National Wildlife Federation
2260 Baseline Road, Suite 100
Boulder, CO 80302
Colorado Wildlife Federation
1410 Grant Street, Suite C-313
Denver, Colorado 80203
Submitted by:
Joseph M. Feller, Senior Counsel
National Wildlife Federation
2260 Baseline Road, Suite 100
(303) 441-5158
FellerJ@nwf.org
PROTEST
by the National Wildlife Federation and the Colorado Wildlife Federation
of the inclusion of certain parcels
in the Notice of Competitive Lease Sale, Oil and Gas, dated June 9, 2008,
for the lease sale scheduled for August 14, 2008,
issued by the Colorado State Office of the United States Bureau of Land Management
The National Wildlife Federation and the Colorado Wildlife Federation hereby protest
the inclusion of the following thirty-one parcels in the Notice of Competitive Lease Sale, Oil and
Gas, dated June 9, 2008 (hereinafter Lease Sale Notice), for the lease sale scheduled for August
14, 2008, issued by the Colorado State Office of the United States Bureau of Land Management:
Serial # Serial # Serial #
COC73064
COC73065
COC73066
COC73067
COC73068
COC73069
COC73070
COC73071
COC73072
COC73073
COC73074
COC73075
COC73076
COC73077
COC73078
COC73079
COC73080
COC73081
COC73082
COC73083
COC73084
COC73085
COC73086
COC73087
COC73088
COC73089
COC73090
COC73091
COC73092
COC73093
COC73094
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Interest of the National Wildlife Federation and the Colorado Wildlife Federation
The National Wildlife Federation (NWF) is a national organization, with forty-eight state
affiliate organizations, dedicated to the protection and restoration of fish and wildlife and their
habitat for the benefit of this and future generations. NWF has over four million members,
including approximately twenty-two thousand members in Colorado. The Colorado Wildlife
Federation (CWF) is an affiliate of NWF and is Colorado’s oldest wildlife conservation
organization, with approximately 2,100 members.
The parcels that are the subject of this protest are on, and at the base of, the Roan Plateau.
These parcels contain some of the most important habitat in Colorado for wildlife and fish
species including, but not limited to, deer, elk, and Colorado River cutthroat trout. NWF and
CWF members use the federal land on and around these parcels for recreational and professional
purposes including, but not limited to, hunting, fishing, hiking, camping, wildlife viewing, and
scientific study. NWF and CWF have actively participated in the BLM’s planning process for
oil and gas development on the Roan Plateau for several years. NWF’s and CWF’s participation
have included, but not been limited to, participating in scoping meetings, submitting comments
on the Draft Environmental Impact Statement (EIS) for the Roan Plateau Resource Management
Plan Amendment (RPRMPA) in 2005, and filing a Protest of the Proposed RPRMPA in 2006.
If the proposed lease sale goes forward as announced, NWF’s and CWF’s members’ use
and enjoyment of lands on and around the Roan Plateau will be impaired by the extensive oil and
gas development that will occur on the parcels under protest. That impairment will include, but
not be limited to, the sights and sounds of industrial development, the impairment of air quality,
and, most important, the displacement of wildlife from winter and summer ranges and calving
grounds, the interruption of migration corridors, and the degradation of stream habitats for fish.
Of particular importance to NWF and CWF members are the federal public lands at the
base of the Roan Plateau that are critical winter range for a mule deer herd and an elk herd. The
deer and the elk depend on these lands for their survival. As adjacent private lands are under
intense energy development, the federal public lands proposed for lease form the remaining
winter range for these herds. By allowing intensive energy development in some of the last
remaining undeveloped winter range, the proposed lease sale would place these deer and elk
herds at risk.
Statement of Reasons for Protest
I. Incorporation by Reference.
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NWF hereby incorporates by reference in this Protest the following three documents, all
three of which are attached to this Protest:
(1) Attachment 1: The Protest filed by the National Wildlife Federation and the Colorado
Wildlife Federation, dated October 16, 2006, of the Proposed Roan Plateau Resource
Management Plan Amendment (RPRMPA) that was issued in September, 2006. Because the
proposed lease sale implements decisions made in the RPRMPA, all of the points raised in the
attached Protest of the Proposed RPRMPA are equally applicable to the proposed lease sale. We
therefore request that all of the points raised in the attached Protest of the RPRMPA be treated as
reasons for this Protest.
(2 ) Attachment 2: The letter, dated August 9, 2007, from the National Wildlife
Federation and the Colorado Wildlife Federation, commenting on the proposed Areas of Critical
Environmental Concern (ACECs) for the Roan Plateau Planning Area. Because the proposed
lease sale includes all of the areas that the attached August 9, 2007, letter urged the BLM to
designate as ACECs, the points raised in that letter are directly applicable to the proposed lease
sale. We therefore request that all of the points raised in the attached August 9, 2007, letter be
treated as reasons for this Protest.
(3) Attachment 3: The letter, dated December 20, 2007, from Sherman Harris, Director
of the Colorado Department of Natural Resources, to BLM Colorado State Director Sally
Wisely, regarding Comments on Proposed ACEC Provisions in the Roan Plateau Resource
Management Plan Amendment. This letter presents a specific proposal for oil and gas
development on the Roan Plateau that reflects, and would resolve, many of the issues and
concerns raised in this Protest. We therefore request that all of the points raised in the attached
December 20, 2007, letter be treated as reasons for this Protest.
II. The Proposed Lease Sale Contradicts Written Representations Made by the
Department of the Interior to the Governor of Colorado.
Less than five months ago, on March 13, 2008, Assistant Secretary for Land and Mineral
Management C. Stephen Allred transmitted a letter to Colorado Governor Bill Ritter concerning
proposed oil and gas development on the Roan Plateau. That letter contains at least two specific
and important representations that are contradicted by the proposed lease sale.
A. Contrary to the Written Representation to Governor Ritter, the proposed
leases do not contain No Surface Occupancy (NSO) stipulations for all lands
designated as Areas of Critical Environmental Concern (ACECs).
In a preceding letter to the BLM, Governor Ritter had requested that the BLM designate
36,184 acres on and around the Roan Plateau as Areas of Critical Environmental Concern
(ACECs), and that all of those acres be protected by No Surface Occupancy (NSO) stipulations.
4
In his March 13, 2008, letter to Governor Ritter, Assistant Secretary Allred assured Governor
Ritter that, although only 21,034 acres were designated as ACECs, those ACECs œ
require no, and that, when the ACECs are combined with 17,336 acres of other landsdevelopment would be precluded on 38,470 acres.
B. Contrary to the Written Representation to Governor Ritter, the proposed
lease sale will proceed without the certification necessary to provide the State
of Colorado its fair share of lease revenue
Under the Transfer Act, the State of Colorado risks receiving no revenue from the
proposed lease sale if it takes place before the certification prescribed in subsection (f)(2) of the
Transfer Act, 10 U.S.C. § 7439(f)(2). In his March 13, 2008 letter to Governor Ritter, Assistant
Secretary Allred assured the Governor that the certification œwould occur prior to any lease sale
and œwill allow the State to receive its share of royalties and bonus bids. Although, by all
accounts, funds already collected by the Treasury under 10 U.S.C. § 7439 exceed the projected
cost of environmental remediation at Anvil Points, absent certification under the Transfer Act,
the Act’s terms would appear to indicate that the State, and its affected communities, will not
receive any portion of bonus bid revenues – even if those funds greatly exceed the amounts
necessary to compensate the Treasury for remediation and infrastructure.
The proposed lease sale contradicts this assurance. Certification has not occurred, yet the
BLM is proceeding with the lease sale, and the State of Colorado will not receive its share of
royalties and bonus bids. In order to keep its commitment and provide Colorado its fair share, the
BLM should defer the proposed lease sale until certification has occurred.
.
III. The BLM Should Engage in Phased Leasing Rather than Leasing the Entire Roan
Plateau Planning Area Immediately
A. Phased leasing would facilitate the œadaptive management that the BLM
claims it will practice.
The BLM has repeatedly asserted that it intends to engage in phased development of oil
and gas on the Roan Plateau over time rather than simultaneous development of the entire area.
The BLM has also asserted that it intends to practice œadaptivemanagement of the area,
modifying its management as it learns from the results of monitoring the impacts of oil and gas
development on wildlife habitat and other resources. But the BLM’s insistence on leasing the
entire area all at once precludes such adaptive management because it locks in a set of leases,
5
with a particular set of stipulations, that cannot be changed.
The lease stipulations embody a set of assumptions about which wildlife species need
protection, what specific areas of, and how much, habitat they need, how they will be affected by
disturbance, and how development must be limited in order to protect them. These assumptions
could turn out to be wrong, or the resources they are designed to protect could be affected by
other factors or actions. Research about the effects of oil and gas development on deer, elk, and
other species is ongoing, and lease stipulations that are thought to be necessary and sufficient
today may turn out to be insufficient in a few years.
Similarly, the proposed leases embody a particular set of assumptions about what is
technologically feasible. For example, the lease stipulation for the Parachute Creek High Value
Watershed reflects the BLM’s assumption that one half mile is the greatest minimum spacing for
drill pads that is compatible with full extraction of the oil and gas in the planning area. Only a
few years ago, BLM routinely assumed that such horizontal reach was technologically
unfeasible, but technological innovation has outstripped hat assumption. Further advances in
directional drilling technology may soon allow for much greater pad spacing.
Because the BLM is planning for phased development of the Roan Plateau, it only makes
sense to engage in similarly phased leasing. Leases could be issued now for the first of the six
development areas on the top of the plateau. In the future, leases could be issued for each of the
remaining development areas in turn, with stipulations reflecting the advances in knowledge and
technology that have occurred in the interim. Given BLM’s own stated commitment to phased
development, coupled with the evolving nature of science and technology, it simply makes no
sense to lock in one set of stipulations by leasing the entire plateau at once.
B.
is a violation of NEPA.
The BLM’s failure to analyze and evaluate the alternative of phased leasing
Not only does the BLM’s failure to adopt a phased leasing approach defy common sense,
the BLM’s failure to even analyze such an alternative in the EIS for the RPRMPA is a violation
of NEPA, which requires consideration of all reasonable alternatives.
IV. The BLM Has Not Adequately Analyzed the Impacts of the Proposed Lease Sale on
Wildlife, Wildlife Habitat, and Other Natural Resources On and Around the Roan
Plateau
The issuance of oil and gas leases marks a commitment by the BLM that, under NEPA,
requires a full and thorough analysis of the environmental impacts of the development that may
occur on those leases.
Alliance v. Hodel
with NEPA through preparation of the Final Environmental Impact Statement (FEIS) for the
6
RPRMPA. However, as explained in the attached Protest of the RPRMPA (Attachment 1 to this
Protest), that EIS is deficient in several respects, including, but not limited to the following:
– The FEIS is based on inadequate or non-existent data about wildlife populations and
wildlife habitat on and around the Roan Plateau.
RPRMPA, p. 9.
– The FEIS relies on Best Management Practices (BMPs) and other mitigation
measures without specifying which BMPs and which practices will be required in
which areas.
– The impact analysis in the FEIS is arbitrarily and unreasonably limited to the
development that will occur in the next twenty years, and it likely underestimates the
number of wells that will be drilled even in that time period.
the RPRMPA, pp. 10 – 11.
The BLM has the opportunity to overcome these deficiencies in the final EIS for the
RPRMPA by preparing additional, more specific, NEPA documentation to accompany the
proposed lease sale notice. However, the BLM has chosen not to do so. Moreover, the BLM
has made no commitment to prepare additional NEPA documentation when it receives
applications for permits to drill (APDs) or to conduct other development activities. Therefore,
the BLM is relying entirely on the final EIS for the RPRMPA, and that EIS is inadequate.
.See, e,g., Conner v. Burford, 848 F.2d 1441 (9th Cir. 1988); Bob Marshall, 852 F.2d 1223 (9th Cir. 1988). In this case, the BLM has attempted to complySee attached Protest of theSee attached Protest of the RPRMPA, pp. 6 – 8.See attached Protest of
V. The BLM Has Not Analyzed the Impacts of Development During the Full Life of the
Proposed Leases
The analysis of the environmental impacts in the FEIS for the RPRMPA was limited to a
20-year horizon, which the BLM deemed to be œthe life of the plan. The BLM refused to
analyze the impacts of full field development because œ[f]ull field development is not anticipated
during the life of this plan. Letter from Susan Giannettino, Acting Assistant Director,
Renewable Resources and Planning, to Kathleen C. Zimmerman, National Wildlife Federation,
p. 17 (June 7, 2007) (responding to NWF’s Protest of the Proposed RPRMPA).
the proposed leases is not limited to 20 years.
term
Lease Sale Notice at iii (emphasis added). Moreover, because the BLM is requiring that all
leases on top of the Roan Plateau be covered by a single Federal Unitization Agreement,
the leases on top of the Plateau will continue so long as even one lease is still producing in
paying quantities. Therefore, even if an impact analysis limited to 20 years were adequate to
support the RPRMPA, it is certainly not adequate to support issuance of the proposed leases.
The BLM’s refusal to analyze the impacts of full field development is not only
unjustified, it is also supremely unrealistic. The lands immediately adjoining the proposed
7
leaseholds on all sides, including the western portion of the Roan Plateau right up to the border
of the proposed leaseholds, are already undergoing intensive development for gas extraction.
The gas resource on the proposed leaseholds is well-known and highly sought-after. There is no
reason to believe that it will not be developed to the full extent that the proposed leases will
allow. To issue those leases without a full analysis of the full development that they will allow is
irresponsible and contrary to NEPA.
But the life ofEach lease œwill continue beyond its primaryas long as oil or gas in paying quantities is produced on or for the benefit of the lease.all of
VI. The Majority of the Proposed Lease Stipulations Contain Embedded Waiver
Provisions that Unreasonably and Unlawfully Grant BLM the Authority to Waive
Compliance Without Public Notice, Opportunity for Comment or Protest, or
Environmental Analysis
Because the BLM has rejected the possibility of protecting wildlife and wildlife habitat
by leaving any portion of the Roan Plateau planning area unleased, the primary mechanism for
protecting wildlife, wildlife habitat, and other resources in the planning area is the incorporation
of protective stipulations in leases. The Final EIS (FEIS) and the Record of Decision (ROD) rely
heavily and repeatedly on assurances that such stipulations will be adequate to protect wildlife
and wildlife habitat from degradation by oil and gas development. However, the terms of the
stipulations are so porous that such assurances are not justified.
In an apparently novel stipulation drafting technique, not encountered in lease
stipulations in prior Colorado oil and gas lease sales,
Appendix B (pp. 77 – 107) of the Lease Sale Notice contain embedded provisions that authorize
the BLM to permit development contrary to the terms of the stipulations without advance notice
to the public, opportunity for comment or protest by the public, or documentation under NEPA.
1 the majority of the stipulations set out in
See, e.g.,
in wildlife security areas below the Roan Cliffs œmay be permitted by BLM despite
stipulation in preceding paragraph that œno ground-disturbing activities will be permitted in
such areas). Some of these provisions require prior consultation with the Colorado Division of
Wildlife (CDOW) or the U.S. Fish & Wildlife Service; none require consultation with affected
individuals and private organizations.
These provisions clearly have the effect of allowing the BLM to waive the affected
stipulations without public review or analysis under NEPA. Yet, because these provisions have
Lease Sale Notice at 88 (Exhibit GS-NSO-ROAN-27, stating that ground disturbingactivities
1
November 2007 Lease Sale, Stipulation CO-18 (Raptor Nest Sites – providing that œAny changes to this stipulation
will be made in accordance with the land use plan and/or the regulatory provisions for such changes. (For guidance
on the use of the stipulation, see BLM Manual 1624 and 3101 or FS Manual 1950 and 2820.) Exception Criteria:
Exceptions may be granted during years when the nest site is unoccupied, when occupancy ends by or after May 15,
or once the young have fledged and dispersed from the nest).
Compare GS-NSO-ROAN-25 (Raptor Nest Sites – providing for œembedded waiver) with, e.g., BLM Colorado
8
been embedded in the stipulations themselves, the BLM claims that they are not œexceptions,
modifications, or waivers but rather statements of œthe conditions under which each stipulation
would apply, and standards that must be met for their application. Lease Sale Notice at 77.
This drafting sleight-of-hand, however, does not alter the reality that these provisions, in effect,
grant the BLM broad license to waive stipulations that are critical for protection of wildlife,
wildlife habitat, and other resources. For this reason, we shall hereinafter refer to these
provisions as œembedded waiver provisions even though the BLM attempts to deny that they
authorize waivers.
Embedded waiver provisions are included in the following stipulations in the lease sale
notice:
GS-NSO-ROAN-17 (Wild and Scenic River Eligibility Corridors)
Affected Parcels: COC73074, COC73075, COC73077, COC73079, COC73080,
COC73081, COC73082, COC73084, COC73086, COC73088, COC73089, COC73090,
COC73091, COC73092
GS-NSO-ROAN-18 (Sharrad Park Paleontological Resources)
Affected Parcels: COC73085
GS-NSO-ROAN-23 (Riparian and Wetland Habitat)
Affected Parcels: COC73064, COC73065, COC73066, COC73067, COC73068,
COC73069, COC73070, COC73071, COC73074, COC73075, COC73076, COC73077,
COC73078, COC73079, COC73080, COC73081, COC73082, COC73083, COC73084,
COC73085, COC73086, COC73087, COC73088, COC73089, COC73090, COC73091,
COC73092, COC73093
GS-NSO-ROAN-24 (Threatened, Endangered, or Candidate Species Habit)
Affected Parcels: COC73080, COC73084, COC73090
GS-NSO-ROAN-25 (Raptor Nest Sites)
Affected Parcels: COC73076, COC73079, COC73078, COC73082, COC73083,
COC73084, COC73089, COC73090, COC73091, COC73092, COC73094
GS-NSO-ROAN-27 (Wildlife Security Areas Below the Rim)
Affected Parcels: COC73064, COC73066, COC73068, COC73070, COC73071,
COC73076, COC73077, COC73080, COC73083, COC73084, COC73085, COC73090,
COC73093, COC73094
GS-NSO-ROAN-28 (High Value Special Status Fish Species Habitat)
Affected Parcels: COC73074, COC73075, COC73076, COC73077, COC73078,
COC73079, COC73080, COC73081, COC73082, COC73084, COC73086, COC73088,
COC73089, COC73090, COC73091, COC73092
9
GS-NSO-ROAN-30 (I-70 Viewshed)
Affected Parcels: COC73066, COC73068, COC73069, COC73070, COC73071,
COC73072, COC73080, COC73084, COC73085, COC73090, COC73091, COC73093,
COC73094
GS-NSO-ROAN-31 (East Fork Falls Viewshed (VRM 1)
Affected Parcels: COC73089, COC73092
GS-CSU-ROAN-04 (Erosive Soils and Slopes Greater than 30 percent)
Affected Parcels: COC73064, COC73065, COC73066, COC73067, COC73068,
COC73069, COC73070, COC73071, COC73072, COC73074, COC73076, COC73077,
COC73080, COC73081, COC73083, COC73084, COC73085, COC73089, COC73090,
COC73091, COC73092, COC73093, COC73094
GS-CSU-ROAN-08 (Peregrine Falcon Cliff-Nesting Complex)
Affected Parcels: COC73084, COC73090
GS-CSU-ROAN-09 (Wildlife Security Areas Above the Rim)
Affected Parcels: COC73074, COC73075, COC73076, COC73077, COC73078,
COC73079, COC73080, COC73081, COC73082, COC73084, COC73086, COC73088,
COC73089, COC73090, COC73091, COC73092, COC73093
GS-CSU-ROAN-10 (Big Game Migration Corridors)
Affected Parcels: COC73076, COC73080
GS-CSU-ROAN-12 (Habitat for Special Status Plant Species Populations and Significant
Plan Communities)
Affected Parcels: COC73064, COC73066, COC73068, COC73070, COC73071,
COC73074, COC73076, COC73077, COC73078, COC73079, COC73080, COC73081,
COC73082, COC73083, COC73084, COC73085, COC73086, COC73087, COC73088,
COC73089, COC73090, COC73091, COC73092, COC73094
GS-CSU-ROAN-13 (Parachute Creek High Value Watershed and WMA)
Affected Parcels: COC73077, COC73078, COC73079, COC73080, COC73082,
COC73084, COC73086, COC73087, COC73088, COC73089, COC73090, COC73091,
COC73092
GS-CSU-ROAN-14 (VRM Class II Areas Below the Rim)
Affected Parcels: COC73064, COC73066, COC73068, COC73070, COC73071,
COC73073, COC73074, COC73076, COC73077, COC73080, COC73083, COC73084,
COC73085, COC73090, COC73093, COC73094
GS-CSU-ROAN-15 (VRM Class III Areas Above the Rim
10
Affected Parcels: COC73074, COC73075, COC73076, COC73077, COC73078,
COC73079, COC73080, COC73081, COC73082, COC73084, COC73086, COC73087,
COC73088, COC73089, COC73089, COC73090, COC73091, COC73092
GS-CSU-ROAN-16 (Hubbard Mesa OHV Riding Area)
Affected Parcels: COC73068, COC73069, COC73071, COC73072
GS-TL-ROAN-13 (Big Game Winter Range)
Affected Parcels: COC73065, COC73066, COC73067, COC73068, COC73069,
COC73070, COC73071, COC73072, COC73074, COC73075, COC73076, COC73077,
COC73080, COC73081, COC73083, COC73084, COC73085, COC73089, COC73090,
COC73093, COC73094
GS-TL-ROAN-14 (Raptor Nesting Sites)
Affected Parcels: COC73074, COC73076, COC73078, COC73079, COC73082,
COC73083, COC73084, COC73088, COC73090, COC73091, COC73092, COC73094
GS-TL-ROAN-16 (Peregrine Flacon Cliff- Nesting Complex)
Affected Parcels: COC73084, COC73090, COC73091, COC73094
A. The embedded waiver provisions invalidate the analysis in the Final EIS.
The FEIS’s conclusion that the proposed leases would not have unacceptable adverse
impacts on wildlife, wildlife habitat, recreation, or visual quality were based in large part on the
assumption that the lease stipulations would be applied and enforced. As the BLM stated in its
response to our Protest of the Proposed RPRMPA:
œThis discussion of impacts [in the FEIS] was completed with the assumption that
all the protective measures described in the Proposed RMPA would be applied.
As stated on page 4-6, ˜. . . the impact analyses throughout Chapter 4 assume that
the restrictions and limitations would apply throughout the planning area and 20-
year planning period.’
Letter from Susan Giannettino, Acting Assistant Director, Renewable Resources and Planning, to
Kathleen C. Zimmerman, National Wildlife Federation, p. 17 (June 7, 2007) However, the broad
embedded waiver provisions in most of the stipulations create a likelihood that the protective
measures described in the RPRMPA will
analysis in the FEIS and they represent, in effect, the adoption of a new alternative whose
impacts were not analyzed in the FEIS.
not be applied. They therefore render invalid the
B. The embedded waiver provisions are contrary to 43 C.F.R. § 3101.1-4
43 C.F.R. § 3101.1-4 governs the modification and waiver of lease provisions. That
11
regulatory section requires a public review period of at least 30 days before modification or
waiver of œa stipulation [that] involves an issue of major concern to the public and before a
œsubstantial modification or waiver of any stipulation.
All of the stipulations in which the BLM has embedded waiver provisions œinvolve issues
of major concern to the public. Numerous and extensive public comments have expressed the
widespread concern that oil and gas development on and around the Roan Plateau will damage or
destroy the resources that these stipulations are designed to protect: Wild and Scenic Rivers,
riparian and wetland habitats, habitat for threatened or endangered species of wildlife, rare
plants, raptor nesting sites, crucial deer and elk habitat, Colorado River cutthroat trout, soils,
watersheds, fossils, and scenic views. These stipulations are the BLM’s primary means of
addressing these major public concerns. Therefore, under 43 C.F.R. § 3101.1-4, the BLM
should find that all of these stipulations œinvolve issues of major concern to the public and
specify in the leases that they will not be modified or waived without a 30-day public review
period.
Instead, however, the BLM has rigged the stipulations by placing within them embedded
waiver provisions that allow the BLM to permit, without public review, activities that violate the
prohibitions of the stipulations. This transparent circumvention of the requirements of 43
C.F.R.§ 3101.1-4 is unlawful. The stipulations should be revised to eliminate the embedded
waiver provisions and to state that they will not be waived or modified without a 30-day public
review period.
.
C. The embedded waiver provisions are contrary to the public participation
requirements of NEPA and FLPMA.
The regulations implementing NEPA require the BLM to œ[m]ake diligent efforts to
involve the public in preparing and implementing their NEPA procedures. 40 C.F.R.
§ 1506.6(a). The modification or waiver of stipulations that were developed through the NEPA
process is part of the implementation of BLM’s NEPA procedures. Therefore, the BLM is
required to make diligent efforts to involve the public in decisions about such modifications or
waivers. But the embedded waiver provisions do just the opposite; they are a contrivance that
excludes the public from decisions about waivers and modifications. They are therefore contrary
to 40 C.F.R. § 1506.6(a) and to NEPA, which that regulation implements.
The embedded waiver provisions are also contrary to the Federal Land Policy and
Management Act (FLPMA). Section 309(e) of FLPMA requires the BLM to œestablish
procedures, including public hearings where appropriate, to give the Federal, State, and local
governments
formulation of standards and criteria for,
plans and programs for,
(emphasis added). As reflected in the emphasized language, Congress intended to require public
participation not only in the preparation of plans and programs, but also œthere are strong
12
indications that Congress intended some form of public input for all decisions that may have
significant impact on federal lands.
(D.C. Cir. 1987) (citing H.R. Rep. No. 1163, 94th Cong., 2d Sess. 7 (1976), U.S. Code Cong. &
Admin. News 1976, p. 6181). Decisions to permit drilling and other oil and gas development
activities in areas that would otherwise be closed to such activities by lease stipulations are
clearly decisions that may have significant impact on federal lands. Therefore, under FLPMA,
public input is required for such decisions. By authorizing such decisions without public notice
or opportunity for comment, the embedded waiver provisions in the proposed leases violate
FLPMA.
and the public adequate notice and an opportunity to comment upon theand to participate in, the preparation and execution ofand the management of, the public lands. 43 U.S.C. § 1739(e)National Wildlife Federation v. Burford, 835 F.2d 305
D. The standards incorporated in the embedded waiver provisions are far too
vague, and they undermine the transparency of the stipulations and the
public process by which they were developed.
The embedded waiver provisions include standards that purport to limit their application
so as not to defeat the purposes of the stipulations. But these standards are so vague as to be
virtually meaningless. Again, stipulation GS-NSO-ROAN-27 (Lease Sale Notice at 88),
concerning ground-disturbing activities in specified wildlife security areas below the Roan
Cliffs, is a typical example. The embedded waiver provision in this stipulation states that such
otherwise-forbidden activities may be permitted if the BLM determines that they œwould not
impair values associated with maintenance of the species of interest. The wording of the
embedded waiver provisions in most of the other stipulations is very similar.
The meaning of œvalues associated with maintenance is completely unclear. The
provision goes on to provide a long list of factors that the BLM will œconsider in making this
determination, but the list does nothing to clarify the standard to be applied to those factors.
Moreover, such
stipulations were developed in the first place. Through the NEPA process, with public input and
review, the BLM has already concluded that maintenance of certain wildlife species requires that
certain activities be prohibited in certain specified areas. The embedded waiver provisions,
however, allow the BLM to reconsider those conclusions in a non-public, NEPA-free process.
ad hoc determinations completely vitiate the public NEPA process by which the
E. Contrary to NEPA, the embedded waiver provisions fail to account for the
cumulative effects of the activities that they will permit.
The most pernicious effect of the embedded waiver provisions is that they can be used to
authorize many individual activities that each may have an insignificant impact on wildlife or
other resources but that will cumulatively have major effects on such resources. The BLM may
readily determine, for example, that a single well pad, pipeline, or other ground disturbance in a
wildlife security area œwould not impair values associated with maintenance of deer or elk. But
the combined effect of many such disturbances, along with the effects of other activities
permitted by the embedded waiver provisions contained in other stipulations, will
unquestionably have a much greater impact than will any single disturbance.
13
As the BLM is well aware, it is for precisely this reason that NEPA requires the BLM to
assess the cumulative effects of
provisions, because they allow the BLM to authorize many activities without analyzing or
considering the cumulative effects of those activities, are contrary to NEPA.
all the actions it takes in any area. Thus, the embedded waiver
F. The monitoring and reporting requirements accompanying the embedded
waivers are far too vague and abdicate the BLM’s responsibilities
Each of the embedded waiver provisions contains a boiler-plate monitoring requirement,
but that monitoring requirement is so non-specific that it provides no assurance that adverse
affects of permitted activities will be detected and corrective action taken in a timely fashion.
The boiler-plate requirement states simply that œongoing monitoring data shall be collected by
the proponent using widely accepted scientific methods. It does not state what will be
monitored, how it will be monitored, when and where it will be monitored, or the intensity or
frequency of the monitoring. It leaves these decisions up to the oil and gas operators, and
requires only annual reporting to the BLM and notification to the BLM œif unanticipated types or
levels of adverse effects are noted. The determination of what constitutes an œunanticipated
type or level of adverse effect is also left to the operator. This boiler-plate monitoring
requirement is not only inadequate but it also abdicates the BLM’s responsibility to protect the
land and its resources from degradation.
.
VII. The œExploratory Well Exception to the Phased Development Stipulation for the
Top of the Roan Plateau Renders that Stipulation Ineffective
The key to the BLM’s plan for limiting the effects of oil and gas development on wildlife
and other resources on top of the Roan Plateau is the stipulation requiring the sequential
development of six different areas on top of the plateau, with no development permitted on an
area until the previous area has been reclaimed. (Stipulation GS-CSU-ROAN-13, affecting
parcels COC73077, COC73078, COC73079, COC73080, COC73082, COC73084, COC73086,
COC73087, COC73088, COC73089, COC73090, COC73091, and COC73092.) But this
stipulation includes a glaring exception, providing that œexploratory wells may be drilled in other
areas sufficient to plan future drilling operations. This exception is so broad that it swallows
the rule. Under this exception, exploratory wells, with no clear limit on their number, and their
associated disturbance and infrastructure may be present and active in any, or all, of the six
development areas at the same time.
This exception should either be removed or greatly circumscribed. If it is not removed,
it should be clarified to sharply limit the number of exploratory wells and to require that
exploratory wells be no more than one development area ahead of the rest of the development on
the plateau.
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VIII. The Controlled Surface Use (CSU) Stipulations Are Far Too Vague and Leave
Critical Decisions to be Made Without Public Review or Environmental Analysis
The problems created by the embedded waiver provisions in most of the proposed lease
stipulations are made even worse by the vague provisions of the Controlled Surface Use (CSU)
stipulations. The CSU stipulations provide that the BLM may, but not necessarily will, take
certain actions to protect erosive soils and steep slopes (GS-CSU-ROAN-04), riparian and
wetland habitats (GS-CSU-ROAN-07), a peregrine falcon cliff-nesting complex (GS-CSUROAN-
08), wildlife security areas above the rim (GS-CSU-ROAN-09), big game migration
corridors (GS-CSU-ROAN-10), special status plant species and significant plant communities
(GS-CSU-ROAN-12), the Parachute Creek high value watershed (GS-CSU-ROAN-13), VRM
Class II areas below the Roan Cliffs (GS-CSU-ROAN-14), and VRM Class III areas on top of
the Roan Plateau (GS-CSU-ROAN-15). These provisions leave the protection of critical
resources to the unfettered discretion of the BLM. The public has no way of knowing whether,
when, how, or to what extent the BLM will exercise the discretion it has under these provisions,
no assurance that the BLM’s actions will be adequate to protect the resources concerned, and no
opportunity for input into the BLM’s actions. Therefore, these provisions, like the embedded
waiver provisions in these and most of the other stipulations, are contrary to the environmental
analysis requirements of NEPA and to the public participation requirements of NEPA and
FLPMA.
IX. The Proposed Lease Sale Will Result in Unnecessary and Undue Degradation of
Wildlife and Wildlife Habitat
FLPMA requires the BLM to œtake any action necessary to prevent unnecessary or undue
degradation of the [public] lands. 43 U.S.C. § 1732(b). The resources that this requirement
protects include wildlife and wildlife habitat.
define œunnecessary or undue degradation, any degradation that results from a failure to take
reasonably available measures to minimize or avoid such degradation is surely both
œunnecessary and undue.
As noted in the attached October 16, 2006, Protest of the Proposed Roan Plateau
Resource Management Plan Amendment (RPRMPA) (Attachment 1 to this Protest), the
proposed lease sale will result in numerous forms of degradation of wildlife habitat, some of
which are recognized in the Final Environmental Impact Statement (FEIS) accompanying the
RPRMPA. These forms of degradation include, but are not limited to, a loss of 18.7 percent of
the remaining mule deer wintering habitat below the Roan Cliffs, displacement of deer and elk
populations, and loss or permanent alteration of some areas of high quality wildlife habitat for
species such as Colorado River cutthroat trout.
Proposed RPRMPA at 3 (quoting FEIS at 4-55, 4-44, and 4-130, respectively). There are
numerous readily available measures to protect wildlife and wildlife habitat in the Roan Plateau
15
Planning Area that the BLM could have, but did not, include in the proposed leases.
See id. § 1701(a)(8). While FLPMA does notSee October 16, 2006, NWF/CWF Protest of
A. The BLM has failed to designate and protect crucial wildlife habitat areas as
Areas of Critical Environmental Concern (ACECs).
FLPMA requires the BLM to œgive priority to the designation and protection of areas of
critical environmental concern. 43 U.S.C. 1712(c)(3). The BLM, in its draft EIS for the
RPRMPA, identified 36,184 acres in(1) the East Fork Parachute Creek Watershed, (2) the
Trapper and Northwater Creeks watersheds, (3) the Anvil Points watershed, and (4) the Magpie
Gulch area that deserve protection as ACECs because they provide crucial habitat for mule deer,
elk, and Colorado River cutthroat trout. The Colorado Division of Wildlife, which is the agency
responsible for management of fish and wildlife in Colorado, wrote in its comments on the
BLM’s final proposal for designation of ACECs:
We believed at the time of the draft plan, and still believe today, that the ACECs
identified in the 1999 [draft] EIS should be fully protected as ACECs with No
Surface Occupancy stipulations. . . . Without these very minimum ACECs, we
can say that the plan will jeopardize the Roan Plateau’s important wildlife habitat.
NWF and CWF voiced the same concern in the August 9, 2007, letter that is attached to
this protest as Attachment 2. The reasons for protecting the full 36,184 acres of proposed
ACECs were also presented in detail in a December 20, 2007, letter from Harris Sherman,
Director of the Colorado Department of Natural Resources to BLM Colorado State Director
Sally Wisely (Attachment 3 to this Protest). The BLM, however, extended ACEC designation
only to a reduced area of approximately 21,000 acres, and even that reduced area is not fully
protected by NSO stipulations. Specifically, areas of critical big game winter range below the
Roan Cliffs in the Anvil Points and Magpie Gulch ACECs are not protected by NSO stipulations.
The proposed lease sale should be withdrawn and revised to extend ACEC designation,
with full NSO protection, to the 36,184 acres of ACECs proposed in the 1999 Draft EIS.
B. The BLM has failed to adequately protect big game habitat below the Roan
Cliffs.
As CDOW, NWF, and CWF have repeatedly emphasized, winter habitat below the Roan
Cliffs is just as critical, if not more critical, to deer and elk populations as is summer habitat
above the rim. As adjacent private lands are under intense energy development, the federal
public lands at the base of the Roan Plateau provide some of the last remaining undeveloped
winter range. Yet the proposed leases fail to extend the same protection to habitat below the rim
as they do to habitat above the rim. In order to fully protect habitat below the rim, the following
measures should be implemented:
(1) The same clustered, phased, development, with surface disturbance being limited to
16
one development area at a time, that is being required for development in the Parachute Creek
High Value Watershed and WMA above the rim should also be required in deer and elk winter
range below the rim.
(2) The same half-mile (or greater) well spacing that is being required in the Parachute
Creek High Value Watershed and WMA above the rim should be required in deer and elk winter
range below the rim.
(3) All remaining critical mule deer wintering habitat below the rim should be protected
by NSO stipulations.
C. Well-spacing requirements should be increased in critical wildlife areas.
The proposed lease sale stipulation for the Parachute Creek High Value Watershed on top
of the plateau requires a minimum of one half mile between drill pads, which corresponds to a
pad spacing of 160 acres, or four pads per section. Available evidence suggests that 160-acre
spacing is not sufficient to protect big game habitat. For example, according to the
recommendations of the Wyoming Game and Fish Department, a density of four pads per section
is on the margin between œhigh and œextreme impacts on elk crucial winter range and calving
areas.
and Gas Resources within Crucial and Important Wildlife Habitats 23 (2004) (available at
See Wyoming Game and Fish Department, Recommendations for Development of Oil
http://gf.state.wy.us/downloads/pdf/og.pdf
of four pads per section is at the very upper end of the range of pad densities (1 – 4 pads per
section) for which the impacts on crucial deer winter range can be considered œmoderate.
Moreover, the industry can do better than 160-acre spacing. The proposed wildlife
habitat protection rules of the Colorado Oil and Gas Commission have a provision (proposed rule
1208.c ) encouraging operators to limit well sites to two per section (320-acre spacing) in
sensitive wildlife habitats (including mule deer critical winter range) and one per section (640-
acre spacing, or one mile average distance between wells) in sage grouse areas. There is no
reason that a spacing at least this great should not be required on the Roan Plateau.
). According to the same recommendations, a density
Conclusion
For all of the foregoing reasons, the National Wildlife Federation and the Colorado
Wildlife Federation respectfully request that the BLM remove all of the parcels listed on the first
page of this Protest from the August 14, 2008, lease sale.
17
Respectfully submitted,
Joseph M. Feller, Senior Counsel
National Wildlife Federation
2260 Baseline Road, Suite 100
Boulder, CO 80302
(303) 441-5158
FellerJ@nwf.org
for the National Wildlife Federation and the
Colorado Wildlife Federation
Attachments:
1. Protest filed by the National Wildlife Federation and the Colorado Wildlife Federation, dated
October 16, 2006, of the Proposed Roan Plateau Resource Management Plan Amendment
(RPRMPA) that was issued in September, 2006.
2. Letter, dated August 9, 2007, from the National Wildlife Federation and the Colorado
Wildlife Federation, commenting on the proposed Areas of Critical Environmental Concern
(ACECs) for the Roan Plateau Planning Area.
3. Letter, dated December 20, 2007, from Sherman Harris, Director of the Colorado Department
of Natural Resources, to BLM Colorado State Director Sally Wisely, regarding Comments on
Proposed ACEC Provisions in the Roan Plateau Resource Management Plan Amendment. This
letter presents a specific proposal for oil and gas development on the Roan Plateau that reflects,
and would resolve, many of the issues and concerns raised in this Protest. We therefore request
that all of the points raised in the attached December 20, 2007, letter be treated as reasons for this
Protest.
surface occupancy
protected by NSO stipulations, œ
The proposed lease sale contradicts this assurance. Although some of the proposed leases
contain NSO stipulations, those NSOs do not cover the entire 21,034 acres designated as
ACECs, and development is not precluded on 38,470 acres. Therefore, the proposed leases
should be withdrawn and rewritten to provide for no surface occupancy on all lands designated
as ACECs, as promised to Governor Ritter by Assistant Secretary Allred.