Comments on the Department of the Interior s Request for Public Input on Regulatory Reform

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1 September 6, 2017 Via electronic mail and regulations.gov The Honorable Ryan Zinke Secretary of the Interior U.S. Department of the Interior 1849 C St., NW Washington, DC RE: Comments on the Department of the Interior s Request for Public Input on Regulatory Reform Dear Secretary Zinke: On behalf of our millions of members and supporters, the undersigned submit these comments in response to the Department of the Interior s (DOI) request for public input on its review of existing regulations pursuant to Executive Order 13777, Enforcing the Regulatory Reform Agenda. 1 We are committed to sound management of our shared national lands, which includes recognizing the values of some lands for conservation and recreation, while also continuing responsible energy development. We object to the demonstrably false premise that there is a need to alleviate unnecessary regulatory burdens placed on the American people by DOI and other Federal agencies. 2 In reality, such existing guidance and direction benefits the American people - saving lives, protecting clean air and water, providing places to enjoy and conserving resources, all while allowing for economic growth for local communities. It is critical that DOI continue to safeguard its regulatory process, including providing the public with opportunities to comment as these various reviews proceed and ensuring the public can provide meaningful input regarding management of public lands. Public lands managed by the Bureau of Land Management are subject to a multiple use mandate, which prohibits DOI from managing public lands primarily for energy development or in a manner that unduly or unnecessarily degrades other uses. 3 Instead, the multiple use mandate directs DOI to achieve a combination of balanced and diverse resource uses that considers the long-term needs of future generations. 4 Further, as co-equal, principal uses of public lands, outdoor recreation, fish and wildlife, grazing, logging and rights-of-way must receive the same consideration as energy development. 5 These mandates do not permit the prioritization of energy development over other uses of public lands, as the Administration has indicated it may do in a series of Executive Orders and Secretary s Orders. To the extent DOI revises any protections as 1 Regulatory Reform, 82 Fed. Reg. 28,429 (June 22, 2017). 2 Executive Order Enforcing the Regulatory Reform Agenda, February 24, U.S.C. 1732(a) 4 43 U.S.C. 1702(c) 5 43 U.S.C. 1702(l)

2 a result of the current regulatory review, it must act consistently with the directives that Congress has provided in land management statutes. 6 This letter focuses on several oil and gas leasing policies that are critical components of the existing regulatory framework and are working to resolve conflicts with oil and gas development to the benefit of industry, as well as our public lands, waters and wildlife while ensuring that the public and range of interested stakeholders, including local officials, ranchers and outdoor recreation businesses, have robust opportunities to fully participate in decisions concerning the management of our public lands. 7 We are supportive of responsible energy development on our public lands when that approach is supported by processes that ensure robust consideration of environmental impacts and allow for meaningful engagement by stakeholders and the public. These processes are consistent with the principles that have historically guided management of our nation s public lands and that are enshrined in the statutes DOI is charged with implementing, specifically the Federal Land Policy and Management Act of 1976 (FLPMA) and National Environmental Policy Act (NEPA). BLM Instruction Memorandum : Defusing Conflicts and Facilitating Local and Public Input We support the continued implementation of policies outlined in Instruction Memorandum (IM) , Oil and Gas Leasing Reform Land Use Planning and Lease Parcel Reviews. At a high level this Instruction Memorandum requires, consistent with BLM s multiple use mission, that oil and gas related land use decisions sustain the health and productivity of public lands for the use and enjoyment of present and future generations. It also rightfully recognizes that, in some cases, leasing of oil and gas resources may not be consistent with the protection of other important resources and values such as national parks and other specially designated areas and wilderness, wildlife, cultural and historic values. It affirmatively states that there is no presumed preference for oil and gas development over other uses. It also requires the BLM to consult and coordinate with other land and resource managers (federal and non-federal) and the public in making oil and gas leasing and development decisions. These policies are carried out through a variety of methods including, but not limited to, resource management plan (RMP) adequacy evaluations, Master Leasing Plans (MLPs), and a comprehensive lease parcel review process that is designed to satisfy BLM s NEPA-related obligations for public lands leasing. 1. RMP Adequacy 6 These concerns are set forth in greater detail in a July 20, 2017 letter filed in this docket by a broad and diverse coalition of conservation, public health, and environmental organizations, and we support those comments. 7 Instruction Memorandum , Oil and Gas Leasing Reform Land Use Planning and Lease Parcel Review; Instruction Memorandum , Oil and Gas Leasing Reform Master Leasing Plans; H Planning for Fluid Mineral Resources, Chapter V Master Leasing Plans; Instruction Memorandum , Implementation of Greater Sage-Grouse Resource Management Plan Revisions or Amendments Oil and Gas Leasing and Development Sequential Prioritization. 2

3 RMPs underlie all oil and gas leasing decisions. Consistent with IM and the BLM Land Use Planning Handbook 8, we encourage DOI to continue to conduct RMP effectiveness monitoring and periodic RMP evaluations to determine if existing management decisions related to oil and gas leasing and development adequately protect important resources considering changing circumstances, updated policies, and new information. Results of such reviews may require RMP maintenance, amendment, or revision with respect to oil and gas related decisions. Land use planning is foundational to the management of public lands 9 and it is incumbent upon the DOI to keep RMPs as up-to-date as possible to ensure the most effective management of our public resources. 2. Master Leasing Plans MLPs are a proven tool for resolving potential conflicts with oil and gas development; we are advocating for the continued use of this planning instrument. MLPs were initially established in IM then incorporated into BLM s Handbook on Planning for Fluid Mineral Resources. 10 Specifically, MLPs are beneficial in those geographic areas where there is demonstrated leasing interest by the oil and gas industry and potential for resource conflicts where a more focused look at RMP decisions pertaining to oil and gas leasing and post-leasing development would provide an opportunity for win-win outcomes for both resource protection and oil and gas development. The MLP establishes a guiding framework for the development of an area and provides a vision for how future oil and gas development will proceed. The process allows careful consideration of locations where leasing of oil and gas resources may not be consistent with the protection of other important resources and values. Proactively evaluating all anticipated development for a given geographic area also provides for collaborative consideration of creative approaches among stakeholders such as phased leasing, use of corridors, multiple use, joint infrastructure, and shared mitigation. While we recognize the required upfront investment for MLPs, because MLPs are conducted through an RMP amendment process and include NEPA analysis, they have the benefit of streamlining future oil and gas approvals and thus, are an efficient and cost-effective management tool. As an example, the Approved Moab MLP 11 now guides future leasing of oil, gas, and potash decisions on approximately 785,000 acres of public lands within Grand and San Juan Counties in Utah adjacent to Arches and Canyonlands National Parks. The major issues driving the planning process in Moab included recreational use and visual resources, as well as the importance of recreation and national park visitation to the local economy and how poorly planned oil and gas development could endanger vital sources of revenue for the local community. The two national parks and recreation opportunities on surrounding public lands attract about 2 million visitors annually who inject more than $200 million into the local economy. The Moab MLP process was a highly successful, multi-year collaborative effort that resulted in new land use plan decisions specific to oil, gas, and potash development. These decisions are already helping to advance responsible leasing, with over 80 percent of the area available for 8 BLM Land Use Planning Handbook, H , Section V U.S.C. 1712(a) 10 BLM Handbook, Planning for Fluid Mineral Resources, H , Chapter V. 11 Moab Master Leasing Plan, approved December 15,

4 development, while protecting the national parks and recreation opportunities on surrounding public lands that are so critical to the local economy. Stipulations were established for new leases in identified areas in the Approved MLP to mitigate impacts to resource values and uses including timing limitation (TL), controlled surface use (CSU), and no surface occupancy (NSO). The time restrictions, special operation constraints, and locations for NSO were developed through coordination with a broad group of stakeholders, including local officials, local businesses and a wide range of other stakeholders. In fact, because of the collaborative nature of the Moab MLP process, many of these stakeholders, including Grand County, the City of Moab and dozens of business owners, publicly endorsed the final plan adopted by BLM. There are also other finalized MLPs and ongoing MLP efforts in of Wyoming and Colorado where the BLM and stakeholders are working to resolve conflicts and advance responsible oil and gas leasing to protect hunting and fishing opportunities. The potential utility of this proactive planning tool is great. We strongly support DOI s continued use of MLPs for oil and gas leasing and development in those scenarios that warrant special attention. These focused planning efforts are taking place as stand-alone efforts and completed with an environmental assessment or could be integrated into larger RMP revisions in some cases if there are efficiencies to be gained in doing so. 3. Lease Parcel Review Process We further believe that DOI should continue to implement oil and gas lease parcel reviews consistent with the guidance in IM and as required by NEPA. See New Mexico ex rel. Richardson v. BLM, 565 F.3d 683, 718 (10th Cir. 2009) (requiring site-specific NEPA analysis for oil and gas leasing when impacts are foreseeable and cannot be entirely avoided). The process as outlined not only supports NEPA compliance, it is simply good government. The process requires the BLM to make informed decisions, in coordination with local, state and Federal partners, and provides transparency and accountability to the public. The importance of collecting existing information, determining plan conformance, reviewing program specific guidance, conducting site visits (as necessary), and coordinating with internal and external partners on shared landscapes (i.e., airsheds, viewsheds, watersheds) goes without saying. The process also calls for completion of NEPA compliance documentation that includes the opportunity for public involvement. These pre-lease sale efforts provide for the identification of potential issues and concerns ahead of lease protest and lease sale. Since BLM began recognizing that site-specific NEPA analysis is required for proposed leasing, and adopted the lease parcel review process, a wide range of stakeholders have taken advantage of the engagement opportunities, including counties, property owners, ranchers, sportsmen and business owners, to notify BLM of potential conflicts and the need for additional measures to address those conflicts. For example, just a few months ago, because of the information shared with the public and engagement opportunities provided by IM , several ranchers in northern Colorado were able to explain to BLM how a proposed lease sale, which included parcels on their ranch lands and adjacent public lands that they utilized, could affect their 4

5 operations. As a result, BLM was able to make adjustments to the sale that resolved the ranchers concerns. 12 Ensuring that the public is informed and the planning and NEPA process is open and transparent will not only create better outcomes but will reduce conflict in the end. It is incumbent on the DOI, both legally (under NEPA and FLPMA) and as steward of our public lands, to ensure there are ongoing, meaningful opportunities for public input into the agency s decisions on the use and management of our public lands. Rather than seeking to change these fundamental laws through congressional intervention or undermining them in new directives, DOI can support their intent by clarifying the agency s commitment to multiple use management and its stakeholders through regulations, policies, and guidance. The clearest way to reduce litigation in these processes is to ensure that all of the mandates of FLPMA and NEPA are fully complied with and to actively build trust, credibility, and respect with public lands stakeholders. Cutting corners on key aspects of NEPA such as relying on quality data, considering a reasonable range of alternatives, and responding to substantive comments are the biggest risks for drawing legal challenges and delays from those challenges being successful. Substantially curtailing or eliminating the lease parcel review process would result in less informed decision making regarding oil and gas lease offerings and potentially increased number of lease sale protests 13 and challenges. BLM Instruction Memorandum : Helping to Ensure that Greater Sage-Grouse Stay Off the Endangered Species List A separate policy BLM IM is being used to assess and prioritize Expressions of Interest to lease particular parcels in accordance with the objectives and provisions in the Greater Sage-Grouse (GRSG) Plans, which, in 2015, were found to contain the measures necessary for keeping the sage-grouse off the list of endangered species. 14 The GRSG Plans include a decision to prioritize oil and gas leasing and development outside of Priority Habitat Management Areas (PHMAs) and General Habitat Management Areas (GHMAs) 15 based on the conservation goals to avoid or limit new surface disturbance in PHMAs and minimize surface disturbance in GHMAs. The IM provides the necessary guidance for implementing that requirement. As provided for in the IM, we support the ongoing prioritization of oil and gas leasing and development in the following priority order: 1) Lands outside of GHMAs and PHMAs, 2) Lands within GHMAs, and 3) Lands within PHMAs. We encourage DOI to continue implementation of Instruction Memorandum This guidance assists DOI in fulfilling their GRSG Plan requirements and provides clarity to staff in implementation. The lack of a standard method of 12 See Protest, C Lazy U Ranch (Apr. 6, 2017), available at Press Release, BLM Modifies Parcel List for June 2017 Oil and Gas Lease Sale (Apr. 17, 2017), available at 13 The Wilderness Society has tracked national oil and gas lease sale protested parcels from 2008 to 2015 and found that since implementation of IM site-specific protests have dropped by up to a half. 14 Approved Resource Management Plan Amendments for the Rocky Mountain and Great Basin GRSG Regions and nine Approved Resource Management Plans in the Rocky Mountain GRSG Region (collectively referred to as the GRSG Plans). 15 Rocky Mountain ROD at page 1-25, Great Basin ROD at page

6 prioritization with respect to GRSG habitat would result in less certainty to the oil and gas industry and potentially increased impacts to GRSG habitat and fragmentation. Conclusion Federal energy policy must not lose sight of the essential processes that have been established over time to protect important resources and uses, meaningfully engage local, state and Federal partners, and invite public participation under DOI s multiple use mandate. Rolling back foundational oil and gas leasing policies as discussed in this letter would lead to poor resource decisions, greater user conflicts, greater number of lease sale protests and challenges, and less certainty which could create a new set of unforeseen burdens for the oil and gas industry. We strongly encourage DOI to maintain the oil and gas leasing reform policies established under Instruction Memoranda , , and , and Chapter V of Handbook Thank you for considering these comments. Please direct any inquiries to the undersigned. Respectfully submitted, Nada Culver Senior Director, Agency Policy and Planning The Wilderness Society 1660 Wynkoop Street, #850 Denver, CO Nada_culver@tws.org Kate Kelly Public Lands Director Center for American Progress 1333 H St. NW, 10th Floor Washington, DC kpkelly@americanprogress.org Peter Nelson Director of Federal Lands Defenders of Wildlife 215 S. Wallace Ave. 6

7 Bozeman, MT Heidi McIntosh Managing Attorney, Rocky Mountain Office Earthjustice th Street, Suite 1600 Denver, CO Bobby McEnaney Government Affairs Director, Land & Wildlife Program Natural Resources Defense Council th Street NW, Suite 300 Washington, D.C Sara Kendall Washington, DC Office Director Western Organization of Resource Councils 110 Maryland Ave, NE, Suite 306 Washington, DC cc: David Bernhardt, Deputy Secretary of the Interior James Cason, Associate Deputy Secretary of the Interior Todd Willens, Assistant Deputy Secretary of the Interior Vincent DeVito, Counselor to the Secretary for Energy Katherine MacGregor, Deputy Assistant Secretary for Land and Minerals Management, Department of the Interior Kathleen Benedetto, Acting Deputy Director, Bureau of Land Management 7

8 Michael Nedd, Acting Director, Bureau of Land Management 8