1536 Wynkoop St. Suite 900
Denver CO 80202
(303) 546-0214
alison@rockymountainwild.org

Jean Perry, Board member
Franz Froelicher, Board member
James Katzenberger, Board member
Colorado Wild Public Lands
PO Box 1772
Basalt, CO 81621
coloradowildpubliclands@gmail.com

Peter Hart, Staff Attorney
Wilderness Workshop
P.O. Box 1442
Carbondale, CO 81623
970.963.3977 (office), 303.475.4915 (cell)
peter@wildernesswrokshop.org

Sherry Schenk, Leader, Grand Junction Area Broadband
Great Old Broads for Wilderness
379 Ridge View Drive
Grand Junction, CO
gjbroadband2008@gmail.com
970-596-8510

Anne Dal Vera, Leader, South San Juan Broadband
Great Old Broads for Wilderness
54 E. Pine Top Drive
Bayfield, CO 81122
970-884-9352
dalveran@hotmail.com

Nancy Working, Mile High Broadband, Co-leader
Great Old Broads for Wilderness
14981 w 32nd Pl
Golden, CO 80401
nworking@msn.com

Shelley Silbert, Executive Director
Great Old Broads for Wilderness
555 Rivergate Lane B1-110
Durango, CO 81302
shelley@greatoldbroads.org

Emily Hornback
Executive Director
Western Colorado Alliance
Grand Junction, CO 81502
970-256-7650
emily@westerncoloradoalliance.org

October 16, 2020
Submitted via e-planning
Bureau of Land Management Bureau of Land Management
White River Field Office Royal Gorge Field Office
220 E. Market St. 3028 E. Main St.
Meeker, CO 81641 Canon City, CO 81212
Bureau of Land Management Bureau of Land Management
Kremmling Field Office Little Snake Field Office
P.O. Box 68 455 Emerson Street Kremmling, CO 80459 Craig, CO 81625
Re: Scoping comments on BLM Colorado’s March 2021 Oil and Gas Lease Sale
To Whom It May Concern:
Please accept and fully consider these scoping comments on the parcels under consideration for inclusion in BLM Colorado’s March 2021 oil and gas lease sale, submitted on behalf of the National Audubon Society, Audubon Rockies, Conservation Colorado, Rocky Mountain Wild, Barbara Vasquez, National Parks Conservation Association, Evergreen Audubon, Roaring Fork Audubon Society, Fort Collins Audubon Society, Denver Audubon, Boulder County Audubon Society, Black Canyon Audubon Society, Arkansas Valley Audubon Society, Aiken Audubon Society, Grand Valley Audubon Society, Weminuche Audubon Society, Western Colorado Alliance, Great Old Broads for Wilderness, South San Juan Broadband of Great Old Broads for Wilderness, Grand Junction Area Broadband of Great Old Broads for Wilderness, Middle Park Broadband of Great Old Broads for Wilderness, Northwest Colorado Broadband of Great Old Broads for Wilderness, Grand Valley Citizens Alliance, Northern San Juan Broadband of Great Old Broads for Wilderness, League of Oil and Gas Impacted Coloradans, Grand Valley Citizens Alliance, and Colorado Wildlands Project. Our organizations and our members are deeply invested in sound stewardship of our public lands, and we appreciate that BLM is offering a public scoping comment opportunity for the March 2021 oil and gas lease sale.
I. BLM should not be proceeding with lease sales at this time.
BLM is proposing to lease 83 parcels totaling approximately 111,340 acres of public lands and minerals in Jackson, Las Animas, Moffat, Rio Blanco, and Weld Counties. At this point, BLM should not be proceeding with lease sales, including the December 2020 lease sale. In addition, BLM should not permit unsold parcels from the September 2019 and March 2020 lease sales to remain available for noncompetitive leasing.
A. Meaningful public participation in lease sales is not possible.
We are in the midst of a national emergency around COVID-19, which is making it exceptionally difficult for people to participate in comment processes. Proceeding with lease sales would violate
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the public participation requirements of the Federal Land Policy and Management Act (FLPMA) and National Environmental Policy Act (NEPA). As a court reminded BLM earlier this year, “[p]ublic involvement in oil and gas leasing is required under FLPMA and NEPA” and “the public involvement requirements of FLPMA and NEPA cannot be set aside in the name of expediting oil and gas lease sales.” Western Watersheds Project v. Zinke, Memorandum Decision and Order, Case 1:18-cv-00187-REB (D. Idaho February 27, 2020), pp. 32, 40. In particular, FLPMA requires that BLM give “the public adequate notice and an opportunity to comment upon the formulation of standards and criteria for, and to participate in, the preparation and execution of plans and programs for, and the management of, the public lands.” 43 U.S.C. § 1739(e). NEPA requires that “environmental information is available to public officials and citizens before decisions are made and before actions are taken” and reiterates that “public scrutiny is essential to implementing NEPA.” 40 C.F.R. § 1500.1(b). Further, NEPA obligates the BLM to “[m]ake diligent efforts to involve the public in preparing and implementing their NEPA procedures.” 40 C.F.R. § 1506.6(a).
Moving forward with comment periods and decisions that will grant leases for at least ten years when the public is unable to properly participate violates the requirements of NEPA and FLPMA. BLM’s public rooms are closed (making it difficult to conduct research or deliver lease sale protests), and state and local orders are encouraging people to stay at home and limiting travel. Notably, Colorado ranks 25th for broadband for internet access,1 compounding the challenges with participating in the lease sale process. Broadband internet is particularly problematic in rural areas of the state, exacerbating the challenges of participation in areas likely to be affected by leasing. Further, parcels 0173, 6181, 0162, 0196 and 6184 in the Royal Gorge Field Office are split estate. Consequently, there are owners and residents of these lands who will be particularly interested and affected by the proposed sales. Moving forward with lease sales that will require companies to enter on to private land for exploration and development activities is especially irresponsible at this time.
In addition, the Mineral Leasing Act (MLA) requires BLM to give notice of proposed leasing and that “[s]uch notice shall be posted in the appropriate local office of the leasing and land management agencies.” 30 U.S.C. § 226(f). Clearly, BLM cannot comply with this requirement to give the public access to such notices right now.
B. Market conditions indicate BLM should not proceed with leasing.
When leasing public lands and minerals, BLM is managing resources for the public and should be ensuring a fair return on this transaction. Market conditions indicate BLM should not proceed with leasing, and BLM should instead take into account the option value of postponing leasing. In Colorado, the State Land Board has indicated that it will not proceed with leasing until at least November.2 Further, many of the proposed lease parcels (including all those in the Royal Gorge Field Office) are classified as having low oil and gas potential. BLM should take into account the “option value” of deferring leasing, which would leave open more opportunities for management that addresses the full range of multiple uses and better fulfill the agency’s obligations under FLPMA and the MLA to obtain fair market value for leasing and only lease lands that are known or believe to contain oil and gas resources. If BLM moves forward with lease sales, BLM runs the risk
1 Ranking is based on the % of the population with access to +25 mbps wired broadband (see https://broadbandnow.com/Colorado).
2 See https://slb.colorado.gov/lease/oil-gas
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of precluding future management decisions for other resources and uses such as bird and other wildlife habitat, wilderness, recreation and renewable energy development. Instead of proceeding with this sale, BLM should formally acknowledge the reality of the market and the risks of proceeding with ongoing leasing.
FLPMA directs BLM to receive “fair market value” for the use of public lands. 43 U.S.C. § 1701(a)(9). BLM’s economic valuation handbook defines “fair market value” as “the most probable price . . . for which the specified property rights should sell after reasonable exposure in a competitive market under all conditions requisite to fair sale…” H-3070-2—Economic Evaluation of Oil and Gas Properties Handbook at I.B.3 The current market clearly prevents BLM from leasing in a “competitive market“ under conditions “requisite to fair sale.” Given the likely continued volatility in the oil market and likely continued inability for BLM to receive fair market value for leasing and development, BLM should not proceed with this lease sale.
The low potential lands proposed for inclusion in this lease sale reinforces the likelihood that parcels will not be leased and also call into question BLM’s compliance with the Mineral Leasing Act. The MLA directs BLM to hold periodic oil and gas lease sales for “lands…which are known or believed to contain oil or gas deposits…” 30 U.S.C. § 226(a). The Department of the Interior has, through its Interior Board of Land Appeals (IBLA), recognized this mandate. See Vessels Coal Gas, Inc., 175 IBLA 8, 25 (2008) (“It is well-settled under the MLA that competitive leasing is to be based upon reasonable assurance of an existing mineral deposit.”). See also Wilderness Workshop v. Bureau of Land Management, 342 F. Supp. 3d 1145, 1166-67 (D. Colo. 2018) (recognizing that development potential must inform the range of alternatives for decisions related to oil and gas leasing). Lease sales are intended to foster responsible oil and gas development, which lessees must carry out with “reasonable diligence.” 30 U.S.C. § 187; see also BLM Form 3100-11 § 4 (“Lessee must exercise reasonable diligence in developing and producing…leased resources.”).
Deferring leasing would also be fiscally responsible because leases in low potential areas generate minimal to no revenue but can carry significant cost in terms of resource use conflicts. Leases in low potential areas are most likely to be sold at or near the minimum bid of $2/acre, or non-competitively, and they are least likely to actually produce oil or gas and generate royalties.4
Besides being wasteful and contrary to the MLA’s purpose, the ongoing leasing of lands with little or no potential creates another related problem: it facilitates, and perhaps even encourages, below-market, speculative leasing by industry actors who do not actually intend to develop the public lands they lease. This problem creates more administrative waste, and also fails to uphold the MLA’s core purpose by leading to many parcels being available for noncompetitive lease sales – sales that do not enjoy the benefits of market forces, and which rarely result in productive
3 Available at https://www.blm.gov/sites/blm.gov/files/uploads/Media_Library_BLM_Policy_h3070-2.pdf.
4 Center for Western Priorities, “A Fair Share” (“Oil Companies Can Obtain an Acre of Public Land for Less than the Price of a Big Mac. The minimum bid required to obtain public lands at oil and gas auctions stands at $2.00 per acre, an amount that has not been increased in decades. In 2014, oil companies obtained nearly 100,000 acres in Western states for only $2.00 per acre. . . .Oil companies are sitting on nearly 22 million acres of American lands without producing oil and gas from them. It only costs $1.50 per year to keep public lands idle, which provides little incentive to generate oil and gas or avoid land speculation.”).
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development, depriving the public of bonus bids and royalties. The speculative nature of noncompetitive leasing – and the administrative waste it creates – is evident from a common outcome in noncompetitive leasing: termination for non-payment of rent. A review of noncompetitive leases shows that BLM frequently terminates these leases because the lessee stops paying rent.5
It is well within BLM’s authority to defer nominated parcels from lease sales. Neither the MLA, FLPMA, nor any other statutory mandate requires that BLM must offer public lands and minerals for oil and gas leasing that are nominated for such use, even if those lands are allocated as available to leasing in the governing land use plan. The 10th Circuit Court of Appeals confirmed this discretion in New Mexico ex el. Richardson when it stated, “[i]f the agency wishes to allow oil and gas leasing in the plan area it must undertake additional analysis…but it retains the option of ceasing such proceedings entirely.” New Mexico ex el. Richardson v. BLM, 565 F.3d 683, 698 (10th Cir. 2009).
BLM should not be proceeding with leasing that is unlikely to fulfill the purpose of the MLA and should not continue with the December 2020 or March 20201 lease sales or permitting unsold parcels to be available for noncompetitive leasing.
C. BLM must analyze the “option value” of offering parcels with low or non-existent development potential.
In addition to the concerns above, leasing lands with low potential for oil and gas development gives preference to oil and gas development at the expense of other uses while handcuffing BLM’s ability to make other management decisions down the road. This is because the presence of oil and gas leases can limit BLM’s willingness to manage for other resources in the future.
For example, in the Colorado River Valley RMP, BLM decided against managing lands for protection of wilderness characteristics in the Grand Hogback lands with wilderness characteristics unit based specifically on the presence of oil and gas leases, even though the leases were non-producing:
The Grand Hogback citizens’ wilderness proposal unit contains 11,360 acres of BLM lands. All of the proposed area meets the overall criteria for wilderness character…There are six active oil and gas leases within the unit, totaling approximately 2,240 acres. None of these leases shows any active drilling or has previously drilled wells. The ability to manage for wilderness character would be difficult. If the current acres in the area continue to be leased and experience any development, protecting the unit’s wilderness characteristics would be infeasible…
Proposed Colorado River Valley RMP (2015), p. 3-135. Similarly, in the Grand Junction Resource Management Plan, BLM expressly stated that undeveloped leases on low-potential lands had effectively prevented management to protect wilderness characteristics, stating:
5 This research is documented in the Center for American Progress’s recent report, Backroom Deals: The Hidden World of Noncompetitive Oil and Gas Leasing, along with other concerns regarding speculative leasing raised in these comments. Available at https://www.americanprogress.org/issues/green/reports/2019/05/23/470140/backroom-deals/.
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133,900 acres of lands with wilderness characteristics have been classified as having low, very low, or no potential…While there is not potential for fluid mineral development in most of the lands with wilderness characteristics units, the majority of the areas, totaling 101,100 acres (59 percent), are already leased for oil and gas development.
Proposed Grand Junction Proposed RMP (2015), pp. 4-289 – 4-290. The presence of leases can also limit BLM’s ability to manage for other important, non-wilderness values, like renewable energy projects. See, e.g., Proposed White River Resource Management Plan, p. 4-498 (“Areas closed to leasing…indirectly limit the potential for oil and gas developments to preclude other land use authorizations not related to oil and gas (e.g., renewable energy developments, transmission lines) in those areas.”).
If BLM moves forward with this lease sale, especially those with low potential, BLM runs a similar risk of precluding future management decisions for other resources and uses such as wilderness, recreation and renewable energy development. Furthermore, if the lease sale moves forward and the parcel is unitized and deemed to be “held by production” because other parcels in the unit are producing, BLM may be precluded from managing for other resources on that parcel or generating additional lease sale revenue from that parcel for much longer than the normal10-year lifetime of a standalone lease.
BLM has the ability and obligation to undertake an analysis of the benefits of delaying leasing, which can be both qualitative and quantitative, considering both economic and environmental needs. As discussed in a recent New York University School of Law Institute for Policy Integrity report (attached as Exhibit 1), “[w]hile private companies routinely account for option value, timing their purchasing and development decisions to be privately optimal, BLM fails to account for option value in its land use planning and lease sale processes.”6 See also Jayni Foley Hein, Harmonizing Preservation and Production (June 2015) (“Option value derives from the ability to delay decisions until later, when more information is available. . . . In the leasing context, the value associated with the option to delay can be large, especially when there is a high degree of uncertainty about resource price, extraction costs, and/or the social and environmental costs of drilling.”).7
It is well established that issuance of an oil and gas lease is an irreversible commitment of resources. As the U.S. Court of Appeals for the D.C. Circuit held in the context of considering the informational value of delaying leasing on the Outer Continental Shelf, “[t]here is therefore a tangible present economic benefit to delaying the decision to drill for fossil fuels to preserve the opportunity to see what new technologies develop and what new information comes to light.” Center for Sustainable Economy v. Jewell, 779 F.3d 588, 610 (D.C. Cir. 2015).
The Institute for Policy Integrity report also proposes recommendations for how BLM can modernize its planning and leasing process to account for option value, using existing legal authority. Recommendations include offering only high-potential lands, if any, in lease sales,
6 New York University School of Law; Institute for Policy Integrity, Look Before You Lease; Reducing Fossil Fuel Dominance on Public Lands by Accounting for Option Value at 4 (2020).
7 Available at https://policyintegrity.org/files/publications/DOI_LeasingReport.pdf.
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increasing minimum bids, and exploring other means of accounting for environmental and social considerations (such as valuing carbon sink attributes).
Thus, in evaluating this lease sale, BLM should evaluate “option value” – the economic benefits that could arise from delaying leasing and/or exploration and development based on improvements in technology, additional benefits that could come from managing these lands for other uses, and additional information on the impacts of climate change and ways to avoid or mitigate impacts on the environment. BLM must factor in option value to both the land use planning and lease sale phases in order to deliver a fair return to the American public. This is essential, in particular, for lands with low or non-existent development potential. BLM has the ability and obligation to undertake an analysis of the benefits of delaying leasing, which can be both qualitative and quantitative, considering both economic and environmental needs. As shown above, the economic context for this lease sale indicate that there is a substantial benefit to delaying any leasing.
II. BLM cannot offer parcels in sage-grouse habitat.
All of the parcels proposed for leasing in the Northwest District for the proposed March 2021 lease sale includes parcels are in greater sage-grouse habitat. This includes parcels: 0005, 0034, 0036, 0129, 0152, 0153, 0154, 0161, 0165, 0167, 0171, 0172, 0175, 0184, 0185, 0186, 0187, 5985, 5994, 6175, 6176, 6177, and 6179.
For the reasons explained below, BLM cannot proceed with future leasing in sage-grouse habitat until it develops a compliant, transparent approach to prioritizing any future leasing and development outside sage-grouse habitat.
As discussed in our June 5, 2020, letter to the BLM (attached as Exhibit 2), in light of the decision in Montana Wildlife Federation v. Bernhardt, BLM must halt future leasing until it has developed a legally compliant, enforceable approach to prioritizing leasing and development outside sage-grouse habitat as directed by the 2015 Sage-grouse Plans. Under the 2015 Record of Decision for the Rocky Mountain Region, BLM must:
prioritize oil and gas leasing and development outside of identified PHMAs and GHMAs. This is to further limit future surface disturbance and encourage new development in areas that would not conflict with GRSG. This objective is intended to guide development to lower conflict areas and as such protect important habitat and reduce the time and cost associated with oil and gas leasing development by avoiding sensitive areas, reducing the complexity of environmental review and analysis of potential impacts on sensitive species, and decreasing the need for compensatory mitigation.
ROD at 1-25.
The 2015 Colorado Sage-grouse Plan echoes this directive, including the following objective:
Priority will be given to leasing and development of fluid mineral resources, including geothermal, outside PHMA and GHMA. When analyzing leasing and authorizing development of fluid mineral resources, including geothermal, in PHMA and GHMA, and
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subject to applicable stipulations for the conservation of GRSG, priority will be given to development in non-habitat areas first and then in the least suitable habitat for GRSG.
2015 Colorado Sage-grouse Plan at 2-14.8
Although BLM issued amendments to the 2015 Greater Sage-grouse Plans in March 2019, these amendments were enjoined in a recent court ruling, which restored the 2015 plan requirements for states including Utah. W. Watersheds Project v. Schneider, __ F. Supp. 3d. __, 2019 WL 5225454 (D. Idaho Oct. 16, 2019) (“The BLM is enjoined from implementing the 2019 BLM Sage-Grouse Plan Amendments for Idaho, Wyoming, Colorado, Utah, Nevada/Northeastern California, and Oregon, until such time as the Court can adjudicate the claims on the merits. The 2015 Plans remain in effect during this time.”). Consequently, BLM must comply with all aspects of the 2015 Sage-grouse Plans.
In Montana Wildlife Federation v. Bernhardt, the court rejected BLM’s interpretation that prioritization imposes no substantive limit on leasing in sage-grouse habitat. The court found that “BLM’s reinterpretation of the prioritization requirement in the 2018 IM conflicts with both its own application of the prioritization requirement before issuance of the National Directives and FWS’s understanding of the requirement in rejecting the request to list the sage-grouse under the ESA.” Montana Wildlife Federation v. Bernhardt, p. 23. Notably, the court invalidated lease sales that either explicitly followed IM 2018-026 or “in effect” followed the same approach. Id. at 27.
In addition, the court found the new guidance violated FLPMA “because it misconstrues the 2015 Plans and renders the prioritization requirement into a mere procedural hurdle” instead of the meaningful provision that was clearly intended to accomplish two goals: limiting surface disturbance and encouraging development outside grouse habitat. Id, p. 24. In particular, the court found that the BLM’s failure to consider factors beyond workload capacity to process lease nominations and, in particular, not evaluating how to encourage development outside grouse habitat, rendered invalid both IM 2018-026 and the lease sales that followed this approach. Obviously, both the rescission of IM 2018-026 and the court’s reasoning (invalidating leasing that both explicitly relied on the changed guidance, and which did not expressly rely on the 2018 IM but followed BLM’s changed approach to prioritization) apply to leasing beyond the three lease sales that were specifically invalidated. We note that in its Preliminary Environmental Assessment for the September 2020 sale, Utah BLM deferred parcels in grouse habitat, stating:
The Preliminary Environmental Assessment (EA) states:
Due to the recent decision in Montana Wildlife Federation v. Bernhardt, 2020 WL 2615631 (D. Mont. May 22, 2020), the BLM Utah State Office, in an abundance of caution, has postponed the consideration of offering six parcels (013, 014, 015, 016, 017 and 028) in the
8 We note that the 2019 ROD and Approved Resource Management Plan Amendments also did not change this requirement. See Northwest Colorado Proposed RMP Amendment and Final EIS at ES-6 (including “Prioritization of fluid mineral leases outside of PHMA and GHMA” in a list of “Issues and Resources Not Carried Forward for Additional Analysis”); Northwest Colorado Greater Sage-Grouse 2019 ROD and ARMPA at 1-4 (“This RMPA retains the majority of the allocations, objectives, and management decisions in the above mentioned plans, including the changes made in 2015.”).
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September 2020 Oil and Gas Lease Sale because these parcels include Greater Sage-grouse habitat. This postponement will allow BLM Utah the opportunity to further assess prioritization considerations of leasing in Greater Sage-grouse habitat. BLM may consider these six parcels in future competitive oil and gas lease sales based on the evaluation of factors for prioritization.
Preliminary EA, p. 1.9
In the Preliminary EA for the December 2020 sale, BLM included an analysis of “leasing considerations” for parcels in sage-grouse habitat but did not provide an actual justification for leasing that meets the requirements of the court decision to prioritize leasing outside sage-grouse habitat by both limiting surface disturbance and encouraging development outside grouse habitat. In order to meaningfully prioritize leasing outside grouse habitat, we recommend that BLM set out a process for prioritizing lease sales outside sage-grouse habitat that would comply with the court’s order through an evaluation that includes the following:
1. BLM will look for opportunities to modify parcel boundaries to remove PHMA and GHMA before including them in lease sales.
2. BLM will take into account the availability of other parcels for lease in all field offices.
3. If parcels have PHMA and low or moderate potential for oil and gas, they should not be included in a lease sale.
4. If parcels have PHMA and high potential for oil and gas, are not in proximity to existing disturbance and/or require additional infrastructure to be developed, there should be a strong presumption against including them in a lease sale, especially if there are other parcels that do not have PHMA and do not have other higher priority resource conflicts.
5. If parcels in PHMA or GHMA have high potential for oil and gas and are in close proximity to existing disturbance and infrastructure and/or are already within an existing oil and gas unit that has been analyzed in an environmental impact statement, then they may be considered for leasing.
6. Parcels outside PHMA should be considered for leasing prior to parcels in PHMA.
7. Parcels outside GHMA should be considered for leasing prior to parcels in GHMA, again if there are other parcels that do not have sage-grouse habitat and do not have other higher priority resource conflicts.
8. For parcels in PHMA or GHMA that are included in lease sales, there should be an evaluation of other conditions of approval that will limit any new infrastructure and other stressors on sage-grouse.
BLM cannot offer parcels in sage-grouse habitat unless and until it addresses the court’s decision and develops an approach that will fulfill the requirement to prioritize any future leasing and development outside sage-grouse habitat.
9 Available at: https://eplanning.blm.gov/public_projects/2000028/200369968/20019216/250025420/2020-06-09-Sept2020-DOI-BLM-UT-000-2020-0004-EA.pdf
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III. BLM must take the “hard look” required by NEPA prior to issuing oil and gas leases.
NEPA is our “basic national charter for the protection of the environment” and achieves its purpose through “action forcing procedures. . . requir[ing] that agencies take a hard look at environmental consequences.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989) (citations omitted). This includes the consideration of best available information and data, as well as disclosure of any inconsistencies with federal policies and plans.
The plain language of NEPA requires a thorough analysis of environmental effects. NEPA requires federal agency recommendations on “major Federal actions significantly affecting the quality of the human environment” to be accompanied by a detailed statement that discusses, among other things, the “environmental impact of the proposed action,” “[a]ny adverse environmental effects which cannot be avoided should the proposal be implemented,” and “the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long term productivity.” 42 U.S.C. § 4332(2)(C). Since well before the issuance of any regulation, courts have confirmed that this language requires federal agencies to analyze the potential effects, including the cumulative impacts, of their actions. See, e.g., Hanly v. Kleindienst, 471 F.2d 823, 830-31, 836 (2d Cir. 1972); City of Rochester v. U.S. Postal Service, 541 F.2d 967, 972 (2d Cir. 1976) (citing Scientists’ Inst. for Pub. Info. v. Atomic Energy Comm’n, 481 F.2d 1079, 1086-87 (D.C. Cir. 1973)). Further, the Supreme Court has held that NEPA requires consideration of the “cumulative or synergistic environmental impact” of multiple proposals pending concurrently before an agency, and stated that such impacts “must be considered together. Kleppe v. Sierra Club, 427 U.S. 390, 410 (1976), citing NEPA, 42 U.S.C. § 102(2)(C).
The new NEPA regulations recently finalized by the Council on Environmental Quality (CEQ) do not relieve BLM of complying with NEPA’s ultimate requirements to evaluate potential environmental consequences and consider alternatives. Further, BLM is still subject to regulations issued by the Department of the Interior (DOI). To ensure that the environmental consequences of an action are properly considered Congress directed “to the fullest extent possible” that “all agencies of the Federal Government shall . . . “develop methods and procedures . . . which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking.” 42 U.S.C. § 4332(B). Consistent with the statute’s mandate, the DOI adopted implementing regulations that apply to the BLM. See, 43 C.F.R. § 46.10 et seq. The DOI regulations incorporate by reference the implementing NEPA regulations originally drafted by the Council on Environmental Quality in 1978.10 43 C.F.R. § 46.20 (“This part supplements, and is to be used in conjunction with, the CEQ regulations except where it is inconsistent with other statutory requirements.”). Unless and until the DOI revises its own regulations, the BLM is still bound by the 1978 version of the CEQ regulations that are incorporated into DOI’s regulations.
Federal agencies must comply with NEPA before there are “any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.” 42 U.S.C. § 4332(C)(v). Federal courts have held that site-specific analysis is
10 Id. § 46.20 (This part supplements, and is to be used in conjunction with, the CEQ regulations except where it is inconsistent with other statutory requirements.”). The CEQ Regulations were finalized at 43 Fed. Reg. 56003 (Nov. 29, 1978).
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required prior to issuing oil and gas leases where there is surface that is not protected by no-surface occupancy stipulations (NSO) and where there is reasonable foreseeability of environmental impacts. See e.g., New Mexico ex rel. Richardson v. BLM, 565 F.3d at 718; Pennaco Energy, Inc. v. United States DOI, 377 F.3d 1147, 1160 (10th Cir. 2004). This is because oil and gas leases confer “the right to use so much of the leased lands as is necessary to explore for, drill for, mine, extract, remove and dispose of all the leased resource in a leasehold” and therefore would constitute an “irreversible and irretrievable commitment of resources.” New Mexico ex rel. Richardson, 565 F.3d at 718; see also Sierra Club v. Hodel, 848 F.2d 1068, 1093 (10th Cir. 1988) (agencies are to perform hard look NEPA analysis “before committing themselves irretrievably to a given course of action so that the action can be shaped to account for environmental values”).
In order to take the required “hard look” at potential impacts, BLM must prepare an Environmental Assessment (EA) for this lease sale. BLM cannot rely on a Determination of NEPA Adequacy (DNA) for this lease sale. DNAs, unlike Environmental Assessments and Environmental Impact Statements, are not NEPA documents. They do not analyze impacts, but rather determine the adequacy of existing NEPA documents. See e.g., S. Utah Wilderness Alliance v. Norton, 457 F. Supp. 2d 1253, 1261-62 (D. Utah 2006). The use of DNAs is governed by provisions in DOI’s Departmental Manual and BLM’s NEPA Handbook. Under the Departmental Manual, a DNA can only be used when (1) the proposed action is adequately covered by existing NEPA analysis and (2) there are no new circumstances, information, or unanticipated or unanalyzed environmental impacts that warrant new or supplemental analysis. Departmental Manual Part 516 Section 11.6. A DNA “does not itself provide NEPA analysis.” Id. This proposed lease sale does not meet these criteria because existing NEPA analyses do not adequately analyze potential impacts to resources such as climate change, as detailed below. Additional, site-specific NEPA analysis is unquestionably required.
The Tenth Circuit has held that BLM cannot rely on a DNA in situations in which the agency has not considered alternatives to energy development. In Pennaco Energy, Inc., the Tenth Circuit upheld the IBLA decision that BLM failed to take a “hard look” at the environmental consequences of coal-bed methane (CBM) development in Wyoming’s Powder River Basin. 377 F.3d 1479 (10th Cir. 2004). Instead of preparing an environmental document for a competitive sale, BLM prepared a DNA. The DNA relied on two environmental documents. The first analyzed the impact of non-CBM development methods in the area. The second analyzed the impact of CBM-development on a resource area after the leases had already been issued. As a post-project analysis, the second document did not analyze alternatives to CBM development in the Powder River Basin. The Tenth Circuit upheld the IBLA’s decision that BLM did not consider any alternatives to CBM development when it relied on the second environmental document because that document did not analyze alternatives to CBM development. Thus, BLM violated NEPA because it did not take a “hard look” at the environmental impacts of CBM development in the Powder River Basin before issuing a lease and making an irretrievable commitment of resources. As the Tenth Circuit stated: “Agencies are required to satisfy the NEPA ‘before committing themselves irretrievably to a given course of action, so that the action can be shaped to account for environmental values.’” Pennaco, 377 F.3d at 1159, citing Sierra Club v. Hodel, 848 F.2d at 1093.
The same reasoning applies to this lease sale. The underlying RMPs did not analyze any alternatives that would close the majority of the areas proposed for lease in this lease sale to oil and gas leasing.
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See, e.g., White River Proposed Oil and Gas RMPA, Maps 2-1—2-5; Kremmling Proposed RMP, Map 2-13. Because the governing RMPs did not evaluate alternatives to oil and gas leasing for the lands at issue, BLM cannot rely on a DNA to issue the proposed leases. BLM must prepare a NEPA document in order to take the required “hard look” at the proposed action. We further note that BLM is required to prepare an EA for leasing in sage-grouse habitat pursuant to Western Watersheds Project v. Zinke, but the reasoning of this case applies equally to all leasing and to this lease sale.
The EA for this lease sale must specifically analyze the following issues, resources and impacts:
A. Big game habitat
Most of the proposed lease sale parcels in the Northwest District overlap with areas that contain migration corridors, high priority big game winter habitats and/or production areas for elk and pronghorn, including parcels 0005, 0036, 0152, 0153, 0154, 0171, 0172, 0175, 5985, 5994 and 6179 while many of these parcels would be covered by additional protections associated with greater sage-grouse habitat, the acreage in these parcels that overlaps with sage-grouse habitat should not be included in the lease sale, as discussed in detail above. In addition, parcels 0194, 0197, 0200, 0201, 0203, 0204, 0205, 0206, 6171, 6172, 6182, 6187, 6188, 6189, 6190 and 6192 in the Royal Gorge Field Office are bighorn sheep lambing areas and winter range; and parcel 0204 is a bighorn sheep winter and summer concentration area.
Colorado Parks and Wildlife (CPW) has repeatedly recommended that BLM implement specific stipulations for lease parcels within the State Action Plan priority areas to protect big game habitat and migration corridors, including a stipulation that limits the density of surface facilities to no greater than one well pad per square mile. BLM must either incorporate this recommendation into the parcels offered in the March 2021 lease sale or defer the parcels. While the potential application of stipulations for protection of greater sage-grouse can provide important benefits for big game habitat, the application of these stipulations will be affected by other administration priorities. The 2019 amendments to the Colorado Sage-grouse Plan included changes that weakened application of the stipulations overall, and as discussed in detail below, BLM’s application of the 2015 plans requires further clarification. Consequently, existence of other stipulations is not a sufficient substitute for specific management to protect big game habitat.
BLM has the authority to adopt new measures at the leasing stage that could preclude future development, if needed to protect other resource values, and has done so in other instances. BLM can add protective measures to leases in a number of ways. For example, in Yates Petroleum Corporation, 176 IBLA 144 (2008), the IBLA affirmed BLM’s authority to revise conditions of approval (COAs) for applications for permit to drill (APDs) to increase the stipulated seasonal buffers around sage-grouse leks from 2 to 3 miles, based on updated scientific information demonstrating previously conditioned smaller buffers as inadequate (including looking at “non-federal” studies from the Western Association of Fish and Wildlife Agencies and Partners in Flight). The IBLA based its conclusions on Section 6 of the standard oil and gas lease terms, which provides that leases are subject to “reasonable measures” as needed to “minimize adverse impacts” to other resource values not otherwise addressed at the time of leasing. This reasoning is not limited in any way to adding measures at the permitting stage. Therefore, it follows that if BLM has the
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authority to adopt new, protective measures at the permitting stage, then it clearly does at the leasing stage, provided those measures are adequately evaluated in the relevant NEPA document.
Not only has the IBLA confirmed that BLM has the authority to impose more protective measures in COAs, but also the IBLA has required BLM to consider such measures when a need exists for the agency to do so. In William P. Maycock, et al., 177 IBLA 1 (March 16, 2009), the IBLA found that when the agency “acknowledges the validity of the more recent research that demonstrates that [previous] mitigation measures are not as effective as originally anticipated”, BLM is obligated to consider that a 2-mile seasonal buffer would not reduce the impacts of oil and gas drilling to insignificance. BLM was required to reassess the potential mitigation measures included in the COAs prior to approving APDs. As a result, BLM clearly has the legal authority to impose reasonable measures on existing and future leases and is required to consider the need for such measures.
BLM has used this authority to apply new lease stipulations at the time of leases sales, such as in the New Mexico July 2012 and July 2013 lease sales and the Wyoming February 2012 lease sale. The various situations leading BLM to apply new stipulations at the lease sale stage in those three sales show that the agency recognizes the flexibility afforded it to address emergent resource concerns, such as those being raised here by CPW. BLM has the authority and the obligation to take action to acknowledge the State’s concerns and recommendations in this and future lease sales by adding the requested lease stipulations into all affected leases and should do so for the March 2021 sale. We note that CPW previously recommended that if BLM cannot apply the density cap stipulation, BLM should defer parcels from sale until the existing RMPs are updated to incorporate a stipulation to address well pad density and should do that here.
We further note that Colorado Governor Jared Polis issued Executive Order D 2019 011 on August 21, 2019, emphasizing the importance to the State of protecting wildlife habitat and migration corridors and reiterating the priority that state agencies have placed on this issue to date. The EO directs state agencies to continue and expand efforts to conserve big game winter range and migration corridors. This is consistent with the direction in Secretarial Order 3362, Improving Habitat Quality in Western Big-Game Winter Range and Migration Corridors, which directs the bureaus within DOI to work with the states “to enhance and improve the quality of big-game winter range and migration corridor habitat on Federal lands.” It acknowledges “declining and degraded” landscapes, and requires consultation with states in order to improve priority habitats for big game species. It specifically directs the BLM to, among other things, avoid development in the most crucial migration corridors, minimize development that would fragment migration corridors, and to conserve and restore migration corridors across the west.
Further, in Colorado, BLM has formally agreed with the State of Colorado to amend its RMPs to address protection of big game habitat. Dan Gibbs, Executive Director of the Colorado Department of Natural Resources, summarized the commitment and the State’s reliance on it as follows:
We also appreciate the BLM’s commitment to undertake a future statewide planning effort to address related concerns with the density of development in sensitive big game habitat on BLM lands, which will bolster conditions for herds across the state. Public lands contribute
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immensely to the quality of life and economy in Colorado, and we’ll continue to closely work with BLM and other key stakeholders to improve land management.11
Colorado Parks and Wildlife has repeatedly recommended that BLM implement specific stipulations for lease parcels within the State Action Plan priority areas to protect big game habitat and migration corridors, including a stipulation that limits the density of surface facilities to no greater than one well pad per square mile. BLM has committed to address development in big game habitat through a statewide plan amendment, but has not even begun this process. At this point, BLM must either incorporate this recommendation into the parcels offered in the March 2021 lease sale or defer the parcels. While the potential application of stipulations for protection of greater sage-grouse can provide important benefits for big game habitat, the application of these stipulations will be affected by other administration priorities and is not a sufficient substitute for managing to protect big game habitat. Continuing to lease in big game habitat undercuts the effectiveness that a statewide RMP amendment could have for protecting big game habitat. BLM should defer parcels from sale until the existing RMPs are updated. BLM’s continued approach to indiscriminately offer oil and gas leases within these important habitats is inconsistent with state policies and fails to evidence meaningful coordination with state wildlife and natural resource agencies.
B. Lands with wilderness characteristics
The vast majority of parcels in the Northwest District overlap with lands that have been identified by BLM has having wilderness characteristics, including those detailed in Table 1 below. Lands with wilderness characteristics (LWC) are one of the resources of the public lands that must be inventoried and considered under FLPMA. 43 U.S.C. § 1711(a); see also Ore. Natural Desert Ass’n v. BLM, 625 F.3d 1092, 1122 (9th Cir. 2008) (holding that “wilderness characteristics are among the ‘resource and other values’ of the public lands to be inventoried under § 1711”). BLM must analyze impacts to these wilderness resources from the proposed oil and gas lease sale and evaluate alternatives to mitigate those impacts, including deferring all parcels that overlap with LWC.
Table 1. March 2021 lease sale parcels overlapping with LWC in the Little Snake Field Office
Parcel ID
LWC Unit
6175
CON-010-005 Racetrack Flat
167
CON-010-005 Racetrack Flat CON-010-016 Vermillion Bluffs
165
CON-010-006 Eagle Rock Draw CON-010-017 Beaver Slide Draw
6167
CON-010-017 Beaver Slide Draw
172
CON-010-019 Coffeepot Spring
11 See https://www.blm.gov/press-release/blm-issues-decision-uncompahgre-field-office-resource-management-plan
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171
CON-010-019 Coffeepot Spring
6179
CON-010-019 Coffeepot Spring
175
CON-010-019 Coffeepot Spring
153
CON-010-019 Coffeepot Spring CON-010-024 Yellow Cat Wash
152
CON-010-019 Coffeepot Spring CON-010-020 Dougout Draw
154
CON-010-019 Coffeepot Spring CON-010-020 Dougout Draw CON-010-024 Yellow Cat Wash
161
CON-010-024 Yellow Cat Wash
184
CON-010-024 Yellow Cat Wash
186
CON-010-024 Yellow Cat Wash CON-010-025 Sheepherder Springs Draw
185
CON-010-024 Yellow Cat Wash CON-010-025 Sheepherder Springs Draw
187
CON-010-018 North Fork Sand Wash CON-010-025 Sheepherder Springs Draw
BLM has not analyzed potential impacts from oil and gas leasing to the overlapping inventoried LWC in the Little Snake Field Office in an existing NEPA document. The Little Snake RMP Record of Decision was issued in October 2011, whereas these LWC inventories were completed in 2013. In developing the Little Snake RMP, BLM evaluated 9 areas for wilderness character and found that 5 of them met the criteria for wilderness characteristics, in addition to Vermillion Basin. Little Snake Proposed RMP, 3.1.12.2 and Table 3-25. The Proposed RMP only considered protective management for wilderness characteristics in Vermillion Basin, Dinosaur North, Cold Spring Mountain and Little Yampa Canyon/Juniper Mountain. Id. p. 2-159—162.
The LWC units overlapping with parcels proposed for inclusion in the March 2021 lease sale were inventoried by BLM after the Little Snake RMP was completed, and BLM found that they contain wilderness characteristics. BLM has not analyzed potential impacts to those LWC units from oil and gas leasing nor has BLM considered protective management for those LWC units in a land use planning process. Because the inventoried LWC under consideration in this lease sale were not analyzed in the existing NEPA document, BLM must prepare a NEPA document which analyzes potential impacts to the newly-inventoried LWC units from oil and gas leasing prior to offering these parcels for sale. BLM “cannot ignore an obviously-present wilderness resource.” Or. Natural
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Desert Ass’n v. Shuford, 2007 U.S. Dist. LEXIS 42614 at *30 (D. Or. June 8, 2007), citing Ctr. for Biological Diversity v. BLM, 422 F. Supp. 2d 1115, 1167-68 (N.D. Cal. 2006).
As discussed elsewhere in these comments, federal courts have held that site-specific analysis is required prior to issuing oil and gas leases without NSO stipulations because leases confer rights that constitute an “irreversible and irretrievable commitment of resources.” New Mexico ex rel. Richardson v. BLM, 565 F.3d at 718. NEPA further provides for BLM to evaluate not only the effects of proposed actions but also ways to avoid such impacts, including through mitigation and in alternatives. See, e.g., 40 C.F.R. §§ 1500.2(b), 1508.9, 1508.20.
BLM also cannot rely on a DNA due to the presence of this significant new information regarding wilderness resources. As described previously in these comments, BLM uses DNAs to document its conclusion that no substantial changes have occurred since the existing environmental document was prepared. Departmental Manual Part 516 Section 11.6. In this case, substantial changes have occurred due to BLM identifying new wilderness resources that were not identified at the time the existing environmental document was prepared, and thus a DNA is not acceptable.
Notably, the IBLA has held that BLM cannot rely on a DNA when new resource information is available that has not been considered in an existing NEPA document. In Center for Native Ecosystems, BLM had prepared a DNA instead of a NEPA document to issue oil and gas leases in an area associated with two prairie dog subcomplexes. The subcomplexes at issue could be used to provide habitat for reintroduction efforts for the endangered black-footed ferret. The DNA relied on several existing environmental documents that analyzed the impact of oil and gas leasing on the parcels as well as other studies on the subcomplexes at issue. IBLA reversed BLM’s decision to sell the parcels and remanded, holding that (1) information on the use of prairie dog subcomplexes for ferret reintroduction was new, and (2) BLM failed to take a “hard look” at the environmental impact of oil and gas leasing because the existing environmental documents never considered the impact of oil and gas leasing on subcomplexes used for ferret reintroduction. 170 IBLA 331 (2006).
Here, existing NEPA documents have not considered the impact of oil and gas leasing on the inventoried LWC because those LWC units were inventoried and identified after the Little Snake RMP was finalized. Therefore, BLM must conduct NEPA analysis to consider potential impacts to the LWC areas at stake and alternatives to protect those values. Due to the important values in these areas, we recommend BLM also take this opportunity to assess the potentially significant impacts to cultural resources and ethnocultural resources by consulting with the Ute, Shoshone and other Tribes associated with traditional land heritage. This may assist in identifying potentially affected resources and the extent of analysis needed for those resources, while also helping to define alternatives that can protect both LWC and cultural features and uses.
BLM should defer all leases in inventoried lands with wilderness characteristics in the Little Snake Field Office until the agency has the opportunity to conduct a meaningful analysis of potential consequences, alternatives to protect these areas and ultimately make updated management decisions for those areas through a public planning process. This approach is consistent with agency policy and authority, and is critical to preserving BLM’s ability to make management decisions for those newly-inventoried wilderness resources with transparency and public input.
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C. Cumulative impacts in North Park
Proposed parcel 5985 is in the North Park area. BLM must analyze the cumulative impacts of oil and gas leasing and development in North Park. There has been extensive leasing activity in the North Park area in recent years, and the impact of parcels leased in September 2019, plus those still available that did not sell in the March 2020 sale, deferred from the June 2020 and September 2020 sales, and proposed for the December 2020 and March 20201 lease sales would encumber significant portions of the area, including the North Park Master Leasing Plan (MLP).
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This map depicts past and proposed leasing, along with some of the affected resources:
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This level of leasing and eventual development could have drastic impacts on valuable resources in North Park, including greater sage-grouse, big game, rare plants (such as the North Park phacelia), water resources and the Arapaho National Wildlife Refuge. Given the inherently wide-range of movement involved with big game migration, the proximity and effects to wildlife corridors in and around Rocky Mountain National Park should also be analyzed as part of evaluating the effects of the extensive development proposed for the area. As shown in the map below, the corridors and migration pathways in the North Park area connect with big game habitat and movement around the Refuge and Rocky Mountain National Park.
in
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Further, the North Park MLP was established in the Kremmling RMP specifically to reduce conflicts between these resources and oil and gas development, yet BLM is not implementing the MLP in a way that would address conflicts and, instead, these conflicts have only been exacerbated since the RMP was approved.
According to the Kremmling RMP, BLM should be managing the North Park MLP to meet the following objective:
North Park Master Leasing Plan Vision: Facilitate the exploration and development of oil and gas resources in the North Park MLP Planning area, while resolving possible conflicts with future leasing and development, and ensuring protection of the area’s resources and resource uses, including, but not limited to: air quality; soils; water; riparian; fish and wildlife; Special Status Species; recreation; and ACECs.
Kremmling Approved RMP, p. 58.
Given the high resource values of North Park, the cumulative impacts of leasing and development in the area, and the low likelihood that BLM is able to meet its stated objective for the North Park MLP in the Kremmling RMP given the extensive leasing and development here, BLM should not proceed with further leasing in North Park. We have also proposed that BLM could develop a more detailed implementation plan to address the impacts of leasing in North Park to this area, the Arapaho National Wildlife Refuge and Rocky Mountain National Park, while deferring leasing until completion of such a plan.
D. Impacts to groundwater from well construction practices and hydraulic fracturing
BLM must take a hard look at impacts to groundwater, including regional groundwater resources, account for gaps in existing state regulation, and not try to defer analysis to the APD stage. See, WildEarth Guardians v. U.S. Bureau of Land Mgmt., — F. Supp. 3d —, 2020 WL 2104760, at *3–6 (D. Mont. May 1, 2020).
Groundwater is a critical resource that supplies many communities, especially rural ones, with drinking water. Oil and gas development—and hydraulic fracturing in particular—can contaminate groundwater. See, e.g., Gayathri Vaidyanathan, Fracking Can Contaminate Drinking Water, at 8, Sci. Am. (Apr. 4, 2016); Dominic C. DiGiulio & Robert A. Jackson, Impact to Underground Sources of Drinking Water and Domestic Wells from Production Well Stimulation and Completion Practices in the Pavillion, Wyoming Field, 50 Am. Chem. Society, Envtl. Sci. & Tech. 4524, 4532 (Mar. 29, 2016); EPA, Hydraulic Fracturing for Oil and Gas: Impacts from the Hydraulic Fracturing Water Cycle on Drinking Water Resources in the United States (2016).
Two fundamental safeguards are necessary to minimize these known risks: (1) the wellbore must be cased and cemented across all targeted formations and all usable water zones, and (2) there must be sufficient vertical separation between usable water and formations to be fractured. BLM should acknowledge the importance of all usable aquifers, identifying the depth and lateral extent usable aquifers in the areas where leases are proposed, and evaluate how the lease sale could impact them.
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Existing regulations are imperfect and do not account for all groundwater. For example, the Colorado Oil and Gas Conservation Commission (COGCC)’s Rule 317A required that in much of northeastern Colorado surface casing must extend only to a depth that protects the Fox Hills aquifer. See COGCC Rule 317A (2019).12 Rule 317A covered nearly 5,000 square miles, including some of the most heavily drilled areas in the state, and did not provide for staged cementing of groundwater below the Fox Hills aquifer. Id. A 2017 COGCC report, however, determined that the Fox Hills aquifer is not the deepest source of fresh water in that area. A deeper aquifer, called the Upper Pierre aquifer, supplies fresh water from a formation that underlies much of the Rule 317A area. Richard Allison, COGCC, Water Quality and the Presence and Origin of Methane in the Upper Pierre Aquifer in Northeastern Weld County, Morgan County and Logan County, Colorado (Oct. 2017). This example demonstrates why BLM must provide a thorough and detailed discussion of all usable groundwater aquifers in the affected region: state regulations are not foolproof guarantors of groundwater protection.
Nor do federal regulations eliminate BLM’s duty to assess groundwater impacts. In particular, Onshore Order No. 2’s requirement to “protect and/or isolate all usable water zones” is inconsistently applied and often disregarded in practice. BLM itself has admitted that there is “continued confusion over which standard of water needs to be isolated and/or protected” under Onshore Order No. 2. BLM, Regulatory Impact Analysis for the Final Rule to Rescind the 2015 Hydraulic Fracturing Rule at 44–45 (Dec. 2017). Moreover, industry has admitted that despite Onshore Order No. 2, it often does not protect usable water in practice. Western Energy Alliance and the Independent Petroleum Association of America (collectively, “WEA”) have told BLM that the “existing practice for locating and protecting usable water” does not measure the numerical quality of water underlying drilling locations, and therefore does not take into account whether water containing less than 10,000 ppm TDS would be protected during drilling. Sept. 25, 2017 WEA comments Re: RIN 1004-AE52. Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands; Rescission of a 2015 Rule (82 Fed. Reg. 34,464) at 59.
BLM may not assume that groundwater will be protected by current practices when presented with information showing these practices do not always protect groundwater. See WildEarth Guardians, 2020 WL 2104760, at *6 (holding that “BLM failed to take a hard look at groundwater impacts due to . . . surface casing depth not extending past drinking water.”).
Further, the U.S. district court for the District of Montana recently rejected delaying analysis to the APD stage, emphasizing that “NEPA requires at least some site specific analysis at the leasing stage, when this stage represents an irretrievable commitment of resources.” WildEarth Guardians, 2020 WL 2104760, at *5 (internal quotation marks omitted) (quoting N. Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d 969, 974–75 (9th Cir. 2006)). The court in WildEarth explained that BLM can and should undertake a reasonably specific analysis of groundwater impacts at the leasing stage, and held that deferring this analysis to the APD stage is “improper[].” Id. at *6. BLM should conduct an environmental analysis that fully assesses groundwater impacts now, before irretrievably committing publicly-owned resources.
12 This rule may be amended by the COGCC’s ongoing rulemaking process under Senate Bill 19-181.
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In addition, BLM must consider alternatives that would protect usable groundwater. See WildEarth Guardians, 2020 WL 2104760, at *8. Specifically, BLM should consider not leasing parcels within areas where there is less than 2,000 feet of vertical separation between the oil and gas formations likely to be targeted and any groundwater aquifer with 10,000 ppm TDS or less. BLM should also analyze an alternative whereby parcels would not be leased in areas overlying usable groundwater, and an alternative that includes other measures to ensure that all usable groundwater zones are protected. This might involve pre-leasing groundwater testing and adding a lease stipulation or lease notice requiring specified casing and cementing depths. Alternatively or additionally, BLM should consider requiring a lease stipulation or lease notice requiring the lessee to perform groundwater testing prior to drilling to identify all usable water, and consultation with the U.S. Geological Survey and other agencies to identify those waters with up to 10,000 ppm TDS. The data on aquifer depth and water quality that is acquired should be made available to the public.
E. Potential climate impacts
It is well established that federal agencies must analyze climate change when conducting NEPA, including in this lease sale analysis. The NEPA requirement to consider climate change has been repeatedly upheld by the courts. In Center for Biological Diversity v. National Highway Traffic Safety Administration, the U.S. Court of Appeals for the Ninth Circuit assessed an agency’s NEPA analysis for a rule requiring automobile manufacturers to increase the fuel efficiency of their vehicles, thereby lowering average tailpipe emissions per mile driven. The Court stated that “[t]he impact of greenhouse gas emissions on climate change is precisely the kind of cumulative impacts analysis that NEPA requires agencies to conduct.” Ctr. for Biological Diversity, 538 F.3d 1172, 1217, 1223-25 (9th Cir. 2008). Likewise, in Mid States Coalition for Progress v. Surface Transportation Board, the Eighth Circuit held that NEPA requires an agency to disclose and analyze the impacts of future combustion of mined coal when deciding whether to approve a railroad line providing access to coal mining areas. 345 F.3d 520, 549-50 (8th Cir. 2003).
1. BLM must analyze climate impacts at the leasing stage.
Courts have repeatedly invalidated oil and gas leasing decisions based on BLM’s failure to adequately analyze potential climate impacts, including downstream impacts associated with leasing decisions. Most recently, the United States District Court for the District of Columbia ruled that BLM violated NEPA when evaluating a lease sale in Wyoming because the agency: (1) failed to quantify and forecast drilling-related GHG emissions; (2) failed to adequately consider GHG emissions from the downstream use of oil and gas produced on the leased parcels; and (3) failed to compare those GHG emissions to state, regional, and national GHG emissions forecasts, and other foreseeable regional and national BLM projects. See WildEarth Guardians v. Zinke, Case No. 1:16-cv-01724-RC (Doc. 99) (D.D.C. March 19, 2019).
The court also reiterated that leasing was an irrevocable commitment to oil and gas drilling that would allow at least some GHG emissions, thus requiring BLM to “fully analyze the reasonably foreseeable impacts of those emissions at the leasing stage.” Id. at *27. Federal courts have repeatedly rejected agency claims that analysis at the lease sale stage would be speculative. “Because speculation is implicit in NEPA, we must reject any attempt by agencies to shirk their responsibilities under NEPA labeling any and all discussion of future environmental effects as
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crystal ball inquiry.” Northern Plains Res. Council, Inc. v. Surface Transportation Board, 668 F.3d 1067, 1078–79 (9th Cir. 2011) (quotations and alternations omitted) (rejecting agency’s argument that coalbed methane drilling was “too speculative” to analyze). A U.S. District Court in New Mexico similarly found that BLM is required to analyze indirect and cumulative impacts associated with leasing decisions. In San Juan Citizens Alliance v. U.S. Bureau of Land Management, the court set aside oil and gas leases issued on federal lands in New Mexico due to BLM’s failure to analyze indirect impacts: “Accordingly, it is erroneous to fail to consider, at the earliest stage feasible, ‘the environmental consequences of the downstream combustion of the coal, oil, and gas resources potentially open to development’ under the proposed agency action.” San Juan Citizens Alliance v. U.S. Bureau of Land Management, No. 16-CV-376-MCA-JHR, 2018 WL 2994406, at *24 (D.N.M. June 14, 2018) (internal citations omitted). The court explained further that “[t]his error also requires that BLM reanalyze the potential impact of such greenhouse gases on climate change in light of the recalculated amount of emissions in order to comply with NEPA.” Ibid.
Additionally, BLM cannot wave off cumulative impacts of greenhouse gas emissions as insignificant in a global context. The U.S. District Court in New Mexico ruled that this approach violates NEPA: “Accordingly, [40 C.F.R.] Section 1508.7 acknowledges that the impact of the action alone may be individually insignificant, but also that the impact may be significant only in combination with other actions. It is the broader, significant “cumulative impact” which must be considered by an agency, but which was not considered in this case.” San Juan Citizens Alliance, 2018 WL 2994406, at *32.13
Federal courts have echoed these requirements in the coal leasing context – at both the leasing and RMP stages. See, e.g., W. Org. of Res. Councils v. BLM, 2018 U.S. Dist. LEXIS 49635, 29, 40, 53–54 (D. Mont. Mar. 26, 2018) (BLM failed to analyze downstream combustion impacts associated with lands made available for coal leasing in the RMP or to consider options that modified or foreclosed the amount of acreage available); High Country Conservation Advocates v. U.S. Forest Service, 52 F. Supp. 3d 1174, 1189–92, 1196–98 (D. Colo. 2014) (Forest Service failed to adequately analyze climate impacts of coal mine expansion, including subsequent combustion of the coal, or to utilize available tools such as the Social Cost of Carbon to quantify costs). This reasoning is equally applicable to oil and gas lease sales.
To comply with NEPA, BLM must analyze downstream impacts forecasted from this specific lease sale, provide a data-driven comparison of GHG emissions from the lease parcels to regional and national GHG emissions, and evaluate the lease sale in the context of the cumulative impacts of GHG emissions generated by past, present or reasonably foreseeable lease sales in the region and nation.
2. The underlying RMPs are inadequate to support leasing without supplemental NEPA.
BLM has never adequately considered the potential climate impacts of issuing the proposed leases. The governing RMPs for the field offices included in this lease sale did not include climate change
13 The EA at issue in San Juan Citizens Alliance specifically stated: “The incremental contribution to global GHGs from the proposed action cannot be translated into effects on climate change globally or in the area of this site-specific action. It is currently not feasible to predict with certainty the net impacts from the proposed action on global or regional climate.” DOI-BLM-NM-F010-2013-0451-EA, p. 44.
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analysis appropriate to this discrete leasing decision, which requires greenhouse gas quantification and cumulative impact analysis among other elements, but rather discussed climate change at a general level relevant to the high-level NEPA analysis undertaken for field office-wide RMPs.
For example, the Kremmling RMP included very little discussion or analysis of climate impacts, stating:
The lack of scientific tools designed to predict climate change resulting from localized
changes in GHG emissions limits the ability to quantify potential future impacts for each
alternative. . . . this analysis cannot link any particular emission of GHGs resulting from the implementation of the alternatives to any specific future change in climate.
Kremmling Proposed RMP § 4.2.1.2. The Kremmling RMP also stated: “As tools improve in the future for predicting climate changes resulting from resource management actions, the BLM may be able to re-evaluate decisions made as part of this planning process, and to adjust management accordingly.” Id., p. 4-40. BLM has better tools at its disposal now than when the agency was developing the RMP from 2007-2015, and so BLM should and must use those tools to conduct additional climate analysis and make oil and gas leasing decisions that are based on that analysis.
Federal courts have found these types of qualitative analyses violate NEPA. On October 17, 2018, Senior District Court Judge Babcock issued a Memorandum Opinion and Order in Wilderness Workshop v. Bureau of Land Management, which found that BLM failed to take a hard look at the reasonably foreseeable indirect impacts of oil and gas leasing and development authorized through the Colorado River Valley RMP. The court held that “BLM acted in an arbitrary and capricious manner and violated NEPA by not taking a hard look at the indirect effects resulting from the combustion of oil and gas in the planning area under the RMP” and directed BLM to “quantify and reanalyze the indirect effects that emissions resulting from combustion of oil and gas in the planning area may have on [greenhouse gas] emissions.” Wilderness Workshop v. Bureau of Land Management, 342 F.Supp.3d 1145 (D. Colo. 2018).
Similarly, a December 26, 2018 decision in Western Organization of Resource Council (WORC) v. BLM, 2018 WL 1475470 (D. Mont. March 26, 2018) directed BLM to prepare supplemental EISs to address deficiencies in the environmental analyses for the 2015 Miles City and Buffalo RMPs. Among other things, the court found the RMPs failed to consider alternatives that would decrease the amount of coal available for leasing, evaluate the consequences of downstream fossil fuel combustion, or justify the exclusive use of 100-year global warming potentials (GWP). As stated in WORC v. BLM, “Deferral of such analysis ‘based on a promise to perform a comparable analysis in connection with later site-specific projects’ risks defeating entirely the purpose of completing an EIS at the RMP stage.” Id. at *33.
The underlying RMPs also failed to quantify the scale of methane pollution from oil and gas emission sources, and underestimated by an order of magnitude the global warming potential of such emissions. Because BLM did not adequately analyze climate change impacts from oil and gas leasing in the governing RMPs for these field offices, BLM must conduct that analysis as part of lease sale NEPA prior to offering oil and gas leases for sale. After a court held that the BLM did not sufficiently analyze impacts from the combustion of oil and gas as part of preparing the Colorado
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River Valley RMP, the agency has now committed to amending the RMP. A recent lawsuit making similar claims with respect to the Grand Junction RMP has led to the deferral of all parcels in the Grand Junction Field Office from the March 2020 lease sale. See, March 2020 lease sale Preliminary EA at 5.
Because BLM did not adequately analyze climate change impacts from oil and gas leasing in the governing RMPs for all of the affected field offices, BLM should reevaluate its leasing allocation decisions prior to offering oil and gas leases for sale. The level of analysis required to rectify the failures of the underlying RMPs may require an EIS prior to leasing.
F. Cumulative impacts.
BLM must evaluate the cumulative impacts of BLM Colorado’s March 2021 lease sale in its entirety. BLM Colorado has recently been preparing multiple NEPA documents for each lease sale, none of which analyzes the lease sale as a whole. Without analyzing the sale as a whole, BLM fails to adequately analyze cumulative impacts of the lease sale.
To satisfy NEPA’s hard look requirement, the cumulative impacts assessment must do two things. First, BLM must catalogue the past, present, and reasonably foreseeable projects in the area that might impact the environment. Muckleshoot Indian Tribe v. U.S. Forest Service, 177 F.3d 800, 809–10 (9th Cir. 1999). Second, BLM must analyze these impacts in light of the proposed action. Id. If BLM determines that certain actions are not relevant to the cumulative impacts analysis, it must “demonstrat[e] the scientific basis for this assertion.” Sierra Club v. Bosworth, 199 F.Supp.2d 971, 983 (N.D. Ca. 2002).
A failure to include a cumulative impact analysis of additional leasing that is already planned in the region renders NEPA analysis insufficient. See, e.g., Kern v. U.S. Bureau of Land Management, 284 F.3d 1062, 1078 (9th Cir. 2002) (holding that an EA for a timber sale must analyze the reasonably foreseeable future timber sales within the area). This analysis must also include an analysis that takes into account the extent of past oil and gas leasing in the area, how this past leasing may have contributed to significant environmental impacts such as impacts to sage-grouse, big game habitats (including the proximity and effects to wildlife corridors in and around Rocky Mountain National Park) and endangered species (such as the North Park phacelia), and whether additional leasing may have an “additive and significant relationship to those effects.” Council on Environmental Quality, Guidance on the Consideration of Past Actions in Cumulative Effects Analysis at p. 1 (June 24, 2005); Lands Council v. Powell, 395 F.3d 1019, 1028 (9th Cir. 2005).
Furthermore, because all of the parcels in BLM Colorado’s March 2021 lease sale will ultimately be consolidated in a single Notice of Competitive Lease Sale, and sold together in a single online auction, these lease parcel reviews are “connected” actions. BLM must describe connected actions in a single environmental review. Klamath-Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 387 F.3d 999 (9th Cir. 2004). The purpose of this requirement “is to prevent an agency from dividing a project into multiple ‘actions,’ each of which individually has an insignificant environmental impact, but which collectively have a substantial impact.” Great Basin Mine Watch v. Hankins, 456 F.3d 955, 969 (9th Cir. 2006) (internal quotation marks omitted). Where the proposed actions are “similar,” the agency also should assess them in the same document when
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doing so provides “the best way to assess adequately the combined impacts of similar actions.” Klamath-Siskiyou Wildlands Ctr., 387 F.3d at 999.
G. BLM must analyze a reasonable range of alternatives.
BLM must evaluate a reasonable range of alternatives in the NEPA document prepared for this lease sale. NEPA generally requires the lead agency for a given project to conduct an alternatives analysis for “any proposal which involves unresolved conflicts concerning alternative uses of available resources.” 42 U.S.C. § 4332(2)(E). This requirement applies equally to EAs and EISs. Davis v. Mineta, 302 F.3d 1104, 1120 (10th Cir. 2002); Bob Marshall Alliance v. Hodel, 852 F.2d 1223, 1228-29 (9th Cir. 1988). Furthermore, as discussed previously in these comments, the range of alternatives analyzed in the existing RMPs are not appropriate with respect to the new Proposed Action given current environmental concerns, interests, and resource values.
The range of alternatives is the heart of a NEPA document because “[w]ithout substantive, comparative environmental impact information regarding other possible courses of action, the ability of [a NEPA analysis] to inform agency deliberation and facilitate public involvement would be greatly degraded.” New Mexico ex el. Richardson, 565 F.3d at 683, 708. That analysis must cover a reasonable range of alternatives, so that an agency can make an informed choice from the spectrum of reasonable options. By contrast, in evaluating lease sales, BLM frequently evaluates only two alternatives: a no action alternative, which would exclude all lease parcels from the sale; and a “lease everything” alternative, which would offer for lease all nominated parcels. An EA offering a choice between leasing every parcel nominated, and leasing nothing at all, does not present a reasonable range of alternatives.
For this lease sale, BLM must consider reasonable alternatives that fall between the two extremes. At a minimum, BLM should analyze the following alternatives:
– Limiting any leasing to lands with high oil and gas potential.
– An alternative to defer new leasing in North Park until BLM completes further planning for the area.
– An alternative that defers leasing in sage-grouse habitat consistent with BLM’s obligation under FLPMA and the provisions of the 2015 Northwest Colorado Greater Sage-grouse Approved Resource Management Plan to “prioritize” oil and gas leasing outside of those habitats (which has been reinstated by court order).
– At least one alternative that adopts the stipulations recommended by Colorado Parks and Wildlife and/or defers all parcels in priority big game areas.
– Alternatives that would minimize and/or mitigate greenhouse gas (GHG) emissions, such as deferring leases, phasing leasing, and requiring technology to mitigate emissions.
– Alternatives that would protect usable groundwater zones, including not leasing areas overlying usable groundwater and surface water.
– At least one alternative that defers parcels with wilderness characteristics and/or includes NSO stipulations to protect those values
Failing to analyze such middle-ground options would violate NEPA. See TWS v. Wisely, 524 F. Supp. 2d 1285, 1312 (D. Colo. 2007) (BLM violated NEPA by failing to consider “middle-ground compromise between the absolutism of the outright leasing and no action alternatives”);
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Muckleshoot Indian Tribe v. US Forest Serv., 177 F.3d 800, 813 (9th Cir. 1999) (NEPA analysis failed to consider reasonable range of alternatives where it “considered only a no action alternative along with two virtually identical alternatives”).
Failing to consider alternatives that would protect other public lands resources from oil and gas development would also violate FLPMA. Considering only one alternative in which BLM would offer all nominated oil and gas lease parcels for sale, regardless of other values present on these public lands that could be harmed by oil and gas development, would indicate a preference for oil and gas leasing and development over other multiple uses. Such an approach violates the agency’s multiple use and sustained yield mandate, as detailed later in these comments.
IV. BLM should impose requirements to regulate waste and limit flaring.
The release of natural gas through venting and flaring has both economic and climate-related impacts. The release of methane from oil and gas operations due to its venting, flaring, or leaking—also referred to as waste—is a significant issue relative to climate change because methane is a far more potent GHG than carbon dioxide. Methane is at least 86 times more potent than carbon dioxide.14 Between 2009 and 2015, 462 billion cubic feet (Bcf) of natural gas from federal leases was vented or flared – enough to serve 6.2 million households for a year.15 In 2008 “the economically recoverable volume represented about $23 million in lost Federal royalties and 16.5 million metric tons of carbon dioxide equivalent (CO2e) emissions.”16 BLM found that in 2013, 98 Bcf of natural gas was vented and flared from Federal and Indian leases. This volume had a sales value of $392 million and would have generated royalty revenues in excess of $49 million. Of the 98 Bcf of gas, it is estimated that 22 Bcf was vented and 76 Bcf was flared.17
Under the MLA the BLM is obligated to regulate waste. The MLA directs DOI to require “all reasonable precautions to prevent waste of oil or gas developed in the land,” 30 U.S.C. § 225, and mandates that “[e]ach lease shall contain provisions for the prevention of undue waste.” Id. § 187. The MLA also requires BLM to consider not just private oil and gas interests, but also the “interests of the United States” and the “public welfare” when leasing and regulating publicly owned oil and gas resources. Id. § 187. FLPMA’s mandates to prevent unnecessary or undue degradation and to manage for multiple use and sustained yield and in a manner that protects environmental, air, and atmospheric values, obligate BLM to regulate and limit natural gas waste and its significant contributions to climate change and associated degradation of public lands resources. 43 U.S.C. §§ 1701(a)(8), 1702(c), 1732(b).
The MLA’s use of “all” to modify the term “reasonable precautions” shows that Congress intended BLM to aggressively control waste. The agency may not forego reasonable and effective measures limiting venting, flaring, and leaks for the sake of administrative convenience or to enhance the bottom lines of operators. See Halliburton, Inc. v. Admin. Review Bd., 771 F.3d 254, 266 (5th Cir.
14 Gayathri Vaidyanathan, How Bad of a Greenhouse Gas is Methane?, SCIENTIFIC AMERICAN (Dec. 22, 2015), https://www.scientificamerican.com/article/how-bad-of-a-greenhouse-gas-is-methane/.
15 Waste Prevention, Production Subject to Royalties, and Resource Conservation, 81 Fed. Reg. 83,008 (Nov. 18, 2016).
16 U.S. Bureau of Land Management, Regulatory Impact Analysis for: Revisions to 43 CFR 3100 (Onshore Oil and Gas Leasing) and 43 CFR 3600 (Onshore Oil and Gas Operations) Additions of 43 CFR 3178 (Royalty-Free Use of Lease Production) and 43 CFR 3179 (Waste Prevention and Resource Conservation), at 2 (Nov. 10, 2016).
17 Id. at 3.
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2014) (ruling that statutory term “all relief necessary” authorized broad remedies against defendant because “we think Congress meant what it said. All means all” (internal quotation omitted)); City of Oakland v. Fed. Housing Fin. Agency, 716 F.3d 935, 940 (6th Cir. 2013) (“a straightforward reading of the statute leads to the unremarkable conclusion that when Congress said ‘all taxation,’ it meant all taxation” (emphasis in original)).
The obligation to “use all reasonable precautions to prevent waste” applies to lease sale decisions. In 2016 the BLM adopted strong new waste regulations. Waste Prevention, Production Subject to Royalties, and Resource Conservation, 81 Fed. Reg. 83,008 (Nov. 18, 2016). The rule would have reduced venting of natural gas by 35% and flaring of gas by 49% and required companies to limit the waste (leaking) of this methane due to infrastructure failures, with significant air quality and climate change benefits. The rule was projected to reduce volatile organic compound emissions by 250,000–267,000 tons per year (tpy) and methane emissions by 175,000–180,000 tpy (using the social cost of methane, estimated to be worth $189–247 million per year). Id. at 83,069.
Under the direction of this administration, however, the BLM abandoned (rescinded) the 2016 rule and adopted a new much weaker regulation in 2018. Waste Prevention, Production Subject to Royalties, and Resource Conservation; Rescission or Revision of Certain Requirements, 83 Fed. Reg. 49,184 (Sept. 28, 2018). In July, a court reinstated the 2016 Rule on Waste Prevention, Production Subject to Royalties, and Resource Conservation and found BLM’s current requirements, set out in a 2018 rule, were inconsistent with the agency’s obligations under the Mineral Leasing Act and the Administrative Procedure Act. California v. Bernhardt, __ F. Supp. 3d __, 2020 WL 4001480, **12-14 (N.D. Calif. July 15, 2020). Recently, a federal court in Wyoming struck down the 2016 rule (Wyoming v. Department of Interior, No. 2:16-cv-00285-SWS (D. Wyo. Oct. 8, 2020)), but BLM must still comply with its obligations under the MLA.
The BLM must exercise its authority to minimize waste of publicly owned natural gas from all leases issued in this sale and should do so by incorporating waste minimization stipulations as lease notices in the lease terms. Specifically, BLM should consider or incorporate lease notices or stipulation provisions to:
 Require the submission of a waste minimization plan along with every APD;
 Mandate operators meet monthly gas capture percentage targets as outlined in the 2016 rule;
 Establish restrictions on flaring;
 Prohibit venting during liquids unloading operations;
 Require operators to report volumes of gas vented, flared and leaked;
 Require the capture of emissions associated with well drilling, completion and testing operations;
 Establish waste minimization requirements for pneumatic controllers and diaphragm pumps;
 Establish a comprehensive leak detection and repair (LDAR) inspection and reporting protocol for all well production facilities similar to that of the 2016 final rule.
In addition, BLM should require green completion techniques for every well, require operators to install vapor recovery units at new facilities, implement emission controls for storage vessels and glycol dehydrators that would reduce emissions by 95%, ensure at least 70% of gas compression at compressor stations and well heads would be powered by electricity, and require all pneumatic
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controllers at gas gathering and boosting stations, well sites, and gas processing plants to meet the EPA new source performance standards (NSPS) requirements. The inclusion of these emission control requirements would result in real and significant emission reductions and constitute reasonable and feasible mitigation measures that must be fully considered and adopted.
The BLM has required waste prevention measures aside from the requirements of the 2016 Rule in several field offices, including North Dakota, Price, Utah, and Royal Gorge, Colorado. BLM should provide in this lease sale for similar proactive measures to analyze and incentivize methane capture. These measures should be imposed as stipulations attached to the leases and as mandatory conditions of approval attached to drilling permits approved for existing leases.
While implementing methane waste prevention technologies or practices may result in reduced profitability for a single low-producing well, the costs associated with that business decision are spread among all the company’s assets, and additional gas capture across a field can easily offset those marginal losses. BLM must consider these interests when evaluating waste and pollution in its lease sale decisions. Furthermore, BLM must evaluate the economics of drilling projects by accounting for the benefits of methane reductions to public health, the climate, and the environment, as well as the costs to these same resources from impacts caused by methane emissions that could be prevented.
In short, the BLM must meet its obligation to reduce waste and increase federal revenues by ensuring lease terms include waste minimization requirements, and it has numerous reasonable and feasible tools for doing so.
V. Prioritizing oil and gas leasing is inconsistent with FLPMA’s multiple-use mandate.
Under FLPMA, BLM is subject to a multiple-use and sustained yield mandate, which prohibits DOI and BLM from managing public lands primarily for energy development or in a manner that unduly or unnecessarily degrades other uses. See 43 U.S.C. § 1732(a). Instead, the multiple-use mandate directs DOI to achieve “a combination of balanced and diverse resource uses that takes into account the long-term needs of future generations.” 43 U.S.C. § 1702(c). Further, as co-equal, principal uses of public lands, outdoor recreation, fish and wildlife, grazing, and rights-of-way must receive the same consideration as energy development. 43 U.S.C. § 1702(l).
DOI appears to be pursuing an approach to oil and gas management that prioritizes this use above others in violation of the multiple use mandate established in FLPMA. For example, a March 28, 2017 Executive Order and the following March 29, 2017 Interior Secretarial Order No. 3349 seek to eliminate regulations and policies that ensure energy development is balanced with other multiple uses. None of the overarching legal mandates under which BLM operates – be it multiple-use or non-impairment – authorizes DOI to establish energy development as the dominant use of public lands. On our public lands, energy development is an allowable use that must be carefully balanced with other uses. Thus, any action that attempts to enshrine energy development as the dominant use of public lands is invalid on its face and inconsistent with the foundational statutes that govern the management of public lands.
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Federal courts have consistently rejected efforts to affirmatively elevate energy development over other uses of public lands. In the seminal case, New Mexico ex el. Richardson. v. BLM, the Tenth Circuit put to rest the notion that BLM can manage chiefly for energy development, declaring that “[i]t is past doubt that the principle of multiple use does not require BLM to prioritize development over other uses.” 565 F.3d at 710; see also S. Utah Wilderness Alliance v. Norton, 542 U.S. 52, 58 (2004) (defining “multiple use management” as “striking a balance among the many competing uses to which land can be put”). Other federal courts have agreed. See, e.g., Colo. Envtl. Coalition v. Salazar, 875 F. Supp. 2d 1233, 1249 (D. Colo. 2012) (rejecting oil and gas leasing plan that failed to adequately consider other uses of public lands). Thus, any action by BLM that seeks to prioritize oil and gas leasing and development as the dominant use of public lands would violate FLPMA. BLM must therefore consider a reasonable range of alternatives for this lease sale that considers and balances the multiple uses of our public lands, consistent with NEPA and FLPMA.
VI. IM 2018-034 is invalid.
BLM is currently implementing its oil and gas leasing program under Instruction Memorandum (IM) 2018-034, which directs BLM to expedite the oil and gas lease sale process and encourages the agency to minimize environmental review and public participation. Such an approach impedes informed decision-making, increases public controversy and prioritizes energy development above other resources and uses in violation of the multiple use mandate established in FLPMA.
In September 2018, the U.S. District Court for the District of Idaho issued a Memorandum Decision and Preliminary Injunction enjoining and restraining BLM from implementing certain provisions of IM 2018-034, for lease sales within the planning area of the greater sage-grouse conservation plans. The Preliminary Injunction required that BLM offer meaningful opportunities for the public to participate in lease sales affecting sage-grouse habitat, in accordance with the agency’s obligations under NEPA and FLPMA. The express requirements are that BLM must provide for a 30-day public comment period on the Environmental Assessment and/or Determination of NEPA Adequacy for lease sales, as well as provide a 30-day public protest period. Western Watersheds Project v. Zinke, No. 1:18-cv-00187-REB at 55-56 (D. Idaho Sept. 21, 2018). Recently, the court permanently vacated portions of IM 2018-034, reiterating: “Public involvement in oil and gas leasing is required under FLPMA and NEPA.” Western Watersheds Project v. Zinke, No. 1:18-cv-00187-REB at 32 (D. Idaho February 27, 2020).
Beyond the now-mandated specific public comment periods for lease parcels within the planning area of the greater sage-grouse plans, the court’s ruling is yet another broader indictment of BLM’s attempts to cut the public out of oil and gas leasing decisions affecting our public lands. Noting that BLM’s efforts were explicitly tied to efforts to “streamline” the leasing process by removing the allegedly burdensome requirements for public involvement, the court found that “the public involvement requirements of FLPMA and NEPA cannot be set aside in the name of expediting oil and gas lease sales. It is axiomatic that the benefits of public involvement and the protocol by which public involvement is obtained are not ‘unnecessary impediments and burdens.’” Western Watersheds Project v. Zinke, No. 1:18-cv-00187-REB at 40.
While BLM indicates it will be providing 30-day comment and protest periods on the NEPA documents for the March 2021 lease sale in accordance with the Idaho court’s ruling, BLM should
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provide these opportunities even if the agency defers all parcels in sage-grouse habitat, as required by the recent court ruling in Montana described above. Further, other elements of IM 2018-034 that are being applied here are likewise unlawful. For example, IM 2018-034 creates a one-sided burden on requests that BLM defer lease parcels: it requires consultation with BLM’s Washington, DC headquarters to defer parcels, but not to dismiss protests and proceed with a lease sale. IM 2018-034 also requires that BLM complete lease parcel reviews within a 6-month timeline, which severely restricts the agency’s ability to conduct thorough NEPA reviews, and solicit and respond to public input on lease parcels.
Prior to issuance of IM 2018-034, BLM was required to undertake an inter-disciplinary review, to visit proposed parcels, and to provide for public participation in the leasing process, all of which provided the opportunity for BLM to understand the values at stake and to understand and address public concerns. After an opportunity for public comment, BLM also provided the public with 30 days to evaluate, and if necessary file, a protest. BLM had 60 days prior to a lease sale to resolve protests. That process, which was set forth in IM 2010-117, did not impair our rights or impose significant new burdens on our ability to engage in the leasing of public lands and minerals. By contrast, IM 2018-034 imposes significant burdens on our participation in the leasing process, as described above. BLM’s abrupt issuance of new guidance did not provide a sufficient, reasoned explanation for the significant reversals in process and rights, which we and other stakeholders have relied upon since 2010. IM 2018-034 is therefore invalid and cannot be relied upon for this lease sale.
Thank you again for the opportunity to comment.
Nada Culver, Vice President, Public Lands
National Audubon Society
1580 Lincoln Street, Suite 1280
Denver, CO 80203
720-780-8727
Nada.Culver@audubon.org
Luke Schafer, West Slope Director
Conservation Colorado
546 Main Street, #404
Grand Junction, CO 81501
luke@conservationco.org
Daly Edmunds, Policy and Outreach Director
Audubon Rockies
215 West Oak Street, Suite 2C
Fort Collins, CO 80521
(970) 416-6931
Daly.Edmunds@audubon.org
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Tehri Parker, Executive Director Rocky Mountain Wild 1536 Wynkoop Street, Suite 900 Denver, CO 80202 (720) 446-8582 tehri@rockymountainwild.org
Barbara Vasquez
Cowdrey, CO
bv_99_munich@yahoo.com
Tracy Coppola, Colorado Program Manager
National Parks Conservation Association
Denver, CO
303-947-8013
tcoppola@npca.org
JoAnn Hackos, Conservation Board Member
Evergreen Audubon
conservation@evergreenaudubon.org
Evergreen, CO
Mary Harris, President
Delia Malone, Vice President
Roaring Fork Audubon
smnharris@gmail.com
Carbondale, CO
John Shenot, President
Fort Collins Audubon Society
johnshenot@gmail.com
Fort Collins, CO
Karl Brummert, Executive Director
Pauline Reetz, Conservation Chairman
Denver Audubon
karl@denveraudubon.org
Littleton, CO
Emil Yappert, President
Boulder County Audubon Society
emil@boulderaudubon.org
Boulder, CO
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Dr. Bruce Ackerman, President
Black Canyon Audubon Society
bruceackermanaud@aol.com
Delta, CO
Peg Rooney, President Arkansas Valley Audubon Society
drpeg12@gmail.com
Pueblo, CO
Anna Joy Lehmicke, President
Aiken Audubon Society
alehmicke@gmail.com
Colorado Springs, CO
Cary Atwood, President
Nic Korte, Conservation Chair
Grand Valley Audubon Society
Catwood814@gmail.com
Grand Junction, CO
Jean Zirnhelt, President
Weminuche Audubon Society
jeanzirnhelt@centurytel.net
Pagosa Springs, CO
Emily Hornback, Executive Director
Western Colorado Alliance
PO Box 1931
Grand Junction, CO 81502
emily@westerncoloradoalliance.org
Shelley Silbert, Executive Director
Great Old Broads for Wilderness
shelley@greatoldbroads.org
Anne Dal Vera, Broadband Leader
South San Juan Broadband, Great Old Broads for Wilderness
SSJBroads@gmail.com
Sherry Schenk, Broadband Leader
Grand Junction Area Broadband, Great Old Broads for Wilderness
gjbroadband2008@gmail.com
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Cristina Harmon, Co-Leader
Diane Miller Co-Leader
Northwest Colorado Broadband, Great Old Broads for Wilderness
Steamboat Springs, CO
Robyn Cascade, Leader
Northern San Juan Broadband, Great Old Broads for Wilderness
Ridgway, CO
northernsanjuanbroadband@gmail.com
Sarah Bransom, Leader
Middle Park Colorado Broadband, Great Old Broads for Wilderness
Granby, CO
Andrew Forkes-Gudmundson, Deputy Director
League of Oil and Gas Impacted Coloradans
P.O. Box 452
Erie, CO 80516
Andrew@coloradologic.org
Leslie Robinson
Grand Valley Citizens Alliance
garcodem@sopris.net
Scott Braden, Director
Colorado Wildlands Project
Grand Junction, CO
Exhibits
1. Institute for Policy Integrity, Look Before You Lease; Reducing Fossil Fuel Dominance on Public Lands by Accounting for Option Value
2. June 5, 2020, letter from Audubon, et al. to BLM

Reflection/Evaluation

Collective Broads comments plus 2 coalition letters submitted – one composed by Rocky Smith and another by Nada Culver National Audubon for a total of 3 letters.