Governor calls Revised Pinedale RMP 'UNACCEPTABLE'
by Governor Freudenthal media release
May 2, 2008
(Cheyenne, Wyo) – The revised Pinedale Resource Management Plan is unacceptable, Gov. Dave Freudenthal said today.
In the development of the Pinedale Resource Management Plan (RMP), the Bureau of Land Management largely excluded cooperating agencies like the state of Wyoming. As a result, the agency’s deficient process generated an unacceptable management document, he said.
In comments submitted to Project Manager Kellie Roadifer and Pinedale Field Office Manager Chuck Otto, the Governor expressed serious concern that the management document doesn’t go far enough to address impacts to air and water quality, socioeconomics in the Pinedale area and other resource vales. It also inadequately addresses important issues such as categorical exclusions, habitat fragmentation and effects on critical winter range and migration routes for big game and sage grouse.
“This document will guide BLM resource management policy in the Pinedale Resource Area for the next 20-25 years,” Freudenthal said. “My expectations are high; it is absolutely imperative that we work in full cooperation to craft a plan that responsibly and appropriately addresses all the important resource values that will be affected.”
Not only is the document not thorough enough in its scope, Freudenthal said, but it also diverges from the analytical framework originally agreed upon by the BLM and cooperating agencies.
“It has only been through follow up telephone discussions that the state became aware that the fundamental underlying premise of the Pinedale RMP has been changed from a “performance-based, adaptive management” plan to a “prescriptive” plan,” he said. “The problem is, this preliminary document does not contain the necessary elements of either a performance based approach or a prescriptive approach; it is currently some kind of hybrid document that we, quite frankly, have never seen before. This is unacceptable.”
The Governor urged the BLM to include language that requires the implementation of any mitigation efforts spelled out in the RMP.
“Without this language, we’re basically giving the BLM a blank check,” Freudenthal said.
The Governor’s letter follows below.
May 2, 2008
Kellie Roadifer, Project Manager
Chuck Otto, Pinedale Field Office Manager
Pinedale Field Office
Bureau of Land Management
P.O. Box 768
Pinedale, WY 82941-0768
RE: Pinedale RMP Preliminary Final Environmental Impact Statement
Dear Ms. Roadifer and Mr. Otto:
I appreciate the two-week extension granted by BLM at the request of state cooperators to submit comments on the Pinedale RMP Preliminary Final Environmental Impact Statement (Preliminary FEIS). There are many resource values to consider and balance at this important time of decision. This revised Pinedale Resource Management Plan (Pinedale RMP) will affect BLM resource management policy in the Pinedale Resource Area for the next 20-25 years. My expectations are high; it is absolutely imperative that we work in full cooperation to craft a plan which responsibly and appropriately addresses all the important resource values which will be affected over this future time horizon. I am concerned by the recurring failures of the BLM State Office and the Pinedale Field Office to fulfill the spirit of the lead agency / cooperating agency relationship.
By definition under NEPA, cooperating agency representatives (cooperators) have jurisdictional authority, experience and expertise in their respective professions and issue areas. To protect the interests of Wyoming citizens, the BLM must treat state cooperators as true partners on the interdisciplinary team (ID team) for this Pinedale RMP revision process. For constructive purposes of moving forward and creating a truly workable plan, I ask that we stop for a moment and reflect on the process that has been in place for the past 10 months for the Pinedale RMP. From the June 18, 2007, deadline for comments on the Draft EIS document to the March 28, 2008, notice of the Preliminary FEIS document, cooperators have been provided a sterile participatory process. During that time, the BLM failed to provide cooperators essential information regarding BLM responses to the comments and recommendations submitted on the Draft EIS from both cooperators and the public. As a result, cooperators have not been provided the time necessary to adequately review BLM responses and whether the comments they submitted were incorporated into the Preliminary FEIS document. Additionally, there has been no opportunity for cooperators to meet with BLM staff to discuss and resolve their concerns and recommendations, a process ingredient which will strengthen the Pinedale RMP and which is essential to any real effort to create a true cooperator partnership. Cooperators have merely been allowed to send in formal written comments on each subsequent draft of the Pinedale RMP with the expectation that we all march forward to meet some arbitrarily established deadline without having cooperator concerns satisfactorily addressed.
To put a finer point on the problems caused by the lack of partnership to date in the Pinedale RMP process, it has only been through follow up telephone discussions between state cooperators and BLM staff that on April 21, 2008 the state first became aware that the fundamental underlying premise of the Pinedale RMP has apparently been changed from a “performance based, adaptive management” plan to a “prescriptive” plan. Furthermore, based on the state cooperators’ review, this Preliminary FEIS document does not contain the necessary elements of either a performance based approach or a prescriptive approach; it is currently some kind of hybrid document that we quite frankly have never seen before. This is unacceptable.
Without a highly interactive ID team partnership between BLM and cooperators, misunderstanding will likely result in delays and potentially outright derailment. It seems that the Pinedale staff completed their private internal reviews of the Draft EIS in a virtual vacuum from interaction with state cooperators. This approach does not advance the understanding among all participants that is needed to develop a successful plan which I can support. I fail to understand why the successful Casper RMP process cannot serve as a template throughout Wyoming in all BLM field offices. The cooperators in the Casper RMP process were treated as full cooperating partners. Whenever there were concerns or disagreements, the BLM and cooperators met face-to-face and worked through all outstanding issues until they were resolved. The Casper RMP process should be used as a model at every opportunity in Wyoming.
Given the unilateral and unnoticed decision by BLM to shift from a performance based plan to a prescription based plan, neither the general public nor cooperators have been provided with a complete and properly noticed draft document. Therefore the public has not been fully informed about the true character of the plan or included in the review process for a changed plan in a timely or meaningful manner. Without public notification in the original Draft EIS that such a fundamental change in the overall analytical approach was being contemplated, it now seems paramount that this circumstance be corrected before the process moves to the Preliminary FEIS stage of review. Logically, if the BLM truly wants to make such a fundamental change in its overall analytical approach, a revised Draft EIS which clearly describes that the analytical approach will now be based on a prescriptive framework instead of the previously noticed intent to use a performance based framework must be published with opportunity for full informed public review and comment before the Pinedale RMP process can move forward. Furthermore, a revised Draft EIS must contain all the necessary elements required for a prescription based plan. Had state cooperators been involved in the discussions and the decision to make such a change, all of these concerns and issues would have been voiced months ago. Once again the lack of cooperator involvement will now result in unnecessary delay and the inefficient use of everyone’s valuable time and resources.
There are specific structural concerns that must be addressed. Based on the review by state and local cooperators and speaking generally, the baseline data inventory is lacking and the information does not reflect best available information or best available science in many instances. In Chapter 3, The Affected Environment, the analysis does not accurately characterize the potential impacts nor does it discuss monitoring strategies necessary for filling in the holes in the baseline data inventory or monitoring for potential impacts. In Chapter 4, Environmental Consequences, the Preliminary FEIS document does not adequately discuss reasonably foreseeable effects likely associated with the proposed action. Both state and local cooperating agencies have prepared more specific discussions which they are submitting, and I expect their issues to be fully considered, discussed and addressed. I am aware that the general concerns which I have mentioned will be specifically identified for issues related to the potential impacts on wildlife, including big game winter range, big game migration routes, and sage grouse habitat in particular. I know there are similar concerns regarding air quality issues, water quality issues, socioeconomic impacts, cultural and historical resources, livestock grazing and tourism impacts.
Unfortunately, given the recent history of the Pinedale RMP process, the two-week extension does not afford adequate time for sufficient face-to-face or phone-to-phone interactive discussions between our respective staff professionals to gain understanding and resolve misunderstandings and disagreements. Yet these discussions are imperative. An initial comparison by state cooperators of the Preliminary FEIS and their comments submitted on the Draft EIS reveals that far too few of their comments were incorporated into the Preliminary FEIS. The brief written responses and explanations are inadequate to satisfy the need for understanding by state cooperators. If additional direct interactive discussions do not occur, this process is nothing short of a superficial opportunity for another meaningless cooperator review. Without an adequate opportunity for meaningful cooperator participation in the review, the State of Wyoming may have to consider other avenues to ensure that the Pinedale Field Office manages its resources in a coordinated and effective manner. The stakes are too high and the potential impacts too great for this process to be short changed. The people deserve nothing less than our mutual best efforts for a fully informed and balanced Record of Decision. We have not reached my level of expectations.
Having stated my underlying discontent with the process and clarified my expectations for the necessary next steps to get this process back on track, there are some essential specific issues that must be addressed in the Pinedale RMP. As mentioned, state cooperators will be submitting their respective detailed comments and recommendations, and they stand ready to engage in discussions with supporting technical information.
SPECIFIC AREAS OF CONCERN WITH THE PINEDALE RMP PFEIS DOCUMENT
An RMP Implementation Plan
Prior to the discussions between Pinedale staff and state cooperators on April 21, 2008, it was our understanding that the proposed Pinedale RMP was intended to be performance based and would therefore rely on provisions for the adaptive management of resources and resource values. Given the recently discovered uncertainty and serious level of overall confusion surrounding this previously understood course, we are engaged in a last ditch effort to try and cover the bases.
The state has generally supported the conceptual framework for performance based, adaptive management of all resources on federal BLM lands since it provides additional flexibility to meet changing circumstances. However, a performance based approach can only work with well planned monitoring and mitigation agreements backed up by vigilant enforcement of all agreements by the BLM. I have taken the initiative in my discussions at all levels within the Department of Interior – from the Assistant Secretary level within the Washington D.C. Department of Interior office to the Director of the Wyoming State BLM Office to the Wyoming field office managers and their staffs - to let everyone know that the BLM needs sufficient monetary and personnel support to effectively manage all resources under BLM purview. Clearly more money, more BLM inspectors and more support staff in Wyoming are absolutely necessary to fulfill the agency’s responsibilities. BLM’s legacy of project implementation, specifically in the context of the 2000 Pinedale Anticline ROD, the recent Atlantic Rim ROD, and the 2000 Moxa Arch ROD, raises serious concerns. I need enforceable assurance that BLM oversight of the implementation of this Pinedale RMP will in fact work as intended and meet standards agreed to by the BLM and the state.
In partial consideration of this overriding concern, the state reached agreement with the Wyoming State BLM office to include implementation language in all Wyoming RMPs. The agreed to language is as follows:
After issuing the Approved Plan and Record of Decision (ROD), an implementation Strategy will be developed. The Implementation Strategy will include an annual coordination meeting between BLM and the Cooperating Agencies in the RMP revision. The annual coordination meeting will include an update on implementation of the plan, foreseeable activities for the upcoming year, and opportunities for continued collaboration with the RMP coordinators. Additional coordination meetings could be held as needed.
I ask that this language be included in the Final EIS and the Record of Decision.
Even assuming inclusion of this language, I wish to reiterate my serious misgivings about giving BLM a functional blank check in the form of a performance based plan – especially in light of the recent teetering between performance-based and prescriptive planning and the lack of real dialogue with state and local cooperators. If actual assurances of funding and real prioritization of implementation standards are not forthcoming in the context of this revised Pinedale RMP and other Wyoming RMP revisions, as well as for specific project-related NEPA documents, I may have no choice other than to pursue alternative avenues to ensure implementation and plan compliance.
Section 390 Categorical Exclusions
I want to reiterate our standing concerns with the statutory categorical exclusions authorized under the Energy Policy Act of 2005 Section 390(b)(3).
Starting with the Pinedale and Rawlins RMP revision processes, state cooperators have been told that land use plans are “30,000 foot level” perspectives for the management of federal lands. We have repeatedly endeavored to have site-specific management prescriptions – together with the accompanying cumulative effects - written into and analyzed in these land use plans, only to have the BLM tell us that site specific prescriptions and effects analyses are to be addressed in the project level environmental impact statements. As a result, we have deferred our calls for site-specific management and an analysis of the effects of that management until project level impact analysis is conducted. Consequently, every RMP, including the Pinedale RMP, is quite general when it comes to impact analyses for resources such as wildlife, wildlife habitat, air quality, grazing disturbance, and cultural and historic resources.
Given the deliberately limited impact analyses of the land use plans, the application of Section 390(b)(3) categorical exclusions for drilling tiered to the land use planning level of an RMP without any additional NEPA analyses is wholly inadequate and inappropriate. Many valuable resources, including those specifically mentioned above, are currently under tremendous pressures from oil and gas extraction activities in the Pinedale Resource Area, and the potential implications for these other resources are serious. A fair and balanced public process requires an objective opportunity to identify and consider the inherent values of all the various resources before making decisions. If quantitative analyses are not provided for in the RMP process, the opportunity for such analyses must be provided in some alternative forum prior to the approval of extensive oil and gas extraction. Categorical exclusions simply do not provide this alternative forum – with their application actually short-circuiting needed analysis prior to authorizations being granted.
While we remain convinced that the only failsafe way to address state concerns is for Congress to amend the Act to remove the Section 390(b)(3) authorizations, we appreciate your willingness to require administratively imposed cumulative and quantitative analyses, and where necessary, appropriate monitoring and mitigation. To this end, we were asked to recommend a mechanism for reviewing and providing protection and mitigation measures for oil and gas developments that qualify under Categorical Exclusion Section 390 (b)(3) of the 2005 Energy Policy Act. The state recommends a process which includes an Implementation Plan that would be included in the revised Pinedale RMP to guide the administration of categorical exclusions going forward and allow both the BLM and state agencies to effectively and efficiently deal with impacts that would otherwise go unaddressed.
The Implementation Plan would include the following provisions:
● At a minimum, at least one meeting annually with state cooperators, and the opportunity for state cooperating agencies to actively participate in the implementation of the RMP.
● Timely identification of the existing oil and gas fields where APDs (Application for Permit to Drill) will be considered for issuance under Categorical Exclusion (b) (3).
● For efficiency, APDs should be batched, particularly on multiple well pads, to allow state agencies the opportunity to assess the impacts expected from the granting of the APDs in a more cumulative fashion.
● State agencies would provide programmatic Conditions of Approval designed to avoid or mitigate impacts to potentially be applied to each APD.
● Recognition that any oil and gas related activities beyond the actual drilling activity, e.g., additional roads, pad extensions, pad construction, product lines, etc., are not subject to categorical exclusion and require full NEPA impact analysis.
The congressional intent of categorical exclusion (b) (3) was to avoid unnecessary NEPA review. Unfortunately, it had the unintended result of potentially eliminating state agency review, analysis and guidance to mitigate impacts to other resources that state agencies have the legal authority and responsibility to manage. In the absence of some process similar to that outlined above, the state will be left in the position of controlling emissions and wildlife impacts through a series of regulatory actions instead of cooperative planning.
A central focus of the revised RMP is the planning and implementation of oil and gas management. All of the action alternatives utilize the “management area” concept for allocating intensity of development, and this concept has become the primary influence for the land allocation and management of other resources. Within that concept, adequate protection and management of other resources must also be addressed and their function assured.
The use of management areas for varying levels of oil and gas development as described in the Preliminary FEIS does not instill sufficient confidence that other resources and resource values will be adequately considered and protected. The descriptions do not clearly define the areas, distribution, intensity, or timing of surface disturbances during the life of the RMP. Without additional clarification, development could easily be allowed to occur over the majority of the Pinedale area simultaneously and in such dispersed levels of activity that it could significantly reduce habitat function at the landscape level as well as the localized level. Even the so called Unavailable Areas do not truly seem to be “unavailable” since parcels can be swapped for nonproductive leases elsewhere.
Reiterating an earlier point in this specific context, the implementation of this RMP was designed to be performance-based. If this approach is implemented properly, objectives can address maximum amounts and distributions of development at any point in time, and many of these issues can be adequately addressed. To accomplish this, objectives must be more specific than currently stated, and maximum allowable impacts will need to be described. Continual monitoring and evaluation of monitoring information is needed to determine if objectives for activity plans are being met. I remain skeptical of the BLM’s ability to truly and effectively implement any plan – no less a performance-based arrangement. Regardless, involvement by state cooperators with the responsibility of managing the resources being monitored is absolutely critical. The Pinedale RMP needs to definitively outline an interagency process for planning, monitoring, and achievement of performance based objectives.
Unfortunately, the NEPA process outlined for the management area approach is not outlined sufficiently. There is no description of the process required for actions within each of the management area descriptions, and in some cases for lands to be switched from one management area to another. It is particularly important that this be clarified in light of the categorical exclusion process, as described under the current 2005 Energy Policy Act and its potential influence on decision making during the implementation of the revised RMP.
Overall, at the current stage of development, the document still requires considerable further face to face discussions for clarification of management areas at the concept level in order to provide adequate planning components and direction. Again, I urge BLM to meet with Cooperators to discuss these items before moving forward with the Final EIS.
Special Management of Special Areas
With the intense development that is taking place in the Pinedale area and on other adjacent parcels, it is absolutely critical to protect the integrity of currently unleased acreage in the Pinedale area. To this end, I wish to express my thanks for the work of the Pinedale Field Office to protect the Ryegrass, Bench Corral, Wind River Front, Cottonwoods, and key migration routes from further leasing. Even with this protection in place, there are existing leases in these areas. This being the case and considering the intrinsic value of many of these areas to sage grouse – many of these areas are identified as “core sage grouse habitats” by my Sage Grouse Implementation Team – I would ask that APDs on these existing leases be heavily conditioned not only to protect sage grouse, but other wildlife habitat, fisheries andsurface values as well.
Environmental Concerns – Air Quality
The current Preliminary FEIS for the Pinedale RMP fails to recognize significant concerns posed by impacts of oil and gas development on air quality in the region. It fails to disclose recent data on elevated ozone levels. The Wyoming Department of Environmental Quality (DEQ) believes oil and gas operations contribute to those levels. The RMP asks us to evaluate development choices ranging from full development of all resources as typified by Alternative 2 to an arguably environmentally protective alternative as typified by Alternative 3. The recommended alternative appears to lie just south of the full development option, but fails to consider impacts of this alternative on Air Quality.
The Air Quality Division provided numerous comments on the Draft EIS, which have been largely ignored in the Preliminary FEIS. Additionally, while the document does appear to evaluate NOx emission impacts from a range of alternatives, it is silent on the effects posed by each alternative on emissions of volatile organic compounds (VOCs), which are also precursors to Ozone. NOx increases appear to be significant for any alternative. I do not believe that enough information has been disclosed to allow for an informed decision with respect to alternative selection.
While we understand BLM’s position that air quality analysiscontained in an RMP should be a 30,000 foot perspective, the Pinedale RMP will set the course for development for 20 to 25 years. In this case, we are dealing with a part of Wyoming’s air resource that is significantly impacted, so it would be appropriate to provide a more in-depth analysis of the air impacts from alternative scenarios. The Air Quality Division is providing separate, detailed comments, which I expect to be thoroughly addressed.
Environmental Concerns - Watershed and Water Quality Management
(Surface and Groundwater)
Good management decisions to protect water quality must be based on scientifically valid and representative data. Oil and gas drilling and production activities, if not managed correctly, can be a threat to groundwater quality in the Pinedale area. The Pinedale RMP needs to recognize this threat and include a detailed discussion of the monitoring strategy BLM will use to ensure timely identification of groundwater impacts. Further, the Pinedale RMP should clearly describe the process that operators will follow when groundwater resources are impacted. All operators need to be required to investigate, identify, and mitigate potential sources of groundwater contamination. Similarly, both point and non-point sources of pollution can threaten surface water resources. The Pinedale RMP needs to include a detailed discussion of the BLM monitoring strategy for ensuring management actions and decisions which will protect both groundwater and surface water quality. At a minimum, there should be a commitment to notify and inform DEQ of any release which has entered or threatens to enter either surface or groundwater resources.
The Watershed and Water Quality Management, and Soils Management sections need goals, objectives and management actions regarding contamination caused by spills and releases of chemicals, petroleum products and produced water. The Final EIS should require and ensure the reporting of spills and releases of chemicals, petroleum products, and produced water to the Wyoming DEQ, as required by state regulation. The Final EIS should reiterate this point and explain how ground water, surface waters and soils impacted by spills, releases and leaks of chemicals, petroleum products, and produced water will be restored. We support the use of the goals, objectives and management actions first developed in the Casper RMP and now refined through cooperative work between the Lander BLM and state specialists.
From discussions between state cooperating agencies and the BLM State Office, agreement was reached to include the following language in all revised RMPs for Wyoming. We did not find the agreed upon language in the Preliminary RMP document. As such, I am asking that it be specifically included. The agreed upon language is as follows:
Chapter 4 of the Pinedale RMP analyzes the impacts associated with each of the Alternatives considered. This analysis includes an estimate of the social and economic impacts that are anticipated as a result of the Alternatives considered. It may also provide a suitable starting point for local governments to use in local planning efforts.
Further, BLM anticipates that site specific implementation or project analysis will occur in accordance with governing law and regulations as the Pinedale RMP allocation decisions are implemented. This analysis process will provide an opportunity for the BLM, the State of Wyoming and the affected counties and communities to collaborate in disclosing the socio-economic impacts associated with the site specific action being analyzed.
The BLM Pinedale Field Office acknowledges that local plans may be developed by the impacted counties, municipalities or communities that attempt to address social and economic matters affecting them. This planning effort by local governments may address some or all of the social and governmental services within its purview, and may contain the detailed budgetary requirements necessary to carry the plan forward.
Viewsheds and Visual Impacts to Historical and Cultural Resources
The RMP does not clearly address how the BLM intends to deal with the potential impacts of large scale projects such as wind farms and power transmission line corridors to the viewshed settings of historicproperties (especially the National Historic Trails). The Pinedale RMP needs to include a discussion of the potential for such impacts and if any special management considerations will be available for historic and cultural resources.
Off Highway Vehicle (OHV) Use
Because the federal BLM OHV rules have changed since the Preliminary FEIS was distributed to cooperators for review, the specifics regarding OHV use in the Pinedale Resource Area need to be published for review and comment by cooperators.
As I have stated, I believe a revised Pinedale RMP Draft EIS needs to be written and noticed for public comment. A revised Draft EIS must clearly state whether the underlying analytical foundation is performance based or prescription based. If the approach is performance based, performance objectives need to be clearly defined along with appropriate monitoring strategies, mitigation thresholds and mitigation actions. If a prescriptive approach is in fact chosen, the revised Draft EIS must clearly identify in much more detail not only performance objectives but also more` carefully forecasted impacts and more specific management actions to address the forecasted impacts. This will need to be done for each alternative. Monitoring will also need to be addressed and stringent management actions identified if impact thresholds are breached. State and local cooperators need to be invited and offered every opportunity to participate throughout the process, especially to the extent state and local governments have jurisdiction over affected resources.
If a comprehensive revised Draft EIS document is published for public review and comment, we will have several more opportunities to collaboratively address any and all remaining cooperator concerns and issues in order to either resolve them, or at a minimum, create mutual understanding of the rationales for divergent positions. I ask that every effort be made by the Pinedale and State BLM staff to include cooperators in direct and collaborative discussions to that end.
I appreciate the opportunity to submit comments and look forward to constructive dialogue and at some point a workable Record of Decision approving the Revised Pinedale RMP.