The comment tracking number that has been assigned to your comment is OSTS2012D50323.

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1 Thank you for your comment, Kathleen Zimmerman. The comment tracking number that has been assigned to your comment is OSTS2012D Comment Date: May 4, :06:47PM OSTS 2012 Draft PEIS Comment ID: OSTS2012D50323 First Name: Kathleen Middle Initial: Last Name: Zimmerman Organization: National Wildlife Federation Address: 2995 Baseline Road, Suite 300 Address 2: Address 3: City: Boulder State: CO Zip: Country: USA Privacy Preference: Don't withhold name or address from public record Attachment: SFRED OSTS DPEIS 2012 comments_final.pdf Comment Submitted: Attached please find comments submitted on behalf of Sportsmen for Responsible Energy Development, the National Wildlife Federation, the Theodore Roosevelt Conservation Partnership, Trout Unlimited, the Colorado Wildlife Federation and the Wyoming Wildlife Federation.

2 May 4, 2012 Draft OSTS PEIS Argonne National Laboratory 9700 South Cass Avenue EVS/240 Argonne, IL Re: Comments on Draft Oil Shale and Tar Sands Resources Programmatic EIS Dear Reviewers: The following comments are submitted on behalf of Sportsmen for Responsible Energy Development (SFRED) and its founding partners the National Wildlife Federation, the Theodore Roosevelt Conservation Partnership, and Trout Unlimited. In addition, the Wyoming Wildlife Federation and the Colorado Wildlife Federation, also members of the SFRED coalition, join in these comments. SFRED is a coalition of more than 500 businesses, organizations and individuals dedicated to conserving irreplaceable habitats so future generations can hunt and fish on public lands. The coalition is led by the Theodore Roosevelt Conservation Partnership, Trout Unlimited and the National Wildlife Federation. As an organization, the National Wildlife Federation (NWF) represents the power and commitment of four million members and supporters joined by affiliated organizations in 48 states and territories. NWF and its affiliates have a long history of working to conserve the wildlife and wild places on federal public lands in the West. Many members of NWF and its affiliates use the lands and resources that could be impacted by oil shale and tar sands extraction. 1 The Theodore Roosevelt Conservation Partnership is a national non-profit conservation organization that is dedicated to guaranteeing every American places to hunt or fish. 1 In addition to these comments, NWF joins in those filed by Western Resource Advocates while supporting Preferred Alternative 2(b).

3 Trout Unlimited is a private, non-profit conservation organization that has more than 150,000 members nationwide dedicated to conserving, protecting, and restoring North America s trout and salmon fisheries and their watersheds. Since 1959, Trout Unlimited (TU) has dedicated staff and volunteers toward the protection of sensitive ecological systems necessary to support robust native and wild trout and salmon populations in their respective ranges. TU recognizes that the value of public lands is unparalleled in providing habitat to coldwater fisheries, drinking water and wildlife habitat. TU s expanding conservation program includes a public lands initiative that recognizes the importance of protecting public lands for the survival and restoration of wildlife and fisheries. TU's public lands initiative is not limited to anglers; TU recognizes that many people who fish also utilize public lands for hunting or wildlife viewing opportunities. TU believes that actions taken on public lands are ultimately reflected in the quality of fish and wildlife habitat and populations. In the tri-state region where oil shale and tar sands development could occur, TU has over 12,000 members who actively utilize and enjoy the resources of the Upper Colorado River basin, including the White River hydrologic basin in Colorado, the Uinta basin in Utah, and the Green River basin in Wyoming. TU believes the impacts from the development and production of oil shale and tar sands would adversely affect its members, as well as non-members, who hunt, fish, recreate, and do business in and around the Upper Colorado River basin. The Colorado Wildlife Federation (CWF) is Colorado s oldest statewide wildlife conservation organization, a 501(c)(3) nonprofit whose members consist of hunters, anglers and other wildlife enthusiasts. CWF s mission is to promote the conservation, sound management, and sustainable use and enjoyment of Colorado s wildlife and habitat through education and advocacy. CWF understands that wildlife habitat is critical to conserving Colorado s unique wildlife, hunting and fishing heritage, and wildlife viewing opportunities. These wildlife-related recreation pursuits enrich the well-being of residents and visitors and form a substantial segment of Colorado s economy. CWF s members hunt, fish, and recreate on federal public lands in Colorado and elsewhere in the Rocky Mountain region that could be developed for oil shale or tar sands production. The Wyoming Wildlife Federation (WWF), established in 1937, is celebrating its 75 th anniversary. With a membership of 5,000, WWF is Wyoming's oldest and largest statewide sportsmen/conservation organization. WWF works for hunters, anglers, and other wildlife enthusiasts to protect and enhance habitat, to perpetuate quality hunting and fishing, to protect citizens' right to use public lands and waters, and to promote ethical hunting and fishing. Members of WWF use lands and resources that could be adversely impacted by oil shale and tar sands development. We thank you for the opportunity to review and provide comment on the Draft Programmatic Environmental Impact Statement and Possible Land Use Plan Amendments for Allocation of Oil Shale and Tar Sands Resources on Lands Administered by the Bureau of Land Management in Colorado, Utah, and Wyoming (2012DPEIS). 2

4 Our organizations continue to oppose opening federal public lands for commercial oil shale and tar sands development. Research must precede any consideration of commercial leasing, and that research must demonstrate that extraction technologies exist that will protect clean air and water, conserve fish and wildlife, and sustain the western economies that depend on those resources. For that reason, we are encouraged to see that under the Preferred Alternative 2(b) identified in the 2012DPEIS, operators will only be able to secure commercial development rights after fulfilling the terms of a Research, Development and Demonstration (RD&D) lease. By requiring companies to first prove their technologies and assess the impacts to communities, human health, and fish and wildlife, Alternative 2(b) helps ensure that commercial oil shale and tar sands development will only be initiated following a fuller understanding and evaluation of its impacts. Preferred Alternative 2(b) also places off-limits areas containing important environmental and ecological values, including fish and wildlife habitats. This is an important step forward because, while the full impacts of commercial-scale oil shale and tar sands development are not yet understood, we do know that such development, using current technology, is incompatible with conservation of fish and wildlife habitats. All of the current extraction technologies being tested require operators to remove existing vegetation and either mine or re-grade the entire surface of the leased site, completely destroying habitat values. We, therefore, support the determination, reflected in the Preferred Alternative, to exclude oil shale and tar sands development within vital habitats such as crucial winter ranges for big game, breeding habitats for Greater sage-grouse, and native trout streams. Finally, while Preferred Alternative 2(b) represents a more rational and measured approach to oil shale and tar sands development, we continue to believe that no additional public lands should be devoted to this use until the RD&D leases already issued have produced tangible results and an analysis of their impacts has been conducted. We believe that analysis is critical to the development of standard provisions regarding any conversion of RD&D leases to commercial leases. Alternative 2(b) rests on the proposition that BLM can define the standards and procedures the agency will use in determining whether technologies are appropriate for commercial development. We believe that BLM will be in a better position to do so with whatever information is produced by the existing RD&D leases. I. THE LEGAL FRAMEWORK A. The National Environmental Policy Act The National Environmental Policy Act (NEPA) does not specifically address programmatic environmental impact statements (EISs). Council on Environmental Quality (CEQ) regulations at 40 CFR (b) refer to EISs for broad actions. However, CEQ regulations and guidance discuss this topic only briefly and in very general terms. Courts, therefore, have played a significant role in fleshing out these concepts over time. While many major unresolved issues remain regarding the precise components of programmatic NEPA documents, there is a legal consensus that these EISs perform at least two important functions. First, programmatic EISs, by taking a broad view avoid segmenting environmental analyses of common concerns by analyzing them in the entire program or suite of related or similar actions. Second, programmatic NEPA 3

5 documents can also be the most effective tool for addressing cumulative environmental impacts. Unfortunately, the 2012DPEIS cannot perform either of these programmatic functions, particularly with respect to its treatment of the potential fish and wildlife impacts of opening two million acres of public land to oil shale and tar sands development. As BLM itself admits, the 2012DPEIS contains no discussion of the cumulative impacts of the potential loss of these lands to fish and wildlife. In 2008, when it issued its Final Oil Shale and Tar Sands Programmatic Environmental Impact Statement (2008FPEIS), BLM understood that due to the experimental state of both oil shale and tar sands technologies, the agency lacked the necessary information to meet Congress s directive in the Energy Policy Act of 2005 to develop a programmatic environmental impact statement (PEIS) that could support commercial leasing. As the agency acknowledged then: The BLM originally intended the PEIS to support the amendment of land use plans to allocate areas open to commercial leasing and development of oil shale and tar sands, as well as to support the issuance of such leases. However, in consultation with the cooperating agencies, it was determined that the analysis to support immediate leasing decisions would require making speculative assumptions regarding potential, unproven technologies, and, consequently, the decision to offer specific parcels for lease was dropped from consideration in the PEIS. 2 Nevertheless, BLM amended 12 land use plans and made available for leasing more than 2 million acres of public lands. We believe that decision was premature and we applaud BLM s resolution to revisit it. Unfortunately, in 2012, BLM faces much the same challenge. The technologies are no more advanced than they were in Land use decisions and supporting NEPA analyses made without the benefit of additional research will continue to suffer from the same fundamental flaws BLM encountered when it issued the 2008FPEIS. The agency cannot make an informed decision to dedicate public lands to commercial oil shale or tar sands development. As the agency admits, it does not yet have sufficient information to conduct a cumulative impacts analysis, one of the cornerstones of NEPA 4 : [t]he current experimental state of the oil shale and tar sands industries does not allow this PEIS to include sufficient specific information or cumulative impact analyses to support future leasing decisions within these allocated lands. 5 We note that, while the 2012DPEIS provides a substantially better selection of alternatives than that which was provided in the 2008FPEIS, it still lacks a substantive analysis and comprehension of the likely impacts to fish and wildlife resources and of the economic value of these resources. However, by requiring companies to complete their research, evaluate the impacts of their extraction technologies, and design effective mitigation measures prior to FPEIS at ES-3 (emphasis added) DPEIS at U.S.C f DPEIS at

6 obtaining a commercial lease, BLM hopefully will have the opportunity to secure good, current, independently-verifiable data to support the agency s land use decisions before large tracts of public land are committed to development. Nevertheless, due to these challenges, the 2012DPEIS remains deficient as a NEPA document. Because of the incomplete state of the technology and the corresponding limitations of this PEIS, subsequent NEPA analyses will be required before any commercial leases are issued, including those that arise from an existing RD&D project. These analyses should include either another PEIS or require lessees to conduct full environmental impact statements. 6 Environmental assessments at the leasing stage would not sufficiently address the legal and other deficiencies contained in this 2012DPEIS. Given that BLM must delay a full and complete cumulative impacts analysis, the final PEIS should focus instead on three important components of its oil shale and tar sands program: 1. defining the scope of the subsequent NEPA analysis, including the scope of the cumulative impacts analysis; 2. evaluating any available mitigation actions and directing the adoption of effective mitigation; and 3. establishing terms, including stipulations, of RD&D leases and criteria for conversion of RD&D projects to commercial development leases. 1. Defining the scope of subsequent NEPA As we noted above, the 2012DPEIS fails to address the cumulative impacts of commercial-scale oil shale and tar sands development on fish and wildlife. In order to do so, subsequent NEPA documents must articulate a reasonably foreseeable development scenario for oil shale and tar sands extraction projects and, at a minimum, address all: 1. activities leading to soil and vegetation disturbance; 2. activities leading to changed habitat structure; 3. activities leading to habitat fragmentation; and 4. activities leading to loss of water quantity or quality. 7 The final PEIS should clearly state that this analysis must be completed before commercial leases will be issued or commercial development permitted. In addition to the cumulative impacts of oil shale and tar sands extraction, BLM must also address the fact the area identified within the 2012DPEIS as containing oil shale or tar sands also includes lands that hold oil, gas, and other minerals. Many of these lands already have producing wells. Yet, the 2012DPEIS contains little information on the combined impact of oil shale and 6 BLM must ensure that any subsequent NEPA documents include a robust examination of landscape-level cumulative impacts and avoid a piecemeal approach to authorizing this new and potentially destructive use of public lands. 7 Subsequent NEPA analyses must fully address climate changes, including shifts in the vitality and habitat range of fish and wildlife species. See, e.g., Greater sage-grouse discussion infra at 16. 5

7 tar sands extraction and oil and gas drilling on fish and wildlife populations. Subsequent NEPA documents must assess the cumulative impacts of all minerals development as well as other human activities on both public and private lands within the region that provide habitat for fish and wildlife. 2. Evaluating available mitigation measures and directing the adoption of effective mitigation NEPA is intended to help public officials make decisions that are based on an understanding of environmental consequences, and to take actions that protect, restore, and enhance the environment. 8 Federal agencies are required, to the fullest extent possible, to use all practicable means consistent with the requirements of NEPA to restore and enhance the quality of the human environment and avoid or minimize any possible adverse effects of their actions upon the quality of the human environment. 9 A crucial element in meeting this mandate is developing and implementing mitigation measures. The Council on Environmental Quality (CEQ) regulations define mitigation as: 1. avoiding the impact altogether by not taking a certain action or parts of an action; 2. minimizing impacts by limiting the degree or magnitude of the action and its implementation; 3. rectifying the impact by repairing, rehabilitating, or restoring the affected environment; 4. reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action; and 5. compensating for the impact by replacing or providing substitute resources or environments. 10 In January 2011, CEQ issued new guidance regarding mitigation. 11 This guidance provides that mitigation measures must be explicitly described as ongoing commitments and should specify measurable performance standards and adequate mechanisms for implementation, monitoring, and reporting. 12 Pursuant to CEQ s rules and guidance, the discussion of wildlife mitigation in the 2012DPEIS is wholly inadequate. First, it consists of little more than a list of measures that might be employed. 13 Second, these measures simply are not up to the task of mitigating the impacts of oil shale and tar sands development on fish and wildlife. With respect to the impacts of human activities on big game, for example, BLM traditionally has relied on seasonal restrictions such as limiting human access to winter ranges from mid-november to the end of April. However, 8 See 40 C.F.R (b). 9 Id. at (f) C.F.R Fed. Reg (January 21, 2011). 12 Id. 13 See 2012DPEIS at

8 limiting the construction activities associated with oil shale and tar sands projects to the summer months provides no protection for big game. When the animals return to the winter range in November, they will find their habitat has been hauled away, is covered with waste shale, or is devoid of vegetation. 14 Seasonal restrictions have also been used with respect to sage-grouse brooding habitats and winter concentration areas. 15 Given the current imperiled status of Greater sage-grouse populations, we do not believe such restrictions provide a responsible approach to wildlife conservation and BLM s obligation to manage its lands for multiple uses. Sage-grouse habitats must be protected year-round from the destructive impacts of oil shale and tar sands extraction. The 2012DPEIS also references the Recommendations for Development of Oil and gas Resources within Crucial and Important Wildlife Habitats prepared by the Wyoming Fish and game Department. 16 While we welcome BLM s recognition of these Recommendations, they are directed primarily at limiting the surface disturbance associated with oil and gas development. They include such measures as directional drilling and clustering associated infrastructure in order to reduce the footprint of oil and gas development on fish and wildlife habitat. Yet, BLM assumes that most oil shale and tar sands operations will either drill or mine 100 percent of the surface of the leased area. There simply is no effective mitigation other than avoidance for the habitat losses resulting from oil shale and tar sands development. For example, BLM states in the Final Environmental Impact Statement for the Jack Morrow Hills Coordinated Activity Plan (JMHCAP FEIS) that it may be impossible to reclaim some sagebrush habitats. 17 Migration corridors for big game have been lost permanently to development. Animals are driven off of crucial ranges onto lands that will not sustain them. 18 We therefore support the determination expressed in Preferred Alternative 2(b) to mitigate impacts on fish and wildlife by following CEQ s first rule of mitigation avoidance and excluding some vital habitats from development. We do not believe other measures are currently available to mitigate the terrestrial impacts of oil shale and tar sands development on vital fish and wildlife habitats. Given the nature of oil shale 14 Timing limitations also are only applied to exploration and development activities, as described in most BLM land use planning documents; long-term production activities continue to occur during sensitive winter periods. 15 Id. at F Id. at U.S. Department of the Interior, Bureau of Land Management Jack Morrow Hills Coordination Activity Plan for Public Lands Administered by the Bureau of Land Management, Rock Springs Field Office, Rock Springs: Environmental Impact Statement, p. 4-74; see also U.S. Department of the Interior, Bureau of Land Management Proposed Resource Management Plan and Final Environmental Impact Statement for the Pinedale Resource Area, p : Although reclamation of some disturbed sites would occur, the level of habitat diversity and quality that existed prior to disturbance would likely not be achieved for several decades and may never return to predisturbance conditions. This would likely result in permanent reductions in wildlife populations and impairment of water quality and vegetation communities in some areas. 18 See Comments submitted by A. William Alldredge on 2008FPEIS. 7

9 and tar sands extraction and the fragile environments at risk, we doubt mechanisms other than avoidance will ever prove effective. Mechanisms may arise as extraction technologies are researched to reduce impacts on water quality and quantity which are also important to fish and wildlife conservation. Those measures must be tied to the specific technologies used and other contemporary water demands. We encourage BLM to use existing RD&D opportunities to examine whether water usage and pollution can be minimized. 3. Defining stipulations and reporting requirements in RD&D leases The final PEIS should clarify that, in addition to standard environmental analyses, all future RD&D lessees will be required to provide a quantifiable analysis of the water and energy demands of their extraction technologies, water quality impacts, air impacts, and other effects on fish and wildlife habitats. This is consistent with the terms specified in the second round of oil shale RD&D lease terms. For example, following completion of research activities, RD&D lessees should be required to specify how much water a commercial-scale operation would require and the impacts of that water demand on other uses, including instream flows and peak flows. Under these terms, approval of any commercial leases would only be granted upon an adequate analysis of those impacts, and clear and detailed plans for mitigating such impacts. 19 BLM can also, in appropriate circumstances, rely on the broad discretion it has under FLPMA to deny commercial oil shale and tar sands leases without completing the NEPA process. 20 B. The Federal Land Management and Policy Act and Resource Management Planning According to BLM a plan-level decision to open the lands to mineral leasing represents BLM s determination, based on the information available at the time, that it is appropriate to allow development of the parcel consistent with the terms of the lease, laws, regulations, and orders, and subject to reasonable conditions of approval. 21 However, the 2012DPEIS contains no such determination with respect to oil shale and tar sands. BLM s current guidance on oil shale leasing and land use planning requires its Resource Management Plans (RMPs) specifically to identify the following: 19 In Preferred Alternative 2(b), portions of three of the five Preference Right Lease Areas for the existing Colorado RD&D leases are no longer identified as available for application for commercial leasing. These lands include vital winter ranges for big game. We urge BLM to evaluate whether alternative sites might be more appropriate should the lease holders complete their projects and apply for approval to expand into commercial development. 20 See, e.g., U.S. Department of Energy. October Supplement to the Draft Programmatic Environmental Impact Statement for Solar Energy Development in Six Southwestern States. 21 BLM Handbook H , Appendix C at 24. 8

10 1. Areas open to leasing, subject to existing laws, regulations, and formal orders; and the terms and conditions of the standard lease form. 2. Areas open to leasing, subject to moderate constraints such as seasonal and controlled surface use restrictions. (These are areas where it has been determined that moderately restrictive lease stipulations may be required to mitigate impacts to other land uses or resource values.) 3. Areas open to leasing, subject to major constraints such as no-surface occupancy stipulations on an area more than 40 acres in size or more than 0.25 mile in width. (These are areas where it has been determined that highly restrictive lease stipulations are required to mitigate impacts to other lands or resource values. This category also includes areas where overlapping moderate constraints would severely limit development of fluid mineral resources.) 4. Areas closed to leasing. (These are areas where it has been determined that other land uses or resource values cannot be adequately protected with even the most restrictive lease stipulations; appropriate protection can be ensured only by closing the lands to leasing.) Identify whether such closures are discretionary or nondiscretionary; and if discretionary, the rationale. 5. Resource condition objectives that have been established and specific lease stipulations and general/typical conditions of approval and best management practices that will be employed to accomplish these objectives in areas open to leasing. 6. For each lease stipulation, the circumstances for granting an exception, waiver, or modification. Identify the general documentation requirements and any public notification associated with granting exceptions, waivers, or modifications Whether the leasing and development decisions also apply to geophysical exploration. 8. Whether constraints identified in the land use plan for new leases also apply to areas currently under lease. 9. Long-term resource condition objectives for areas currently under development to guide reclamation activities prior to abandonment. 22 The RMP amendments proposed in the 2012DPEIS contain none of this information. In fact, there is no description of commercial lease terms at all because those decisions have been deferred. 23 Of course, it is understandable that BLM is unable to make these determinations at this time since it lacks the relevant information to do so. For example, in 2008, after consulting with cooperating agencies, BLM concluded that, because it lacked sufficient information regarding the commercial viability of extractive technologies for both oil shale and tar sands, trying to anticipate a certain level of development would be too speculative. 24 However, a detailed description of Reasonably Foreseeable Development (RFD) is precisely what is required by BLM s own land use planning guidance before RMPs can be adopted that 22 BLM Handbook H , Appendix C at DPEIS at In 2012, no Reasonably Foreseeable Development Scenario has been prepared because, unlike oil and gas drilling, oil shale and tar sands extraction is not a mature technology. 2012DPEIS at

11 open lands to mineral leasing. 25 Without any information on the level of oil shale or tar sands development the opening of these lands will set in motion, it is impossible to determine whether the other management goals set forth in these RMPs can be met. Resource Management Plans, however, are required to provide adequate information not just on the plan s objectives but also on how those objectives will be reached. BLM s Land Use Planning Handbook states that [l]and use plan decisions establish goals and objectives for resource management (i.e. desired future conditions), the measures needed to achieve those goals and objectives, and the parameters for using BLM lands. They identify lands that are open or available for certain uses, including any applicable restrictions, and lands that are closed to certain uses. 26 Land use plans must also identify the actions needed to achieve desired outcomes, including actions to maintain, restore or protect land health. 27 The RMPs amended by this document cannot meet these requirements. Therefore, no commercial leasing of oil shale and tar sands resources in appropriate at this time. II. WHAT IS AT STAKE While oil shale and tar sands proponents extol the potential economic value resulting from largescale development, they often downplay or ignore the economic value such development could damage. Yet, the quality of the natural environment and fish and wildlife habitats is a critical economic asset in this region. 28 A September 2008 report prepared for the Colorado Division of Parks and Wildlife concluded that the 2007 direct annual expenditures in Colorado from hunting and fishing alone were approximately $1.1 billion. 29 Secondary impacts of the dollars re-spent within the economy in 2007 are estimated to be $767 million, for a total economic impact of more than $1.8 billion. The same study found wildlife-watching yields an additional total economic impact of $1.2 billion annually. Wildlife plays a similarly important role in Utah and Wyoming. Even under Preferred Alternative 2(b), BLM admits that oil shale, tar sands and ancillary facility development may fragment or destroy wildlife habitat and affect the behavior of migratory big game species such as elk and mule deer, which form an important basis for recreational activities in many parts of each [Region of Influence]. 30 The 2012DPEIS identifies 172,339 acres of mule deer winter habitat, 11,470 acres of mule deer summer habitat, 159,205 acres of elk winter habitat, and 11,465 acres of elk summer habitat overlap lands that would be available for oil 25 See, e.g., BLM Handbook H , Appendix F-4 at 18 (In the chapter on environmental consequences, draft and final RMPs/EISs must include reasonably foreseeable development scenarios for all uses.). 26 BLM Handbook H at Id. at See Sportsmen for Responsible Energy Development/Southwick Associates Conserving Lands and Prosperity available at 29 BBC Research & Consulting, The Economic Impacts of Hunting, Fishing and Wildlife Watching in Colorado, Final Report, revised September 18, 2008, report prepared for Colorado Division of Wildlife, p. 1. Main report web page: report-specific web page: f DPEIS at

12 shale leasing. 31 In Utah, for tar sands alone, 57,708 acres of mule deer winter habitat, 17,110 acres of mule deer summer habitat, 52,361 acres of elk winter habitat, and 17,170 acres of elk summer habitat overlap lands that would be available for tar sands leasing. 32 Oil shale and tar sands development will diminish tourism and recreational opportunities. Outdoor recreation, including hunting and fishing, would decline. In Colorado, oil shale would result in a loss of up to 2,830 jobs and $36.5 million in income annually in the Regions of Influence (ROIs). In Utah, 1,552 jobs and $12.6 million in income would be lost from oil shale and tar sands in the ROIs. In Wyoming 2,719 jobs and $14.4 million in income would be lost. Additional economic impacts would be felt elsewhere. Impacts from the development scenarios considered in Alternatives 1 and 4 would be significantly greater. Because resources important to both traditional western values, such as hunting and fishing, and emerging new economies are at stake, the cautious and measured approach to commercial oil shale and tar sands development outlined in Preferred Alternative 2(b) is both appropriate and necessary. A. Water Resources Water resources in the West are scarce and are under increasing pressure from development. Water resources are also extremely important to western economies. In Colorado alone, nonconsumptive water-related activities contribute between $7 billion and $8 billion to the state s economy and employ 85,000 people. 33 It is therefore imperative that subsequent NEPA analyses evaluate the impact diverting water for oil shale and tar sands development would have on these industries. Since 2008, however, little new and verifiable data on the precise water demands of oil shale and tar sands extraction technologies has been generated. For example, the Government Accounting Office s (GAO s) October 2010 report on oil shale and water, Energy-Water Nexus: A Better and Coordinated Understanding of Water Resources Could Help Mitigate the Impacts of Potential Oil Shale Development, 34 concluded that oil shale would likely require 4-to-5 barrels of water for every barrel of oil produced from shale, higher than BLM s projections in the 2012DPEIS DPEIS Table at DPEIS Table at General Accounting Office. October Energy-Water Nexus: A Better and Coordinated Understanding of Water Resources Could Help Mitigate the Impacts of Potential Oil Shale Development [hereinafter GAO Report]. 35 Id. GAO concluded the range of water-to-oil is 1:1 to 20:1. The report further stated 4-5 barrels of water to oil was a good working figure. 11

13 According to GAO: The unproven nature of oil shale technologies and choices in how to generate the power necessary to develop this resource cast a shadow of uncertainty over how much water is needed to sustain a commercially viable oil shale industry.these nascent efforts do not adequately define current baseline conditions for water resources in the Piceance and Uintah Basins, nor have they begun to model the important interaction of groundwater and surface water in the region. 36 **** Water is likely to be available for the initial development of an oil shale industry, but the size of an industry in Colorado or Utah may eventually be limited by water availability. Water limitations may arise from increases in water demand from municipal and industrial users, the potential of reduced water supplies from a warming climate 37, fulfilling obligations under interstate water compacts, and the need to provide additional water to protect threatened and endangered fishes. 38 The 2012DPEIS makes clear that water requirements for commercial development could be substantial. It also projects how much water might be available for oil shale and tar sands development and the impacts of using large quantities of water on existing demand and future uses (though the data is often based on dated materials). Based on these projections, the 2012DPEIS concludes in Tables and and the corresponding text that demand in the Upper Basin could exceed what is legally available to these states. Moreover, acre-feet of surface water demand is not the only question that must be answered. Much if not most of the water required by oil shale and tar sands development would need to be stored in reservoirs. Big flows only happen in the spring, yet industry would need water all year round. The impacts of storage projects on endangered and native fish species and healthy river systems must be evaluated as well. The 2012DPEIS fails to adequately analyze these impacts. There are also significant concerns regarding the major alteration of aquifer hydraulic characteristics, flow patterns and subsurface water quality over large areas, due to extraction mining and/or in-situ processing of oil shale and tar sands resources. Included in these impacts are the drilling, de-watering, isolation, reclamation, waste disposal and excavation activities associated with resource extraction and processing. In addition, because the processes associated with in situ extraction techniques, which will affect geological formations including aquifers, may be thermal, chemical and physical, a detailed analysis of these technologies once identified 36 Id. at Climate changes may increase the challenges states will face. As the 2012DPEIS makes clear, by 2050, water in the Colorado River Basin could be reduced by 6-20%. 2012DPEIS at 4-36 to Such reductions would further stress existing resources, compounding the problems posed by large development projects such as oil shale and tar sands extraction. 38 GAO Report at

14 is required in order to evaluate down-hole impacts and suitable mitigation measures. The 2008FPEIS failed to provide this analysis and the 2012DPEIS still does not contain sufficient information to support credible conclusions or recommendations regarding oil shale and tar sands development. The impacts of waste discharges from oil shale processing facilities, power generation, and other processes associated with the exploitation of the oil shale and tar sands resources remains a high concern and the 2012DPEIS lacks an in-depth assessment of such impacts to water resources. For example, it does not describe and evaluate the quantity and quality of leachate water and runoff from spent tar sands or oil shale spoils and tailings and all areas altered by extraction activities so that appropriate mitigation measures can be identified and implemented. This gap remains and must be addressed. Impacts resulting in increased concentrations and loadings of selenium and salinity in the Colorado River and its tributaries are likely to occur, as acknowledged in the 2008FPEIS and the 2012DPEIS. However, the 2012DPEIS does not address how they may be mitigated or avoided. Such impacts are particularly troubling because they have long been identified as special concerns under existing conditions and could be greatly exacerbated by oil shale and tar sands development. The 2012DPEIS does not rigorously address the impacts of alterations in river water quality on endangered species. This is of particular concern with respect to the Endangered Fish Recovery Implementation Program, for which major efforts and expenses have already been incurred in the Colorado River Basin. The 2012DPEIS also fails to provide adequate data on the significance of groundwater in the three affected states. 39 BLM admits that much is unknown regarding groundwater availability and significance. Yet, many areas, such as the Green River and Washakie Basins, rely entirely on groundwater as the sole source of drinking water. Groundwater recharge also plays a major role for important streams and habitat for sensitive fish and wildlife species. Major groundwater contamination concerns have been identified, including the burden of spent shale which has significantly higher salt levels than raw shale and may yield other toxic substances. 40 However, very little analysis of the potential impacts on other resources or effective mitigation measures 41 is provided in the 2012DPEIS. It is clear that, prior to any leasing or development of oil shale and tar sands resources, much more extensive groundwater analyses must be conducted. 39 Much of the groundwater data in the 2012DPEIS is extremely dated. For example, water use estimates within the Green River Basin are from This data does not take into account existing oil and gas drilling operations which have expanded over the past 20 years the area, nor does the 2012DPEIS make any attempt to consider the cumulative impacts posed by proposed but not yet operating oil and gas development projects, such as the Hiawatha Project located within the Washakie Basin. BLM provided 1984 groundwater data for the tar sands analysis section in the 2012DPEIS. 40 Bartis, Jim Oil Shale Development in the United States: Prospects and Policy Issues. RAND publication. 41 Relying on Best Management Practices (BMPs) through BLM land use plans is not sufficient. There are ample examples of poor BMP implementation and lack of effective monitoring of energy impacts currently within the three-state region. 13

15 B. Fish and Wildlife Values According to the 2012DPEIS, most oil shale and tar sands projects will disturb 100 percent of the leased surface. 42 In other words, these projects will completely eliminate the value of those lands as wildlife habitat. In the arid environs where oil shale and tar sands development is being proposed, [r]eclamation to functional systems similar to that found pre-disturbance will take in excess of 50 years (Baker 2006). 43 Therefore, habitats disturbed by oil shale and tar sands development would be unavailable for decades even after reclamation has been initiated. 44 Moreover, impacts on most wildlife are not proportional to the amount of habitat lost. 45 Habitat is not all created equal, some areas of habitat are simply more valuable that others. 46 Winter range, for example, is considered a limiting factor for big game species. According to the 2012DPEIS, at least 735,000 acres of mule deer winter habitat, including 78,093 acres of mule deer critical winter range; 31,479 acres of mule deer migration corridors; 649,700 acres of elk winter habitat; and 190,478 acres of elk production area is at risk. 47 Displacement of big game from high value and important habitat to other, often lesser quality habitat, places additional stressors on these animals. 48 Since big game already is being impacted by the oil and gas development activities underway in many critical winter range areas in all three states, losing more habitat (and furthering concentrating big game populations into smaller and smaller areas) could lead to unacceptable losses. Over half a million acres of identified sage-grouse habitat is also at risk. Sage-grouse are on the verge of requiring listing under the Endangered Species Act. They have declined precipitously range-wide. Declines have been estimated at over 50% in occupied area and up to 80% decline in bird abundance, with complete extirpation in several states. A federal court recently concluded that energy development in the eastern reaches of sage-grouse range, including Wyoming and Colorado, poses a significant threat to sage-grouse. 49 Leks, nesting habitat, and winter concentration areas are all vital to the continued viability of sage-grouse. Based upon the information that is contained in the 2012DPEIS, oil shale and tar sands development poses a huge threat to fish and wildlife, including species that already are on the verge of disappearing. Hundreds of thousands of acres of vital wildlife habitats may be occupied by oil shale and tar sands projects to the exclusion of all other uses, including fish and wildlife, perhaps for generations. Reclamation does not address this loss because habitat 42 See 2012DPEIS at 4-3 to Comments submitted by A. William Alldredge, Ph.D. on the 2008FPEIS at Id. 45 Id. 46 Id. 47 See, e.g., 2012DPEIS at 6-18; see also Comments submitted by the Colorado Department of Natural Resources on the 2008FPEIS. 48 Sawyer, Hall, et al Winter Habitat Selection of Mule Deer Before and During Development of a Natural Gas Field. Journal of Wildlife Management 70: ; Sawyer, Hall, et al. 2009b. Influence of well pad activity on the winter habitat selection patterns of mule deer. Journal of Wildlife Management 73: Western Watersheds Project v United States Fish and Wildlife Service, No. CV E-BLW, slip op. at 13 (D. Id. December 4, 2007). 14

16 functions will not be restored for decades. Moreover, none of the other mitigation measures discussed in the 2012DPEIS will reduce the impact of this loss because none of the measures currently in BLM s toolbox were designed to redress a use that destroys and then occupies such vast amounts of land surface. 1. Greater sage-grouse 50 Since the 2008 FPEIS was issued, the United States Fish and Wildlife Service (USFWS) determined that listing the Greater sage-grouse as threatened or endangered rangewide is warranted but precluded by higher priority listing actions. As the agency cautions, [e]vidence suggests that habitat fragmentation and destruction across much of the species range has contributed to significant population declines over the past century. If current trends persist, many local populations may disappear in the next several decades, with the remaining fragmented population vulnerable to extinction. 51 The USFWS also found that southwestern and central Wyoming and northwestern Colorado are strongholds for sage-grouse, with some of the highest estimated densities of males anywhere in the remaining range of the species. The USFWS identified this high-density sagebrush area as one of the highest priorities for conservation consideration as it comprises one of two remaining areas of contiguous range essential for the long-term persistence of the species. 52 The sage-grouse stronghold identified by USFWS overlaps with areas proposed for oil shale and tar sands development. Such development would eliminate all grouse habitat on the lease, and likely render adjacent habitat unsuitable as well causing abandonment by near-by sagegrouse populations due to industrial activity on the lease. For this reason, we strongly urge BLM to place all identified sage-grouse Core Areas within Wyoming and all sage-grouse habitat in Colorado and Utah off limits to oil shale and tar sands extraction. 53 The maintenance of high-quality sagebrush steppe habitats, particularly nesting and wintering habitats, is necessary to maintain viable sage-grouse populations. 54 Large sage-grouse Core Areas like South Pass and the Kinney Rim/Vermillion have been proposed for protection from future oil and gas leasing under BLM s Wyoming sage-grouse plan amendment. Populations in 50 As a keystone species, the health of Greater sage-grouse populations is a good indicator of overall ecosystem health for the sagebrush ecosystem. Landscape-scale conservation strategies targeting the sage-grouse also benefit dozens of additional sagebrush obligate wildlife species, from pronghorn to BLM Sensitive songbirds (last accessed March 29, 2012) Fed. Reg , (March 23, 2010) (citing Wisdom et al. (in press, p. 23)). 53 BLM currently is in the process of amending all applicable land use plans to improve the agency s sage-grouse conservation efforts and identify priority sage-grouse habitats. To ensure consistency with those new plans, BLM should take no action that might result in the potential loss of sage-grouse habitat. The Preferred Alternative 2(b) calls for protection of priority sage-grouse habitats. However, those habitats have yet to be delineated and we encourage BLM to err on the side of caution until range-wide conservation measures are in place. 54 To ensure viable sage-grouse populations, it is important to consider nesting, brood-rearing, and winter habitats. Holloran and Anderson found that 64% of sage-grouse females nested within 5 km of a lek. Holloran, M.J., and S.H. Anderson Spatial distribution of greater sage-grouse nests in relatively contiguous sagebrush habitats. Condor 107:

17 Colorado and Utah are generally more compromised and at-risk than Wyoming; special care must be taken to appropriately scale conservation efforts to states with smaller populations. 55 Additionally, Colorado, Utah and Wyoming sage-grouse populations are genetically connected. Impacts from development to the populations in one state are likely to negatively influence populations in the other states. Corridors and genetic connections between different populations and across state lines must inform decision-making. Additional habitat fragmentation and infrastructure impacts that further isolate populations must be avoided. In December 2011, BLM issued A Report on National Greater Sage-Grouse Conservation Measures. This report by the BLM s sage-grouse National Technical Team (NTT) establishes that BLM s objective is to develop new or revised regulatory mechanisms, through Resource Management Plans (RMPs), to conserve and restore the greater sage grouse and its habitat on BLM administered lands on a range wide basis over the long term. 56 With the NTT and the sage-grouse plan amendments, BLM is taking steps to achieve its goal to maintain and/or increase sage grouse abundance and distribution by conserving, enhancing or restoring the sagebrush ecosystem upon which populations depend in cooperation with other conservation partners. 57 The NTT further provides that [u]ntil such time as more specific conservation objectives relative to sage grouse distribution or abundance by sage grouse management zone, state, or population are developed, BLM will strive to maintain or increase current distribution and abundance of sage grouse on BLM administered lands in support of the range wide goals. 58 As BLM finalizes a new policy based on the NTT s recommendations that will ensure the longterm viability of the species, and the USFWS moves toward reconsideration of its warranted but precluded finding, it is important that current sage-grouse habitat be preserved. Additionally, BLM needs to address whether adjacent lands may warrant protection because they are likely to provide important habitat in the future, as climate change results in shifting habitat types and ecosystem conditions. 2. Mule deer Properly managing mule deer dramatically benefits local rural communities. The Western Association of Fish and Wildlife Agencies Mule Deer Working Group explains why mule deer are important to sportsmen and small towns: In a 2006 survey of outdoor activities, USFWS reported that nearly 3 million people hunted in the 19 western states (USFWS 2007). In 2006 alone, hunters were afield for 55 Connelly proposed comprehensive guidelines regarding the management of sage-grouse, focused around the conservation of breeding/nesting habitat, late summer brood-rearing habitat, and wintering habitat. Connelly, J.W., M.A. Schroeder, A.R. Sands, and C.E. Braun Guidelines to manage sage-grouse populations and their habitats. Wildl. Soc. Bull. 28: Department of the Interior, Bureau of Land Management. December A Report on National Greater Sage Grouse Conservation Measures, p Id. at Id. 16

18 almost 50 million days and spent more than $7 billion in local communities across the West on lodging, gas and hunting-related equipment. Although this included hunters that pursued other species, mule deer have traditionally been one of the most important game animals in the West. According to the same 2006 survey, 25.6 million residents in 19 western states spent more than $15.5 billion that year watching wildlife. 59 Total hunting and fishing sales and revenue for 2010 in project area 60 Hunting Fishing Total Licenses/Revenue Licenses/Revenue Licenses/Revenue Colorado 538,734/$56,200,410 1,039,177/$15,112,929 1,577,911/$71,313,339 Utah 292,695/$12,005, ,098/$10,084, ,793/$22,090,337 Wyoming 278,632/$25,267, ,313/$5,366, ,945/$30,633,695 Total Sales/Revenue 2,228,407/$1,240,373,371 Yet, mule deer are struggling across the West. They are declining in population in many areas, including Colorado, Utah, and Wyoming. 61 Deer face a number of stressors, but most significant is that their habitat is changing and disappearing. The causes of these habitat losses include but are not limited to suburban and rural sprawl, livestock management, fire suppression, invasive species and traditional and renewable energy development. During the last decade, as energy production has expanded on western public lands, scientific understanding about the impacts of energy production on fish and wildlife populations has expanded as well, with much being learned about how mule deer respond. For example, a series of studies on the Pinedale Anticline show that drilling and production of natural gas on crucial winter range significantly affect mule deer, with dramatic decreases in wintering populations within the developed area. In 2007, Sawyer et al. published research that attributed 27 percent of the decline in mule deer on the Pinedale Anticline to energy development. In 2010, monitoring reports show a 60-percent loss in mule deer since development began in Many wildlife experts are now concerned that the dramatic increase in energy production on public lands represents the most significant threat to mule deer populations as a result of both direct loss of crucial habitat and disruption. Oil shale and tar sands development further threatens mule deer habitat and populations. BLM s existing mitigation measures have proved insufficient to address big game impacts even from more traditional forms of oil and gas development. New data from Sawyer et al. 62 illustrate 59 Lutz et al Oil/gas, wind, and solar energy development guidelines for mule deer. Western Association of Fish and Wildlife Agencies Mule Deer Working Group. 60 USFWS, ifaims database at 61 See Theodore Roosevelt Conservation Partnership. April Mule Deer and Energy: Federal Policy and Planning in the Greater Green River Basin available at ; Ellenberger, J., A.G Byrne Population Status and Trends of Big Game and Greater Sage- Grouse Along the Colorado/Wyoming State Line. A Report prepared for the National Wildlife Federation available at 62 Sawyer, Hall, et al ; Sawyer, Hall, et al. 2009b. 17

19 that timing limitations, for example, should no longer be considered as adequate oil and gas mitigation lease stipulations. This research, based on extensive study within oil and gas development fields in Wyoming, indicates that the standard stipulations BLM routinely and traditionally imposes are ineffective as currently implemented. Timing limitations typically apply only during the exploration and construction phases of oil and gas extraction; they provide no protection during production. Moreover, timing stipulations do not address the loss of habitat once an area can be accessed and disturbed when the seasonal restrictions expire. Current science supports the use instead of No Surface Occupancy stipulations in vital big game habitats such as critical winter range. Critical winter ranges contain the important cover, forage, and security that assure the survival of mule deer and elk herds, even in the worst of winters. Any direct habitat loss to these important lands compromises the ability of populations to survive when snowpack is at a maximum and temperatures are coldest. As mentioned above, Sawyer s research, among others, demonstrates the impacts of oil and gas developments over a 10 year period on mule deer in western Wyoming: a 46% decline in use on critical winter range and a 60% decline in population abundance are directly attributable to the impacts from energy development and relaxing the timing restrictions. 63 Changes in habitat selection and use by mule deer were immediate and little to no acclimation to well pads was evidenced after 10 years of monitoring. 64 We urge BLM to include additional review of migration corridor studies that illustrate the importance of maintaining big game migration corridors and their proximity to energy development facilities. Sustaining migratory populations of mule deer requires the maintenance and protection of suitable seasonal ranges and maintaining functional uses of migration routes. 65 Distinguishing between high use areas (which may concentrate deer on key forage habitat and create slow movement through an area) and lower-use areas (which provide faster corridor movement and connectivity between high use areas) can provide mitigation opportunities including facility and road development structure, avoiding fragmentation, and ensuring deer have safe access between areas. 66 Finally, the 2012DPEIS fails to mention the recent Western Governors Association s recommendation and review of wildlife critical habitat and migration corridors, as required under BLM IM This IM ( Identification and Uniform Mapping of Wildlife Corridors and Crucial Habitat Pursuant to a Memorandum of Understanding with the Western Governors Association ) was issued December 21, 2011, and provides guidance to all BLM field offices in identifying wildlife corridors and crucial habitat using the newly developed Western Wildlife Crucial Habitat Assessment Tool (CHAT). This multi-dimensional effort is designed to 63 Sawyer, Hall, R. Nielson Mule Deer Monitoring in the Pinedale Anticline Project Area: 2010 Annual Report. Presented to the Pinedale Anticline Planning Office, Pinedale, Wyoming. 64 Sawyer, Hall, et al. 2006; Sawyer, Hall, et al. 2009b. 65 Sawyer, Hall Final Report for the Atlantic Rim Mule Deer Study. Prepared for Anadarko Petroleum, BLM, and the Wyoming Game and Fish Department. April Sawyer, Hall, M. Kauffman Identifying Mule Deer Migration Routes Along the Pinedale Front. Report prepared for the Wyoming Wildlife and Natural Resources Trust. May 2008; Sawyer, Hall et al Identifying mule deer migration routes to and from the Pinedale Anticline Project Area. Report prepared for University of Wyoming School of Energy Resources, Laramie, WY. November

20 coordinate information about priority habitat areas existing across political jurisdictions in specific regions of the West. The timeframe for implementing the use of CHAT is immediate, according to the IM. We urge BLM to employ CHAT as another habitat analysis tool under the 2012DPEIS. We support the determination in Preferred Alternative 2(b) to place many vital big game habitats off limits to oil shale and tar sands development, including crucial winter ranges. However we also encourage BLM to continue to assess whether additional habitat protections for big game may be necessary. In particular, we urge the agency to collect additional data on migration corridors and the importance of transitional ranges to mule deer, elk, and other big game species. 3. Fish The discussion of aquatic resources in the 2012DPEIS is improved over that included in the 2008FPEIS; however, it still does not provide sufficient consideration of potential impacts to Colorado River fish species and associated aquatic habitats. Though native trout and native fishes are mentioned, there is little recognition of their specific locations and importance within the various watersheds that could be impacted by oil shale and tar sands development. This is particularly noticeable with respect to Colorado River cutthroat trout (CRCT). For example, within the Green River Oil Shale Basin, numerous tributaries to the Green River contain CRCT populations. This includes the eastern portion of the Green River Oil Shale Basin between Flaming Gorge and Wyoming Highway 191. Here, within what is known as the Greater Little Mountain Area, populations of CRCT exist in small, often isolated sagebrush ecosystems. Trout Creek, Gooseberry Creek, Sage Creek, and Currant Creek are important waters for CRCT populations. Considerable time, effort, and money has been spent restoring riparian habitats, improving watershed conditions, and preventing further degradation to these sensitive watersheds. Numerous partners have contributed to the restoration efforts over the last 20 years, including BLM. The 2012DPEIS contains almost no discussion of the importance of the watersheds to recreational anglers. Though briefly mentioned in a single paragraph describing the affected environment in the Piceance Basin, no similar discussion of recreational fisheries is included in sections on the Uinta Oil Shale Basin, the Washakie Oil Shale Basin, or the Green River Oil Shale Basin. Angling and hunting within these areas are important economic and tourism drivers. Within the Green River Oil Shale Basin alone, two major reservoirs (Flaming Gorge Reservoir and Fontenelle Reservoir) exist which provide thousands of annual recreational days for boating, angling, picnicking, and hunting activities. Finally, the Wyoming Game and Fish Department has recently completed updates to the state s Strategic Wildlife Action Plans (SWAP) in This re-evaluation of the Species of Greatest Conservation Need from 2005 includes a new evaluation system for conservation prioritization. Like Utah, Wyoming applies a tier ranking system. For purposes of the 2012DPEIS, the bluehead sucker, flannelmouth sucker, roundtail chub, and the CRCT all are designated as Tier I species (having the highest priority ranking). A more detailed assessment of impacts to these 19

21 high priority species must be conducted prior to any oil shale and tar sands leasing or development. a. Colorado River cutthroat trout. The potential oil shale and tar sands development area encompasses five native trout conservation populations; one is in a tributary to the Green River just above Flaming Gorge Reservoir, while the other four are located across the divide in headwater tributaries to the Colorado River. Ensuring the future viability of these populations is critical given the extent of extirpation that has already occurred and the tenuous nature of the remaining populations. BLM, through its Colorado, Wyoming and Utah State Directors, is a participant in the CRCT Conservation Team and a signatory to the Team s Conservation Agreement, which obligates the BLM to ensure implementation of CRCT conservation actions detailed in the Team s Conservation Strategy. The 2012DPEIS mentions the Conservation Agreement and its obligations yet it provides no discussion as to how BLM would protect both current and potential cutthroat trout habitat. In fact, there is no discussion of the potential CRCT habitat which exists in all three states within the oil shale and tar sands development area. Strategies for conserving this sensitive species call for securing and enhancing individual populations of CRCT. One of the most challenging needs for CRCT is the reestablishment of large, interconnected habitat areas where fluvial and adfluvial populations can exist free of nonnative trout species. Headwater streams typically provide habitat for CRCT populations and these stream reaches are typically small with stream widths less than 15 feet and depths less than three feet. Due to the small stream reaches, any degradation or catastrophic event will have immediate and long-term consequences to the fisheries population, and typically result in total fish loss. Such an event was witnessed in a tributary of LaBarge Creek in the 1970 s by the Wyoming Game and Fish Department, when an oil spill into the stream killed all CRCT. This population never recovered. 67 CRCT populations are not tolerant of sediment loads which can occur with road traffic, air pollution, construction activities, sudden weather events, spills, steep slopes, etc. Such erosion events can cover eggs from spawning, literally wiping out the following year s age class of fish. Oil shale and tar sands development, as described in the 2012DPEIS, creates tremendous potential for heavy surface impacts which could affect coldwater fisheries. The increase in roads, truck traffic, construction activities, toxic spill potential, in-situ and open pit operations, and loss of water due to dewatering of streams and groundwater systems all spell potential impacts to CRCT. Like oil and gas drilling, the oil shale and tar sands extraction will result in accidental spills. Most energy development involves high risk to the environment; each of the three states (especially Colorado) has a history of hazardous spills or discharges into coldwater streams in accidents ranging from diesel truck turnovers to uncontrolled discharges of hazardous fuels. Consideration of these impacts must be included in any NEPA analysis. 67 Binns, Allan Wyoming Game and Fish Internal Report. 20

22 b. Nongame native fish species. Since so many nongame native warmwater fishes are concentrated within the potential oil shale and tar sands development area, we recommend avoidance of all disturbance to streams and riparian zones. Maintaining these species habitats in quality condition will prevent the future listing of additional nongame native fish and conserve those species already listed as federally endangered. 4. Alternative C and wildlife In the 2008FPEIS, Alternative C is presented as BLM s attempt to identify those lands that would be excluded from oil shale or tar sand development on the basis of existing land use plan decisions. BLM made the determination that the most effective means of identifying lands that should be excluded on this basis was to exclude those lands within each field office where stipulations for no surface disturbance or seasonal limitations are in place for oil and gas leasing. While we welcome BLM s incorporation of these exclusions in its Preferred Alternative for the 2012DPEIS and agree that the lands identified should be off-limits to commercial oil shale and tar sands leasing, the list of lands is incomplete. Resource managers and the public have had no opportunity to consider whether oil shale or tar sands extraction would be incompatible with other land management objectives. With respect to sage-grouse, much of the vital habitat has not been identified and mapped by either BLM or state wildlife agencies. With respect to many other wildlife species, there is simply no usable data regarding the location and condition of important habitats. 68 As for big game, winter range traditionally has been considered the limiting factor, however, significant losses of summer and/or transitional ranges as a result of oil shale and tar sands projects could also pose threats to the continued vitality of big game populations. Because the 2012DPEIS still contains no information regarding the migration and use patterns of big game herds, it is impossible to estimate those impacts. See Comments submitted by A. William Alldredge. However, conservation of big game populations and distributions may require additional ranges be set off-limits. We, therefore, encourage BLM to address these habitats in future NEPA documents. 68 There are several efforts underway to collect and standardize landscape-level data on fish and wildlife habitats and populations. These include the Department of the Interior s Landscape Conservation Cooperatives, BLM s Rapid Ecological Assessments, BLM s sage-grouse conservation planning effort, and WGA s wildlife corridors initiative. We urge BLM to await the outcome of these efforts before moving forward with any additional oil shale and tar sands leasing or development. 21

23 C. Areas of Critical Environmental Concern (ACECs) and Other Special Designation Lands 1. ACECs FLPMA defines ACECs as areas within public lands where special management attention is required to protect and prevent irreparable damage to important historic, cultural, or scenic values, fish and wildlife resources, or other natural systems or processes, or to protect life or safety from natural hazards. 69 Under FLPMA, BLM is obligated to give priority to the designation and protection of areas of critical environmental concern. 70 In the 2008FPEIS, BLM opened all ACECs to application for commercial leasing, except for lands where mineral development is not currently allowed. This commitment to protect only a portion of ACECs was insufficient. The 2012DPEIS, through Preferred Alternative 2(b), improves upon the 2008 decision by excluding from commercial development all ACECs, including those areas under consideration for designation under current planning processes. 71 We support those additional protections and urge their inclusion in the final PEIS. As the 2012DPEIS makes clear, BLM would not be able to prevent undue degradation to important values for which ACECs were designated should oil shale or tar sands development proceed: Oil shale and transmission or pipeline development on any ACEC would result in a loss of all or a part of the resources or values for which the area was originally designated. Oil shale development within the viewshed of these areas may also result in adverse impacts on scenic values of these areas. 72 Given the relatively small number of acres of designated ACECs that overlap prospective oil shale and tar sands development areas 73, all ACECs should be closed to oil shale and tar sands development, even those that currently are open to mineral development. At the time of designation, it was assumed that the sensitive resources within these ACECs could withstand some level of disturbance from oil and gas drilling or other human activity. Oil shale and tar sands development represents quite a different level of surface disturbance, one that is irreconcilable with the protection of most other resource values U.S.C. 1702(a) U.S.C. 1712(c)(3) DPEIS at E-S 6 and DPEIS at ACECs that are not closed to mineral leasing include approximately 44,000 acres and are shown in Table Should oil shale development occur in these areas, the values within these designated ACECs would be lost. 2012DPEIS at

24 2. Lands with wilderness characteristics Because roadless and undisturbed lands provide important fish and wildlife habitat and unique opportunities for outdoor recreation, including hunting and fishing, we support the determination in Preferred Alternative 2(b) to place lands with wilderness characteristics off limits to oil shale and tar sands development. The congressional funding limitation for fiscal year 2011 limiting implementation of Secretarial Order 3310 regarding wild lands designations does not prohibit BLM from considering wilderness as part of this PEIS or relieve BLM from its continuing statutory obligation to inventory and manage federal lands for wilderness values Wyoming: other lands to be protected a. Adobe Town Adobe Town has been called the crown jewel of the Red Desert, encompassing irreplaceable ecological, geological, historical, and recreation values. At 180,910 acres, Adobe Town is Wyoming s largest and most spectacular desert wilderness. Stretching 26 miles north to south and 19 miles east to west, this area is one of the last places in Wyoming where visitors can take in views of pristine landscape that stretch from horizon to horizon. The landscape ranges from banded badlands to mazes of arches, pinnacles, and spires, offering spectacular scenic vistas and important wildlife habitat. Following the issuance of the 2008FPEIS, the State of Wyoming designated the Adobe Town area as Very Rare or Uncommon under the state Environmental Quality Act. We are encouraged to see that BLM is proposing to protect the Adobe Town area from development in the Preferred Alternative 2(b). We strongly support this decision and urge BLM to include such protections in the final decision in order to ensure consistency with state plans and policies under FLPMA. 75 Adobe Town has a host of sensitive wildlife habitats that are crucial or vital to meeting the very rare or uncommon designation criteria. These habitats include sage-grouse leks and big game crucial winter ranges. The cliffs and pillars found throughout Adobe Town provide ideal nesting habitat for raptors. There is a desert elk herd, known to the Wyoming Game and Fish Department as the Petition Herd, which is one of the few true desert elk herds in North America, spending the entire year in the Red Desert. 74 FLPMA requires BLM to maintain on a continuing basis an inventory of all public lands and their resource and other values (including, but not limited to, outdoor recreation and scenic values), giving priority to areas of critical environmental concern. This inventory shall be kept current so as to reflect changes in conditions and to identify new and emerging resource and other values. 43 U.S.C. 1711(a). 75 In the 2008FPEIS, only lands designated as WSA within Adobe Town were protected from commercial development. All of Adobe Town as a State of Wyoming Very Rare and Uncommon area, not just the WSA, should be excluded from oil shale development. 23

25 b. Little Mountain area, including Greater Red Creek ACEC, Red Creek WSA, and Sugarloaf Basin SMA These areas were established under the Green River RMP and constitute an outstanding big game hunting resource and CRCT trout habitat. According to the Wyoming Game and Fish Department, the elk hunt in this area is the single most sought-after tag in the entire state. Some of the most important mule deer, elk, pronghorn, and sage-grouse high value habitat exists within this ACEC complex. Oil shale activities would effectively remove wildlife species, including elk and mule deer, destroying the recreational quality of this area. CRCT populations within this ACEC complex exist in drainages with extremely sensitive soils making these isolated populations vulnerable to extirpation. Important springs help maintain the high water quality necessary for CRCT to exist. c. Jack Morrow Hills planning area The most prospective oil shale area in Wyoming includes portions of the Jack Morrow Hills planning area, a subset of the Rock Springs Field Office set aside from the Green River Resource Management Plan in the 1990s for special planning due to its outstanding wildlife and cultural resources. The results of that planning effort should not be undermined by opening the area to oil shale development. This is an area highly important for both dispersed recreation and elk hunting. It also contains the Boars Tusk and White Mountains Petroglyph Site, both of which are culturally important to Native American tribes. 4. Colorado: other lands to be protected a. State Wildlife Areas Colorado State Wildlife Areas (SWAs) should be protected from oil shale development. Six SWAs abut BLM lands or overlap with BLM managed subsurface resources opened for oil shale development in These areas include: Shell Oil SWA hunting lease Yellow Creek Unit Square S Summer Range Unit Square S Ranch Unit Little Hills Unit North Ridge Unit of the Piceance SWA These areas all provide important habitat for fish and wildlife, as well as recreational opportunities and an economic draw for local communities. These areas must be protected from both direct and indirect impacts associated with oil shale development. 24

26 b. ACECs (1) East Fork Parachute Creek 76 East Fork Parachute Creek provides year-round habitat for CRCT, the only native trout in the Colorado River basin. 77 East Fork Parachute Creek is identified as one of the five areas containing conservation populations by the Conservation Agreement and Strategy for Colorado River Cutthroat Trout in the States of Colorado, Utah, and Wyoming. 78 The Conservation Agreement gives highest priority for management and protection to streams identified as containing conservation populations. 79 Populations of CRCT in East Fork Parachute Creek are at least 90% genetically pure. 80 The importance of these trout populations is clear. This area must be protected from oil shale development in order to ensure the subspecies continues reproducing and recruiting. Oil shale development will likely result in increased sedimentation, reductions in water quantity and quality, ground water flow alteration, and increased likelihood of water contamination with toxic byproducts. These impacts will add stresses to CRCT populations and, in so doing, may undermine one of the values this ACEC was designated to protect. BLM considers the entire watershed to be important to the long-term functionality of vital ecosystem processes that maintain upland and stream habitats important to these fishes. 81 According to BLM, these streams are regionally and nationally important producers of native, genetically pure and naturally reproducing Colorado River cutthroat trout, going on to proclaim that these streams should be given the highest priority for management and protection It appears that BLM will revisit and correct the illegal decision made in the 2008FPEIS and corresponding Record of Decision to open Naval Oil Shale Reserves (NOSRs) Nos. 1 and 3 to oil shale leasing. That 2008 decision ignored a withdrawal on the NOSRs preventing those lands from being leased for oil shale development. See 2012DPEIS at 3-7. BLM must identify the NOSRs as unavailable for application for commercial oil shale leasing in any final PEIS barring issuance of an opening order. Such a decision would eliminate the threat of commercial oil shale development in the East Fork of Parachute Creek. 77 U.S. Department of Agriculture, Forest Service Conservation Status of Colorado River Cutthroat Trout, p. 1, available at: 78 Available at: 79 These populations also meet the BLM s own criteria for a conservation population. A conservation population is defined as: [a] reproducing and recruiting population of native cutthroat trout that is managed to preserve the historical genome and/or unique genetic, ecological, and/or behavioral characteristics within a specific population and within geographic units. See U.S. Department of the Interior, Bureau of Land Management Roan Plateau Planning Area Proposed Plan/Final Environmental Impact Statement, pp U.S. Department of the Interior, Bureau of Land Management Roan Plateau Resource Management Plan Amendment, p Id. 82 Id. 25

27 (2) Trapper/Northwater Creek ACEC 83 Trapper and Northwater Creeks are tributaries to the Colorado River, and the creeks provide year-round habitat for CRCT. This ACEC is a critical conservation area for CRCT. Three of the five conservation populations of CRCT that exist atop the Roan Plateau are found within this ACEC. Included in these are core conservation populations, identified by a genetic purity of 99% or higher. 84 We also urge BLM to preclude oil shale development on upper reaches of Trapper and Northwater Creeks that are not included in the Trapper/Northwater Creek ACEC. Industrial development higher up in these watersheds has the potential to impact downstream values, including the values for which the ACEC was designated. At risk, in this case, would be nearly all of the Northwater Creek and a significant portion of the Trapper Creek populations of CRCT. 5. Utah: other lands to be protected a. White River ACEC The Vernal RMP included a potential ACEC of 47,130 acres surrounding the deep canyon of the White River. This potential ACEC would have protected unique geologic formations with spectacular vistas and the high-value river riparian ecosystem. 85 The White River provides critical habitat for the endangered Colorado pikeminnow, as well as habitat for other threatened, endangered, and sensitive species, including the razorback sucker, flannel mouth sucker, roundtail chub, Yellow-billed Cuckoo, Peregrine Falcon, and Bald Eagle. 86 D. Economics and Recreational Values Public lands and their fish and wildlife resources are increasingly important from an economic standpoint and continue to be a wise long-term investment. 87 Recreation has become one of the most important uses of our nation s public lands, providing benefits beyond hunting and fishing. 88 Outdoor recreational opportunities sustain an annual $730 billion contribution to the U.S. economy. 89 For lands managed by the Department of the Interior (which include those BLM 83 Trapper/Northwater ACEC is also almost entirely within the NOSR and cannot be available for oil shale development absent issuance of an opening order reversing the withdrawal that currently applies to the area. See 2012DPEIS at Id. at U.S. Department of the Interior, Bureau of Land Management The Vernal Field Office Proposed Resource Management Plan and Final Environmental Impact Statement, p Id. 87 American Landscapes. Newsletter, Fall Conservation and the Economy: the Economic Benefits of Public Lands. 88 Collins, Sally, and H. Brown. Discussion Paper, The Growing Challenge of Managing Outdoor Recreation, Journal of Forestry 105(7)[Oct/Nov] ). 89 Outdoor Industry Foundation The Active Outdoor Recreation Economy available at 26

28 lands within the potential oil shale and tar sands development area) more than 437 million recreational visits in 2010 supported more than 388,000 jobs nationwide and contributed over $44 billion in economic activity, including 9,000 jobs in Colorado, 15,000 jobs in Utah, and 14,000 jobs in Wyoming. 90 In Colorado, Utah, and Wyoming, close to 3 million people participated in fishing activities in This amounted to more than $1.3 billion in expenditures to these three states. More than 523,000 hunters participated in some form of big game hunting in these same three states, contributing approximately $900 million in hunting expenditures. 91 Ranging from mule deer hunting in Utah s Bookcliffs to elk hunting in Wyoming s Greater Little Mountain area to fishing wild trout streams in Colorado, the fish and wildlife resources at stake should oil shale and tar sands development proceed are important to sportsmen and to the businesses and families that depend on the renewable economic contribution sportsmen make each year to rural communities. Conserving public lands is essential to maintaining hunting, fishing and outdoor recreation and the western economies that are sustained by them. 92 We urge BLM not to overlook these values of the lands it manages in trust for all Americans. III. CONCLUSION We are not opposed to the development of energy resources on our nation s public lands. We understand that energy is vital to America and that, given the volatility of global markets, it is imperative that we reduce our reliance on foreign sources. However, because other important values are also at stake, such as fish, wildlife, and water, BLM must ensure that its decisions regarding the use of public lands are responsible and undertaken with a level of care commensurate with the trust that has been placed in its hands. Decisions to make public lands available on a commercial scale for unproven technologies at what could be terrible costs to other valued resources would be irresponsible at this juncture. Sincerely, 90 U.S. Department of the Interior. June The Department of Interior s Economic Contributions. 91 USFWS National Survey of Fishing, Hunting and Wildlife-Associated Recreation: State Overview. 92 SFRED s own recently released study concludes that sustainable industries on public lands such as hunting, fishing, and outdoor recreation are important to the continued economic vitality of rural western communities. Sportsmen for Responsible Energy Development/Southwick Associates. Conserving Lands and Prosperity available at 27

29 Kate Zimmerman Senior Policy Advisor Public Lands National Wildlife Federation Rocky Mountain Regional Center 2995 Baseline Road, Suite 300 Boulder, Colorado Suzanne B. O Neill Executive Director Colorado Wildlife Federation 1410 Grant Street, Suite C-313 Denver, Colorado ext. 1 Steve Belinda Senior Policy Advisor Energy Theodore Roosevelt Conservation Partnership 1660 L Street NW, Suite 208 Washington, D.C., SBelinda@trcp.org Joy Bannon Field Director Wyoming Wildlife Federation P.O. Box 106 Cheyenne, Wyoming Brad Powell Energy Director Sportsmen Conservation Project Trout Unlimited 1300 North 17th Street, Suite 500 Arlington, VA BPowell@tu.org 28