Governor: 'Sawed off mountain tops' in Wyoming Range Plan
by Governor Freudenthal media release
April 28, 2008
Gov. Dave Freudenthal reiterated his concern over the U.S. Forest Service's plan to reactivate drilling leases in the Wyoming Range, saying the proposal would ultimately lead to "sawed off mountain tops and relatively vast expanses of impacted crucial habitat."
In addition to his concerns over impacts to wildlife, fisheries, air and water quality, the Governor repeated "how strange a decision" it was by the Forest Service to allow an oil and gas company, Stanley Energy, through a memorandum of understanding (MOU), to pay for a leasing Supplemental Environmental Impact Statement for 44,720 acres in the Big Piney Ranger District of the Bridger-Teton National Forest.
The Governor first raised his concern about the MOU in a letter to Intermountain Regional Forester Harv Forsgren on April 21.
In his formal comments delivered to Bridger-Teton Supervisor Kniffy Hamilton on the plan to lift the suspension of the leases, he reiterated his apprehension.
"A pall of controversy hangs over this leasing SEIS because Stanley Energy (an interested stakeholder relative to a portion of these leases) has underwritten the analysis and is still operating under the suspicious MOU with the Forest Service, Freudenthal wrote. "Public trust in this SEIS has eroded to a point where I do not believe it is possible to continue unless all vestiges of the current process are erased."
It is, at the least, highly unusual for a federal agency to allow an interested party to pay for a leasing-level analysis, the Governor wrote.
The Bridger-Teton is required to take public comment as part of its analysis under the National Environmental Policy Act. The public comment period ends Monday, April 28.
The federal government in 2005 and 2006 had sold and issued leases for the acreage in question. However, an appeal to the Interior Board of Land Appeals resulted in a moratorium on the leases because the decision to issue the leases was based on inadequate or outdated NEPA analysis. The matter was remanded back to the Forest Service and the U.S. Bureau of Land Management for resolution.
The Governor added that the timeline for the project is far too aggressive given the importance of the area to hunters, anglers and the many others who hike, camp and make a living in the Wyoming Range. Freudenthal also said it would be much easier to offer more informative comments if the Forest Service waited until it could supply a reasonably Foreseeable Development (RFD) scenario, which is a long-term projection of oil and gas exploration, development, production and reclamation activity.
"Absent an RFD, I can only assume extensive impacts to these acres, especially considering Stanley Energy's prior suggestion that it might drill 200 wells from eight, 50-acre well pads: a literally mountain-moving proposal," he wrote.
The Governor highlighted specific wildlife concerns, including potential impacts on elk and moose crucial habitats, mule deer and pronghorn seasonal habitats, and big game migration corridors. Other areas of concern are water and air quality, erosion, effect on fisheries, and the impact to sensitive species such as sage grouse.
The complete text of both letters follows:
April 25, 2008
Kniffy Hamilton
Forest Supervisor
Bridger-Teton National Forest
P.O. Box 1888
Jackson, WY 83001
Dear Kniffy:
Thank you for the opportunity to supply scoping comments relatedto the proposed leasing Supplemental Environmental Impact Statement (SEIS) for the 44,720 acres in the Big Piney Ranger District on the Bridger-Teton National Forest. Public trust in this SEIS has eroded to a point where I do not believe it is possible to continue unless all vestiges of the current process are erased. In order to preserve the state of Wyoming's legal standing, however, I will abide by the existing timeline and register my strong opposition to the Proposed Action to lift the suspension on the December 2005 and April 2006 leases and to issue those that were sold but not issued from the June and August 2006 lease sales.
As an initial matter, I would like to restate just how strange a decision it was by the Forest Service to allow an oil and gas company to pay for a leasing SEIS. Despite a claim in the press by the Forest Service that it is "not uncommon for proponents to pay" the record suggests that it is at least highly unusual for a federal agency to allow an interested party to pay for leasing-level analysis. It is common - and arguably quite appropriate - for proponents to pay for project-level analysis like the Noble Basin EIS, Jonah EIS and Pinedale Anticline SEIS. But on the Thunder Basin National Grasslands, for instance, the Forest Service addressed leasing questions by paying for a Forest Plan amendment. Timber sales are handled in much the same way when the Forest Service pays for the analysis that determines whether certain timber stands are appropriate for harvest. Although a different agency, the BLM, which apparently holds itself to much higher standards, offers numerous examples that would counter the Forest Service's claim. In 2003, the BLM switched from proponent to public funding between a Draft Environmental Impact Statement (DEIS) and a Final Environmental Impact Statement (FEIS) for the Powder River Basin Gas Field Development when the Proposed Action went from project proposal to plan amendment. Perhaps the shift occurred because the BLM has learned from experience not to hazard a Federal Advisory Committee Act (FACA) violation.
While the Forest Service has said that Stanley Energy has a "vested interest in assuring a timely analysis," surely your agency recognizes that this is not an interest recognized by law. A quick read of the Interior Board of Land Appeals ruling, which triggered this SEIS, underscores that the Forest Service retains wide latitude relative to this block of leases - including the authority to cancel them outright and return the companies' money. Thus, to "vest" Stanley with any interest seems to pre-decide the outcome of the analysis. I would hope that the Forest Service would, at some point, begin to uphold the public interest and not singly concern itself with some interest it apparently perceives for an oil and gas company.
I would also note that the timeline is far too aggressive given the importance of this area to hunters, anglers and the many others that hike, camp and make a living in the Wyoming Range. This is especially true in light of the recent events surrounding the MOU. Further, it would be much easier to offer more informative comments if the Forest Service would wait until it could supply a Reasonably Foreseeable Development (RFD) scenario. Absent an RFD, I can only assume extensive impacts to these acres, especially considering Stanley Energy's prior suggestion that it might drill 200 wells from eight, 50-acre well pads: a literally mountain-moving proposal.
Wildlife
The Wyoming Game and Fish Department (Department) will be providing detailed comments related to aquatic and terrestrial species that must be fully considered as the Forest Service weighs the question of issuing these leases. I would specifically highlight the Department's concerns about potential impacts on elk and moose crucial habitats, mule deer and pronghorn seasonal habitats, and big game migration corridors. The Wyoming Range is of pivotal importance to elk, mule deer, pronghorn and moose and, as I noted in my comments on the Eagle Prospect and Noble Basin Master Development Plan, it is an extremely important area to people from all walks of life from all over Wyoming. At the end of the day, the Forest Service must carefully examine whether it wants to issue leases that will ultimately lead to sawed off mountain tops and relatively vast expanses of impacted crucial habitat in order to accommodate 50-acre well pads.
Specific Issues to Address - Big Game
- Migration corridors
- Erosion
- Invasive weeds
- Water quality
- Reclamation
- Mitigation
- Monitoring
- Drought
- Air quality
- Feedground operations
- Pipelines and other liquids gathering facilities
- Transmission lines
- Drilling operations (timing, duration, facilities, surface disturbance)
- Production operations (timing, duration, facilities, surface disturbance)
- Road development
- Road maintenance
- Pad construction and development
- Transportation planning
- Winter access to project area
- Cumulative effects from other oil and gas development
- Cumulative effects from other development
- Lease stipulations to protect big game herds
The Forest Service must also fully analyze whether leasing is appropriate given the proximity of some of the most prized river and stream segments in Wyoming. The North Horse Creek, the Hoback River and its tributaries are important to many fish species - including the Snake River and Colorado River cutthroat trout. From potential concerns related to erosion and invasive weeds to air quality, surface water quality, ground water quality and the potential to affect the amount of water that is available to these fisheries, the Forest Service must weigh many issues and proceed with great care. Should the Forest Service determine that it will not authorize the removal of mountaintops for 50-acre well pads, it will have to analyze the effects of literally paving over the area's riparian bottomlands to accommodate such development.
Specific Issues to Address - Fisheries
- Invasive weeds
- Water quality (surface and ground water)
- Water quantity (including interconnectedness of surface and ground water and other existing uses in the area)
- Erosion and sedimentation (from roads and drilling and
production facilities)
- Air quality
- Reclamation
- Mitigation
- Monitoring
- Drought
- Pipelines and other liquids gathering facilities
- Drilling operations (timing, duration, facilities, surface disturbance)
- Production operations (timing, duration, facilities, surface disturbance)
- Road development
- Road maintenance
- Pad construction and development
- Stream channel integrity
- Transportation planning
- Cumulative effects from other oil and gas development
- Lease stipulations to protect fisheries
In addition to the impact of the project on big game herds and fisheries, the Forest Service must ensure that the potential impacts to those species listed on its own sensitive species list and the Department's list of Species of Greatest Conservation Need are fully addressed. For my part, in the state's 2009-2010 budget, I have proposed millions of dollars to study and protect sensitive species, including sage grouse. This investment will be for naught if individual projects fail to account for and mitigate the full range of impacts to sensitive species. As the Forest Service proceeds in its evaluation, we will all be well served by an extremely cautious tack relative to the sensitive species that are found in the area - especially since the sword of the Endangered Species Act hangs perilously over our heads. As noted in the Forest Service's own scoping document, habitat for the federally listed Canada lynx would likely be impacted by future development on these acres.
Specific Issues to Address - Sensitive Species
- Invasive weeds
- Water quality (surface and ground water)
- Water quantity (including interconnectedness of surface and ground water and other existing uses in the area)
- Erosion and sedimentation (from roads and drilling and
production facilities)
- Air quality
- Reclamation
- Mitigation
- Monitoring
- Pipelines and other liquids gathering facilities
- Drilling operations (timing, duration, facilities, surface disturbance)
- Production operations (timing, duration, facilities, surface disturbance)
- Road development
- Road maintenance
- Pad construction and development
- Transportation planning
- Winter access to project area
- Transmission lines
- Cumulative effects from other oil and gas development
- Cumulative effects from other development
- Migration corridors
- Drought
- Lease stipulations to protect sensitive species
Air Quality
As with Department's comments related to wildlife, the Wyoming Department of Environmental Quality, Air Quality Division will furnish detailed comments related to air quality. I would draw special attention to the importance of a complete emissions inventory to the process as it moves forward. I would strongly suggest close coordination with the Air Quality Division - not only in the development of the emissions inventory, but also to address to the Division's other cited concerns.
Specific Issues to Address - Air Quality
- Emissions inventory (fracing, flaring, transportation sources, pneumatic pumps, drilling emissions, etc.)
- Ozone
- Transportation
- Cumulative effects from other oil and gas development
- Cumulative effects from other development
- Visibility
- Monitoring
- Mitigation
- Reclamation
Water
It need not be repeated that water is an extremely important resource in our state. The indispensability of adequate, clean supplies of water for domestic, agricultural, wildlife, municipal and industrial use cannot be overstated. The availability of water for drilling, production and rehabilitation operations is a fundamental consideration to any leasing or future development. Unfortunately, the experience of domestic users in the area indicates that water is a scarce commodity. The additional pressures on this finite resource brought on by yet another potential energy project must be fully understood, including the impacts to residential ground and surface water users in the area.
Beyond the question of quantity, the state's experience in the Clark area and in the vicinity of the Pinedale Anticline indicate that water quality and the potential for ground and surface water contamination are of great concern and only exacerbate concerns related to water availability. From leaking disposal pits to spills and other contamination, the Forest Service must examine these leases and future development in light of water quality.
Specific Issues to Address - Water
- Erosion
- Water quality (surface and ground water)
- Water quantity (including interconnectedness of surface and ground water and other existing uses in the area)
- Potential for interference with existing uses in the area
- Immediate availability of adequate water supplies in case of emergency (fire, lost circulation)
- Reclamation
- Mitigation
- Monitoring
- Drought
- Drilling operations (timing, duration, facilities, surface disturbance)
- Production operations (timing, duration, facilities, surface disturbance)
- Road development
- Road maintenance
- Transportation planning
- Cumulative effects from other oil and gas development
- Cumulative effects from other development
Socio-economics
The Forest Service should fully understand the socio-economic impacts that could follow with leasing and development in its analysis and, in conjunction with affected cities, towns and counties and the state account for how they will be mitigated if this area is leased and developed.
Specific Issues to Address - Socio-economics
- Impacts to state and county roads
- Impacts to tourism economy
- Impacts to agricultural economy
- Impacts to other economic drivers in the region
- Impacts to local services (health and other human services)
- Impacts to emergency service providers (fire, ambulance, etc.,
to serve remote project location
- Transportation planning
- Cumulative effects from other oil and gas development
- Cumulative effects from other development
- Reclamation
- Mitigation
- Transmission lines
Conclusion
As I underscored in my April 21st letter, a copy of which is attached for entry into the formal record, a pall of controversy hangs over this leasing SEIS because Stanley Energy (an interested stakeholder relative to a portion of these leases) has underwritten the analysis and is still operating under the suspicious MOU with the Forest Service. I reiterate my call for the Forest Service to terminate the MOU and proceed on its own dime, through the ongoing Forest Plan revision, to decide the ultimate fate of these contested leases. While I will remain convinced that this area of the Wyoming Range is inappropriate for leasing and development for oil and gas - a point apparently not shared by the Forest Service - I am willing to have the issue resolved through the NEPA process - but only if the process is fair and open and my comments are not subject to the "input" of Stanley.
Best regards,
Dave Freudenthal
Governor
Attachment
c: Harv Forsgren, Intermountain Regional Forester
Barry Burkhart, Assistant Director, Minerals and Geology, U.S.
Forest Service
Don Simpson, Acting State Director, Wyoming Bureau of Land
Management
Senator Mike Enzi
Senator John Barrasso
Representative Barbara Cubin
-------------------
April 21, 2008
Mr. Harv Forsgren
Regional Forester
U.S. Forest Service, Intermountain Region
324 25th Street
Ogden, UT 84401
Dear Mr. Forsgren:
As you may know, representatives from my office were invited to participate in a meeting and two conference calls regarding the leasing Supplemental Environmental Impact Statement (SEIS) for the 44,720 acres in the Big Piney Ranger District on the Bridger-Teton National Forest. They joined these conversations despite the odd decision by the Bridger-Teton National Forest to allow an interested stakeholder relative to a portion of these leases, Stanley Energy, and its attorneys to host the first meeting at Holland & Hart's Cheyenne Office and direct much of the conversation during the subsequent phone calls. After reviewing the apparent Memorandum of Understanding (MOU) between Stanley and the Forest Service, the peculiar has now become extremely suspect, and I now have serious doubts as to whether the state of Wyoming can continue to participate in what appears to be a compromised leasing SEIS.
In our experience, it is not unusual for leaseholders to pay for project-level analysis. Regularly, the state plays an active role in NEPA planning documents that are funded by oil and gas companies. In those instances, the question is not whether leasing should be authorized, but instead how development should proceed. While Stanley is the recognized 'high bidder' for some of the leases in question, leasing has yet to be authorized - thus the need for an SEIS. Given the fact that the Interior Board of Land Appeals expressly stated that the Forest Service had full authority, through the SEIS, to cancel any part or all of the leases in question, Stanley should not be allowed to guide and fund the NEPA process to determine the fate of this very sensitive and closely watched block of leases in the Wyoming Range. Given the Proposed Action to lift the current suspension on the December 2005 and April 2006 leases and to issue those that were sold but not issued from the June and August 2006 sales, it could be suggested that Stanley has purchased a favorable outcome. This appearance of impropriety is magnified by the fact that the SEIS is governed by an MOU between Stanley and the Forest Service that potentially gives Stanley questionable consultative access.
For example, the MOU states that the "analysis will be prepared by a Prime Consultant, hired from a list of U.S. Forest Service approved contractors and paid for by Stanley." (FS 08-MU-11040300-005, Sec. C, Item 1) It later commits the Forest Service to "consider the views of Stanley in choosing the Prime Consultant." (Sec. D, Item 2) The MOU also declares that "the U.S. Forest Service and the Prime Consultant will make every effort to meet a time schedule mutually agreed upon in writing by Stanley and the U.S. Forest Service." (Sec. C, Item 2) While the final selection is "subject to review and written acceptance by the U.S. Forest Service," Stanley is given authority to "select a Prime Consultant from the U.S. Forest Service list of qualified contractors for the completion of the analysis on the Project." (Sec. E, Item 2) In what seems a flagrant violation of the open and collaborative spirit of NEPA, the MOU states that "oral and written communication among ID team members are protected from disclosure to preserve the integrity of the deliberative process." (Sec. F, Item 4) In my mind, the integrity of a deliberative process is best safeguarded by transparency rather than secrecy.
Going further, the MOU requires the Forest Service to meet with Stanley to discuss the project description to determine what mitigation measures might be required, even though leasing traditionally does not require mitigation - unless the MOU presupposes a different type of "project." (Sec. D, Item 17) Also, the MOU forces the Forest Service to consider any "Stanley-proposed alternative," which is unusual given that Stanley is but one company in a block of other "high bidders." (Sec. D, Item 18) The MOU then directs the Forest Service to "be responsible for the public review of the analysis, public hearings, analysis of public comments, distribution of the documents, within established time frames, with input as required from Stanley." (Sec. D, Item 19, emphasis added) This would offer Stanley the chance to review public comments and even provide input on those public comments, especially since the next provision gives Stanley the authority to determine modifications of the text "as a result of public comments with input from Stanley." Finally, Item 20 of Section D of the MOU would obligate the Forest Service to "accept and utilize information" submitted by Stanley. In other words, the Forest Service has not only provided undue access through the MOU - it has opened the door for Stanley to dictate the details and the outcome.
I was recently informed that the Forest Service, after hearing strong concerns from the BLM and others, has decided to change the current arrangement to prevent Stanley and its attorneys from participating in the bi-monthly project meetings and phone calls. This gesture implicitly acknowledges that Stanley's participation to date has been suspect. I do not think that this will be enough to revive a tainted process, however, especially as long as Stanley is paying for the analysis, and the underlying MOU remains in place. Stanley and its attorneys may have gone belowdecks, but this still looks like a ship built with their timber.
My opposition to energy development on the 44,720 Bridger-Teton National Forest acres is well known, but my objections to this leasing SEIS are rooted in a concern for good governance. While there can be reasonable disagreement on the ultimate question of energy development in the Wyoming Range, I think the decisional process has to be as fair and open as possible. It is little wonder that I am not the first to express grave concerns about Stanley's involvement. Even if the Bridger-Teton National Forest would like this leasing SEIS to continue, I do not think it is wise or practical to do so. I urge you to halt this SEIS and either address the leasing question in a forest plan amendment, or restart the leasing SEIS as a public process underwritten by the Forest Service.
As I emphasized during my February testimony before the U.S. Senate Subcommittee on Public Lands and Forests, development of the Wyoming Range is too pivotal an issue - from the standpoint of recreation, air quality and wildlife, including such sensitive and threatened species as the cutthroat trout and Canada lynx - to address in a hurried fashion. Stanley Energy has suggested that it might drill 200 wells from eight, 50-acre well pads in the area, even while the Bridger-Teton National Forest is in the process of a forest plan revision and will be analyzing whether new leasing is appropriate on the forest in light of the extensive development occurring on nearby BLM lands. Surely the Forest Service should approach the leasing decision in a plan revision and wait to see the outcome of the Wyoming Range legislation. As it currently stands, scoping comments on the leasing SEIS are due later this week, even though the Forest Service has not released a Reasonably Foreseeable Development scenario (RFD). The need to slow down and exercise caution is absolutely critical now that a cloud of controversy hangs heavily over the leasing SEIS.
Best regards,
Dave Freudenthal
Governor
DF:pjb
c: Carol "Kniffy" Hamilton, Supervisor, Bridger-Teton National Forest
Barry Burkhart, Assistant Director, Minerals and Geology, U.S. Forest Service
Don Simpson, Acting State Director, Wyoming Bureau of Land
Management
Senator Mike Enzi
Senator John Barrasso
Representative Barbara Cubin
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