Numerous protests filed over water, oil and gas, and other issues
Officials with the San Juan National Forest and BLM Tres Rios Field Office are hoping to have their sweeping new management plan in place by spring of this year, depending on the outcome of protests filed over different issues ranging from water matters to oil and gas leasing to how lands were analyzed for wilderness characteristics.
Montezuma, Dolores, San Miguel and La Plata counties all have filed appeals (to the Forest Service) or protests (to the BLM) over aspects of the plan, as have the Dolores Water Conservancy District and Southwestern Water Conservation District, the Colorado Department of Natural Resources, and the Colorado Water Congress.
And a slew of environmental nonprofits filed challenges as well.
The appeals and protests are to be analyzed by the agencies’ Washington, D.C., offices. Local offices help by providing information if needed.
“It will be mid-February when the protest response letters will be signed by the director of the BLM,” said Tres Rios Field Office Manager Connie Clementson. “Once those response letters are signed off on, we would modify the record of decision as needed.”
While many members of the general public – even those who visit area forest and BLM lands – may not ever read any part of the voluminous plan, its accompanying environmental impact statement, or its long appendices, it will have an effect on many aspects of where and how they interact with the 2.4 million acres managed by the San Juan National Forest and the Tres Rios Field Office.
“It gives us this over-arching direction for the next 20 years for land managers to provide that work on the ground. That’s why it’s an important document,” Clementson said.
When the planning process began in the early 2000s, the local BLM and Forest Service offices were combining many of their functions under an arrangement known as Service First. They have since ceased most of those joint operations, but the plan remains a joint effort.
“We did a joint plan, which is beneficial because we analyze the entire landscape together,” Clementson said.
“It’s quite different from the typical planning process,” said Mark Lambert, staff officer for planning and public service with the San Juan National Forest. He was project manager for the team that put the plan together.
“The main difference is this is a joint plan, so one of the principal things we tried to do is have more of a landscape view of planning,” Lambert said. “Every management decision or strategy that we propose, we took the larger landscape into account. This helped us be more comprehensive, which is a better strategy than looking at things with a microscopic view.”
But because two different agencies are involved, there were separate processes and timelines for appealing the plan. The BLM’s protest period ended in November, while the Forest Service appeal process ended on Dec. 19.
Clementson said she is “very proud of the plan and what we have in there and I think it provides us very good direction for the next planning period.”
Clementson said she is hoping the record of decision for the plan can be issued in early 2014, but it may be delayed because the BLM is confirming a new national director. In addition, clarifications or changes may need to be made as a result of the protests, or there may even be a need to amend the plan.
“It depends on if the change is substantive or not,” she said. “It may be as easy as saying something in the final record of decision, or it may be that the Washington office says the field office has to do additional analysis.”
Similarly, the Forest Service’s appeals are handled by its national office, which will decide if minor or more-substantive work needs to be done to the final product.
Creating the land and resource management plan has been a monumental task. The draft version was released in 2007, but its finalization was delayed because officials decided to add a new section on oil and gas development, believing that their information was outdated. The current version of the plan was released in September 2013. It will replace plans created separately in 1983 and 1985 for national-forest and BLM lands. Lambert said one change the public may actually notice as a result of the new plan is increased oil and gas leasing and development. “We basically had kind of a moratorium on leasing on the forest since around 2001 or so, and now that we’re done with our analysis, we’re basically back in business,” Lambert said. “So the public could see more leasing and subsequent development, but that is totally dependent on how fast industry wants to move, which is so hard to predict.”
Two dozen protests were filed on the BLM side, according to Clementson. Lambert said 11 appeals were filed with the Forest Service. Oil and gas development is one of the main issues that triggered complaints.
“Most of the issues that are brought forward take some thought and digging to figure out how to resolve them,” Lambert said. “The typical issues are not brand new – we have heard them before.”
Only people or groups who previously gave comments on the draft have standing to file appeals or protests.
The agencies make the protests/appeals public only after the responses to them have been written; however, many of the parties involved provided their documents to the Free Press.
The diversity and depth of the comments illustrate the complexity of the planning issues the agencies must handle. Here are just a few of the issues that were appealed or protested:
The DWCD, along with Montezuma and Dolores counties, protested the number of native fish species that were designated as “outstandingly remarkable values” on the Dolores River in the final plan. While the issue may seem arcane, it is highly significant, according to an Oct. 10 protest letter signed by Mike Preston, general manager of the DWCD.
The draft management plan issued in 2007 listed just one native fish, the roundtail chub, as an ORV on the Dolores River from McPhee Dam to Bedrock, Colo. The final plan, however, added two more native species as ORVs: the flannelmouth sucker and bluehead sucker.
“The naming of these two additional native fish has the potential to put at risk Dolores Project water supplies and contracts. . .,” states the DWCD’s protest letter to the BLM director in Washington, D.C. Outstandingly remarkable values are named on stretches of river that have been proposed for protected status under the Wild and Scenic Rivers Act. The Dolores from McPhee to Bedrock was found by the public-lands agencies as “suitable” to become a wild and scenic river; however, such a designation can only be made by Congress or the Interior secretary.
But rivers that are found “suitable” for wild and scenic designation must be managed to protect their values, and the DWCD is concerned that protecting the two sucker species could require more water and more effort than protecting the roundtail chub.
The DWCD’s objection to naming the additional fish as ORVs is based on the fact that the roundtail chub is faring better than the two sucker species on the Dolores between McPhee and its confluence with the San Miguel River, whereas the suckers are relatively more plentiful downstream from the San Miguel.
All three species are declining in much of their historic range.
In an appendix to the management plan regarding wild and scenic rivers, agency officials wrote that the flannelmouth and bluehead suckers were added as ORVs based on comments received regarding the draft plan that said they should all be considered together, since the three species are the subject of a 2006 range-wide conservation agreement signed by six state wildlife agencies. Biologists say the three species tend to occur together.
But in its protest letter, the DWCD criticized the sudden addition of the two species, particularly in light of the fact that the Dolores River Dialogue, a local grassroots group, had created several sub-groups to work collaboratively on finding alternatives to wild and scenic river designation and improve the status of the native fish.
The DWCD letter called the BLM’s addition of the two species “potentially divisive” and said it showed “disrespect and disregard for the depth of the multi-party collaborative effort. . .”
The Montezuma County commissioners echoed the DWCD’s concern in their Oct. 10 protest letter to the BLM, writing, “The decision by the BLM Line officers to include the Flannelmouth and Bluehead suckers as ORVs is purely a ‘backdoor run’ to force more water out of McPhee Reservoir.” The commissioners also protested the finding that the Dolores River was “suitable” for wild and scenic designation.
“The WSR is intended to be used when no other conservation strategy is being considered to ensure protections of ORVs,” states the letter, signed by all three county commissioners. “In this case a valid conservation strategy is being developed with broad collaborative participation by stakeholders.”
Oil and gas
A coalition of conservation groups including the Western Environmental Law Center, Durango-based San Juan Citizens Alliance, Natural Resources Defense Council, National Parks Conservation Association, Earthworks, The Wilderness Society, Rocky Mountain Wild, and Sheep Mountain Alliance – along with the San Miguel County Commission – filed a highly technical, 73- page protest related to concerns about the plan’s consideration of oil and gas development and its impacts on air and water quality as well as climate change.
The groups said the plan “failed to take a hard look at the direct, indirect and cumulative impacts of oil and gas development” and voiced concern about the effects on air quality if an additional 2,900 wells are drilled on San Juan Public Lands in the next 15 years, as the plan’s section on oil and gas foresees.
The protest notes that there are six Class I areas in or near the San Juan Public Lands – areas designated by the Environmental Protection Agency as deserving special air-quality protection to maintain visibility. Those areas include Mesa Verde and Canyonlands national parks and the Weminuche Wilderness.
However, the plan fails to “fully and accurately evaluate the air quality impacts from the proposed development and does not include adequate enforceable mitigation measures to assure no adverse impacts on air quality will occur in the affected area,” the conservation groups wrote. They said that while the agencies “have taken a pioneering step forward” by including air-quality mitigation measures in the plan, “such measures do not go far enough.”
In addition, there were concerns about protecting water quality, according to Jimbo Buickerood, public-lands coordinator for the San Juan Citizens Alliance.
He said the groups want to make sure the agencies require the industry to utilize best management practices regarding the handling of well bores, casings, liquids, naturally occurring radioactive materials, and other items related to energy development.
Buickerood said the plan and the new section on oil and gas contain much that is good, “but there are some other places they fell a bit short of what they could do.”
The conservation groups stated that the agencies – despite writing a separate appendix on a management strategy for climate change – did not offer adequate steps to deal with it. The appendix states that the average temperature in Southwest Colorado shows a warming trend of about 2 degrees Fahrenheit over the past 30 years, and more warming is predicted. It identifies a number of effects from the warming, including sudden aspen decline, piñon-pine die-offs, earlier snowmelt, and increased incidence of wildfire.
Despite that, the groups said, “the agencies back away from taking serious action to address impacts.” They argued that the plan underestimates the amount of greenhouse gases that would be released by the expected oil and gas development.
“BLM not only has the authority, but an obligation to address GHG emissions and methane waste,” the protest states. “Furthermore, the agencies must consider not only the cumulative impact of the GHG emissions authorized by the revised LRMP, it must also consider those emissions combined with other activity in the area.”
The groups called for “meaningful stipulations” to be attached to oil and gas leases, such as measures for better capturing methane emissions.
They also said the plan fails to adequately consider the impacts of oil and gas development – particularly hydraulic fracturing – on water resources and watersheds.
Wilderness and other land issues
Buickerood said a second protest filed by the environmental groups (but not including San Miguel County this time) involved primarily issues such as lands with wilderness characteristics, inventorying of roads and trails, and areas of critical environmental concern.
“For example, the agencies had never to our understanding and our looking at the situation completed their road inventory,” he said. “When you don’t have one, it’s difficult to assess lands with wilderness characteristics. For lands that are roadless, not surprisingly the boundaries are roads. We thought they’d done some of the work but they hadn’t. When you looked on the ground, it didn’t really match up, so we were really disappointed on this.”
The groups say the field office’s inventory of lands with wilderness characteristics didn’t comply with federal regulations. Inventories are supposed to identify areas that have no roads and that are larger than 5,000 acres (they can be smaller if they are adjacent to existing wilderness study areas). The inventory found a total of 20 units amounting to 109,484 acres.
However, the analysis was flawed because it relied on outdated road data and included roads that wouldn’t qualify as such under current rules, according to the protest.
The plan states that “most of the roads, primitive roads and trails located on BLM lands within the [field office] have not yet been fully inventoried or mapped,” the groups wrote. “The Tres Rios Field Office contains thousands of miles of roads and trails, many of which are relics of historic mining activity or other antiquated uses. Many of these historic routes are no longer being maintained and are largely reclaimed either naturally or through active reclamation. These reclaimed routes do not meet the definition of wilderness inventory roads. . . and as such should not be considered as boundaries to potential LWC [lands with wilderness characteristics] units nor as impacts on the wilderness characteristic of ‘apparent naturalness’” without on-the-ground investigation, they wrote.
“Because the TRFO road layer (GIS cataloged roads) includes countless roads that do not meet the definition of wilderness inventory roads, the initial GIS analysis excluded many areas from further detailed investigation that may appear ‘roaded’ by GIS, but in reality are either unroaded or include antiquated or relic roads that do not meet the criteria for wilderness inventory roads” as defined by the BLM, they wrote.
Another issue protested by the environmental groups involves areas of critical environmental concern, known as “ACECs” in the alphabet soup of acronyms used by the federal-land agencies. ACECs are areas where special management is required to protect “important historic, cultural, or scenic values, fish and wildlife resources, or other natural systems or processes,” according to the Federal Land Policy and Management Act of 1976.
The draft plan back in 2007 evaluated 22 areas as potential ACECs and found 11 areas met the criteria, but of those 11 areas, only four were evaluated for designation in the range of alternatives for the draft plan, the protest states.
“This clearly does not comply” with federal regulations, the protest states, because the agency is supposed “to fully consider for designation all areas that meet the relevance and importance criteria.” In addition, many of the areas found not to meet the criteria for ACECs were disqualified arbitrarily, the groups said.
“ACEC issues have been going on a long time because the agency never did enough work a long time ago to bring forward into the final plan many of the ACECs that had been nominated, some by ourselves and Rocky Mountain Wild,” Buickerood said. “We had this huge piece that was supposed to be in the plan and they never got the work done.
“They could say they’ll do it in a plan amendment, but looking at BLM’s track record in Farmington and here, unless there’s a hard timeline, we’re concerned it will never get done. We’re really interested in when they’re going to finish assessing ACECs as required by law.”
The protest also states that the agency failed to take a hard look at “direct, indirect and cumulative impacts” on the Gunnison sage grouse, a bird that has been proposed for endangered-species listing, that may occur as a result of management decisions made under the document.
In addition to the native-fish concern, a number of entities including the Southwestern Water Conservation District, DWCD, state Department of Natural Resources, and Colorado Water Congress protested or appealed a provision in the plan calling for “minimum flow rates” to support habitat in streams “where native or desired non-native fish species occur, or should occur.”
They said this represented a major change from the draft plan, which had called for setting minimum flow rates only if solutions could not be found through collaborative efforts.
Even Colorado Gov. John Hickenlooper weighed in on the matter. In a comment letter to the acting state director of the BLM, John Mehlhoff, Hickenlooper stated that sections of the final plan identifying standards for minimum stream flow and minimum reservoir levels “appear to be inconsistent with and contradictory to fundamental tenets of state water law” as well as a 2011 memorandum of understanding between the BLM and the Department of Natural Resources.
“The final [plan] includes non-discretionary ‘standards’ for ‘minimum flow rates’ to support habitat in streams where native or desired non-native fish species occur, ‘or should occur.’ The [plan’s] establishment of non-discretionary standards may conflict with Colorado’s system of prior appropriation, as well as the State’s laws governing the establishment of minimum instream flows,” Hickenlooper wrote.
In an appeal to the Forest Service, Mike King, executive director of the Department of Natural Resources, echoed Hickenlooper’s concerns and said the state “recommends that the USFS remove the [plan] provisions that establish standards for minimum stream flow and minimum reservoir levels” and work with the Colorado Water Conservation Board “to address any of USFS’s minimum stream flow needs.”
King said the state also recommends that the agency change the flow requirements from mandatory “standards” to “guidelines,” the term used in the draft plan.
In an appeal filed with the Forest Service, the DWCD called for an additional comment period on some of the water-related provisions of the plan, stating, “. . .the Plan includes significant revisions to the most controversial provisions governing water resources with almost no explanation of those changes and limited, non-substantive responses to comments. . . a ‘minimum flow’ guideline was changed to a standard with no explanation, concerns about requiring a ‘minimum flow’ under any guise were not seriously addressed, and ORVs were added to Wild and Scenic River suitability determinations with no genuine analysis or justification. The revisions to water resource revisions contravened the recommendations of local and state governmental entities and the Agencies’ own Roundtable.”
The revisions will have a significant impact on non-federal lands “by unlawfully restricting the exercise of water rights pursuant to state law and effectively prohibiting the development of new water projects on adjacent federal land,” the DWCD wrote. “Yet, there was no opportunity to comment on these final provisions.”
The Colorado Water Congress, which represents water interests in the state, wrote in its appeal that, “The bypass flow standard and minimum pool guideline would unilaterally undermine Colorado’s primacy over the allocation of water and are inconsistent” with various federal laws.
Once the various appeals and protests have been considered by the agencies’ Washington offices, they will decide how to respond to them and whether they necessitate any changes to the plan. Major changes might require more analysis and even amendments to the plan.
If protesters do not like the agencies’ response, they have no recourse other than to try to fight it in court.