USDA Forest Service San Juan National Forest http://www.fs.fed.us/r2/sanjuan San Juan Public Lands Center 15 Burnett Court Durango, CO 81301 Ph (970) 247-4874 Fax (970) 385-1243 USDI Bureau of Land Management San Juan Center http://www.co.blm.gov/ File Code: 1570 Date: August 1, 2008 Route To: Subject: To: Memorandum for Hells Gulch North, Phase 2 Decision Notice and Finding of No Significant Impact 2008-02-15-0019 Appeal Deciding Officer I have reviewed the appeal record regarding the June 19, 2008, appeal of the decision of Forest Supervisor Mary Morgan concerning the Plains Exploration and Production Company Hells Gulch North, Phase 2 Environmental Assessment on the White River National Forest. My review of the appeal as submitted by eligible Appellants focused on the decision documentation developed by the Forest Supervisor in reaching her decision in relation to issues raised in the appeal. Pursuant to 36 CFR 215.13(f)(2), this will constitute my written recommendation concerning the disposition of the appeal, and I am forwarding the appeal record to you. BACKGROUND The project area is located in Mesa County, Colorado, Rifle Ranger District. The decision is a natural gas exploration and development project from Plains Exploration and Production Company (PXP). PXP holds an oil and gas lease (COC-66918) with rights to drill on National Forest System (NFS) lands in T8S, R92W sections 23, 24, 25, and 26. The project will facilitate production of energy resources and allow PXP to exercise Federal lease rights that would include constructing roads and facilities to allow the exploration and production of potential gas resources from Federal land. Specifically, up to 6 well pads on NFS lands would be constructed, up to 45 natural gas wells would be drilled on NFS lands, approximately 6 miles of access road on NFS lands would be built, up to 6 miles of gas gathering and water pipelines on NFS lands would be constructed, and associated facilities would be constructed to develop the natural gas resource within the lease including gas meters, 400- barrel (bbl) storage tanks, and 13 dehydrator heater units. A total of 50 acres of new surface disturbance (pads, road, and pipelines) is anticipated on the 2,550 acres of leased public property. It is estimated that approximately 26 of the 50 acres of new disturbance will remain un-vegetated for the life of the project (20-30 plus years) if the first well is a producer. Conducting surface activities necessary to develop the oil and gas resources under a lease can be denied only when the activity constitutes a violation of law and regulation or would cause unacceptable impacts [30 U.S.C. 226(g); 36 CFR 228.105, 106, & 107; 43 CFR 3101.1-2]. Authority for complete denial can be granted only by Congress which can order the leases forfeited subject to compensation. It s Cool to Be Safe FS--6200-12a
RELIEF REQUESTED Vacate the decision of the White River National Forest supervisor approving Phase 2 of the Hell s Gulch project. ISSUES AND DISCUSSION ISSUE 1. The Forest Service has failed to meet its Obligations to Protect Air Quality. No exceedances of Prevention of Significant Deterioration (PSD) were identified with specific regard to this project in Class 1 Airsheds (EA pages 44-51, Air Quality Technical Support Document pages 34-42). In the Decision Notice/FONSI, EA and other supporting documents the Forest has identified specific equipment that would be used as mitigation to further reduce emissions. Appellants have not demonstrated that pollution controls are lacking. Because Ozone is not regulated by Colorado Department of Public Health and Environment (CDPHE), the analysis is in compliance with State law and Federal regulations (42 7407 Sec. 6101). This was adequately addressed in the Response to Comments (pages 9, 2-34) and Project File (Air Quality Document 3, Modeling Protocol). CDPHE is the regulatory and permitting agency for air quality in the State of Colorado. Appellants have not demonstrated that the Forest has authority in CDPHE s regulatory or permitting process regarding air quality. This has been adequately portrayed in the analysis (EA at 38-54) and supporting documentation (Air Quality Technical Support Document pages 6, 9 & 17). Cumulative effects to air quality were appropriately analyzed and modeled (Air Quality Technical Support Document, Appendix A). Issues relating to Class I & II airsheds cumulative effects to visibility and Acid Neutralizing Capacity (ANC) and the Forest Service s role have been thoroughly reviewed. Appellants have not demonstrated any violations of law, regulation or policy (Appeal page 2-5). ISSUE 2. The Forest Service should have prepared an Environmental Impact Statement.
Impacts of this project are immeasurable on a regional scale. Mitigation is in place to limit air pollutants. Air quality modeling has indicated no trigger point has been crossed that an EIS should be prepared for this analysis, but displays the on-going regional decline in air quality even if this project were not implemented due to the many sources of emissions considered in the modeling efforts (Air Quality Technical Support Document at 15-42, Appendix A and EA at 44-54). ISSUE 3. The Decision is Inconsistent with the Land and Resource Management Plan for the White River National Forest. 3a. Air Quality Appellants have not demonstrated any violations of law, regulation, policy, or conflicts with Forest Plan at 2-3. No exceedances of PSD or exceedances of LAC (Levels of Acceptable Change) were identified with specific regard to this project (EA pages 44-51, Air Quality Technical Support Document pages 34-42). Therefore, the project is in compliance with regulatory requirements and Forest Plan regarding air quality. 3b. Deer and Elk Desired conditions, standards and guidelines listed in the Forest Plan for management area 5.41 (pages 3-58 and 3-59) applicable to the proposed action are addressed by the application of design features and best management practices (Management Indicator Species Report table A-6, pages 11-14). This report concluded that the proposed action would have little effect on deer winter range capability because only a small portion in the northwest corner of the project area is mapped as deer winter range and this area is only used by deer in mild winters (Terrestrial Wildlife Technical Report page 17). The Management Indicator Species Report concluded that the proposed action would not have measurable effects to elk populations or habitat trends at the Forest-wide scale and elk population viability would not be affected at the Forest-wide scale (Terrestrial Wildlife Technical Report page 19). The elk habitat capability index is not expected to change at the Forest or Data Analysis Unit level after project implementation (Terrestrial Wildlife Technical Report pages 16 and 17). This report also concludes that although some individual animals would be affected at the project scale, it would be difficult to measure a change in population numbers resulting from this proposed action (Terrestrial Wildlife Technical Report page 20). For all these reasons, the wildlife specialist reports document that the proposed action is consistent with relevant Forest Plan direction, standards and guidelines for management area 5.41 management areas and therefore no violation of NFMA would occur.
3c. Management Indicator Species Population viability is determined at the Forest-wide scale (36 CFR 219.19). For this reason, project-level decisions may authorize actions that reduce habitat quantity or quality for management indicator species, as long as habitat capability is sufficient to ensure viability Forest-wide. The fact that populations of three management indicator species (elk, Brewer s Sparrow and Virginia s Warbler) appear to be declining does not, in and of itself, preclude authorization of projects affecting their habitats. The management indicator species report concluded that approving Phase 2 of the Hell s Gulch project would not affect Forest-wide viability for any management indicator species (Management Indicator Species Report page 19, 26 and 32) and therefore this decision is consistent with the Forest Plan. 3d. Reasonably Foreseeable Development Appellants have gone to great detail to calculate disturbances for the purposes of leasing and forest planning analysis. A Reasonably Foreseeable Development Scenario is a requirement of a leasing analysis (36 CFR 228.102) used to address potential impacts as a result of leasing and does not set limitations on development of an existing lease. Future leasing decisions would address which lands are available for leasing and identify which stipulations are needed to comply with the Forest Plan. This decision pertains to lands that are already under lease with lease stipulations where the owner of the lease is exercising their lease rights. The project is consistent with management objectives outlined in the White River s 1993 Oil and Gas Leasing FEIS and Record of Decision and Forest Plan which acknowledged that if leasing occurred that facilities may be needed for production (DN/FONSI at 3, EA page 2-6, Forest Plan page 1-12, and Response to Comments page 9, 2-3). ISSUE 4. The Forest Service s Analysis of Direct, Indirect, and Cumulative Impacts is Inadequate. 4a. Failure to adequately assess cumulative impacts on Ozone Pollution Appellants have not articulated concerns specific to this project regarding ozone. Ozone is not regulated by CDPHE. Therefore, the analysis is in compliance with State law and Federal regulations (42 7407 Sec. 6101). This has been adequately addressed in the Response to Comments (page 9, 2-34) and Project File (Air Quality Document 3, Modeling Protocol).
4b. Failure to adequately assess Impacts to Deer and Elk The wildlife reports for this project considered and analyzed direct, indirect and cumulative effects to elk and deer (Management Indicator Species Report pages 6-20 and EA pages 78-88 and pages 91-92, and Terrestrial Wildlife Technical Report pages 15-18). For deer, the Wildlife Technical Report concluded that the proposed action would have little affect on deer winter range capability because only a small portion of the northwest corner of the project area is mapped as deer winter range and this area is only used by deer in mild winters (Terrestrial Wildlife Technical Report pages 17 19). Although the Appellants requested a more detailed cumulative effects analysis for elk and deer, the analysis contained in the project record meets the requirements of law, regulation and policy. 4c. Failure to adequately assess impacts to Lynx The Biological Assessment for this project considered and analyzed direct, indirect and cumulative effects to Canada lynx (Biological Assessment pages 8-9, Response to Comments pages 8, 2-21). The U.S. Fish and Wildlife Service reviewed the Biological Assessment and concurred with its findings (letter dated January 25, 2008). Although the Appellants requested a more detailed cumulative effects analysis for Canada lynx, the analysis contained in the Biological Assessment meets the requirements of law, regulation and policy. 4d. Failure to adequately assess cumulative impacts to Sensitive Plants The EA (page 75) and Biological Evaluation Document properly identifies reasonably foreseeable future actions, including the development of Hells Gulch 1 for consideration in a cumulative impact analysis on sensitive plant species. This analysis determines that this project is unlikely to result in additional cumulative impacts to these species except for Wetherill Milkvetch where a small reduction in habitat may occur. The BE discusses the impacts from nearby projects in the cumulative impacts analysis as appropriate. 4e. Failure to adequately assess impacts to Aquatic Species No habitat for listed fish species is found in or near the project area, however degradation of water quality could impact these species as described in the EA (page 78 79). The water source to be used for this project has been previously consulted on with the U.S. Fish and Wildlife Service (USFWS) (EA pages 19-20). No new depletions will result from this project as described in Supplemental Information Document for the Hells Gulch North Phase 2 Natural Gas Project Biological Assessment. Project Best Management Practices for Watershed Protection are expected to prevent degradation of water quality within the project area. The Biological Assessment, (page 4), states that water depletions associated with this project have undergone Section 7 Consultation and are addressed under an existing U.S. Fish and Wildlife Service (USFWS) programmatic Biological Opinion. Direct, indirect and cumulative effects for Razorback Sucker, Colorado pikeminnow, Humpback chub, and Bonytail chub were analyzed in the USFWS programmatic Biological Opinion and effects to habitat downstream from the project area were considered. For this reason, off-site impacts from the project were considered. 4f. Failure to adequately assess impacts to Brewer s Sparrow Project effects to Brewer s sparrow and to sagebrush habitats in the project area were considered and analyzed in detail (Biological Evaluation pages 28-31, Terrestrial Wildlife Technical Report page 14, page 18, pages 20-22, and Appendix B map B-9, and management indicator species
report pages 26-32). These analyses considered a wide range of direct, indirect and cumulative effects to Brewer s sparrow and to the sagebrush habitats on which this sparrow depends. These analyses are sufficient to meet the intent of a hard look at the relevant issues regarding potential effects to Brewer s sparrow and sagebrush habitats. 4g. Failure to adequately assess impacts to Raptors Surveys for raptor nests were conducted in the project area, no active nests were found within 1 mile of a project feature, and the wildlife technical report concluded that no raptor nesting habitat would be impacted by the project on NFS lands (Terrestrial Wildlife Technical Report pages 12 and 15, and Response to Comments page 11, 2-50). Although Appellants request the application of more restrictive raptor nest protective measures, they do not demonstrate the need for these measures because no nests were found within 1 mile of project features. For this reason, the analysis contained in the terrestrial wildlife technical report meets the requirements of law, regulation and policy. 4h. Failure to adequately assess impacts to Recreation The Forest Plan describes the Recreation Opportunity Spectrum (ROS) in this area as semiprimitive non-motorized or semi-primitive motorized in the winter/spring and semi-primitive non-motorized or semi-primitive motorized in the summer/fall (Forest Plan page 3-57 and Response to Comments page 13, 2-68) with standards and guidelines for road building (Forest Plan page 3-58). Areas of both semi-primitive non-motorized and semi-primitive motorized are identified in the project area (EA page 91, Affected Environment). The EA specifies that big game and big game hunters will still be in Game Management Unit (GMU) 42 as stated in the EA (page 91). The EA and supporting documentation adequately address effects to big game hunted in the area (EA pages78-84, Management Indicator Species Report, and Terrestrial Wildlife Technical Report). The area is described as an area of dispersed recreation with a low level of intensity with the exception of the hunting season. The EA identifies that hunters would use a large area within GMU 42 and expect minimal impacts on recreational hunting (EA page 91-94). Existing public roads and dispersed campsites will remain accessible to the public. Slight traffic delays may occur (EA page 91). No change is expected in ROS classifications with regard to this decision (EA page 92).
RECOMMENDATION I recommend the decision of the Forest Supervisor be upheld, and the Appellants request for relief be denied. /s/mark W. Stiles MARK W. STILESMark W. Stiles Forest Supervisor/Center ManagerForest Supervisor/Center Manager San Juan National Forest cc: Tom Ford