Hard questions presage challenges to federal grouse plans

By Scott Streater | 06/16/2015 01:06 PM EDT

The Obama administration is promoting final federal greater sage grouse protection plans as powerful conservation tools that won’t stifle “sustainable development and traditional uses of the land” across 50 million acres in 10 Western states. But ranchers, energy developers and others affected by those plans aren’t so sure. Their concerns almost certainly foreshadow administrative protests and legal challenges.

The Obama administration is promoting final federal greater sage grouse protection plans as powerful conservation tools that won’t stifle "sustainable development and traditional uses of the land" across 50 million acres in 10 Western states.

"They respect the existing rights that exist on those lands," Interior Secretary Sally Jewell declared as she rolled out the plans last month in Cheyenne, Wyo. "They take a balanced and a targeted approach, focusing protections on the places that matter most."

But some ranchers, energy developers and others affected by those plans aren’t so sure they’re "balanced and targeted." Stakeholders have questions and strong concerns about how they’ll be affected by land-use amendments outlined in the plans’ 14 final environmental impact statements.


Their concerns almost certainly foreshadow administrative protests and legal challenges.

The plans establish primary habitat management areas (PHMAs) and general habitat management areas (GHMAs) where new oil and gas drilling, some large transmission line projects and livestock grazing would be prevented or limited. The goal is to focus conservation measures in specific areas that are most important to the grouse, while still allowing oil and gas and renewables development.

The federal plans clearly state that valid, existing leases and authorizations, such as permits to drill oil and gas wells, will not be affected. Nor will "no surface occupancy" restrictions and buffers around sage grouse breeding areas, called leks, be applied retroactively to existing leases.

"Let me be clear: Valid, existing rights will continue under current plans," Jim Lyons, Interior’s deputy assistant secretary for land and minerals management overseeing conservation of sage grouse, said in a recent interview. "Under valid existing rights, we cannot preclude someone from exercising their right."

But critics say there are subtle differences in the way conservation measures in the proposed plans are applied to oil and gas projects in some states, most notably Wyoming, which is a big oil- and gas-producing state but is also home to an estimated 37 percent of the greater sage grouse population and more leks than any other state.

The Cowboy State’s largest grouse plan — the so-called 9 Plan greater sage grouse resource management plan amendment — covers nearly 16 million acres of BLM and Forest Service lands in a horseshoe pattern extending along the southern, eastern and western sides of the state.

The plan clearly says leases issued in PHMAs before the plan amendments are formally approved in a signed record of decision will be honored. But other components of the plan could add time and cost, potentially making it more difficult to develop these leases that were issued before the plans are finalized in a record of decision later this summer.

That’s because the plan contains measures that could make it difficult for leaseholders to obtain the actual permits authorizing drilling activity, as well as rights-of-way (ROW) grants needed to build roads and pipelines to bring the mineral resources to market, according to the plan.

Interior Secretary Sally Jewell
Interior Secretary Sally Jewell, shown here answering questions from reporters about the greater sage grouse plans last month in Cheyenne, Wyo., says the plans “take a balanced and a targeted approach” to saving the bird. | Photo by Scott Streater.

Rights of way for roads, pipelines and transmission lines in prime grouse habitat are allowed under the Wyoming plan but almost always only through specifically designated corridors that may or may not line up with an oil and gas, wind, solar or other energy project’s location.

"ROWs are needed to provide access roads, transmission lines, and pipelines to well pads; as well as access roads and transmission lines to wind development sites," the plan says. "With this limited access to transportation and infrastructure, oil and gas projects could face delays and complications or be prevented from efficient use of mineral and energy resources."

Critics such as Kent Holsinger, a Denver-based natural resources attorney who represents industry, agriculture and local governments on sage grouse issues, say that while state grouse plans in Utah and elsewhere offer "ironclad commitments" to honor leaseholders’ rights, the Bureau of Land Management "offers no such commitments."

Interior’s Lyons counters that if project developers with pre-existing leases and drilling permits need rights of way for roads and pipelines that would cross some portion of primary grouse, BLM will work with them to obtain approval. This would likely be accomplished by offsetting impacts in ways that improve grouse habitat in the area enough to "demonstrate we’re not just holding our own, but that we’re actually making an improvement" for the grouse.

If so, he said, "then that’s a mechanism by which they can proceed."

Disturbance cap

Another major issue involves new surface disturbance caps of 3 to 5 percent in grouse habitat, and how they will affect pre-existing oil and gas lease owners.

The sage grouse plans call for limiting new surface disturbance activities, including oil and gas development. The plans call for total surface disturbance activities within PHMAs of no more than 3 percent in nine of the states covered by the plans and no more than 5 percent in Wyoming.

The new disturbance caps would cover about 35 million acres (Greenwire, June 5).

Under the plans, if the caps are exceeded, no new man-made disturbance activity can be permitted by BLM or the Forest Service "until enough [sage grouse] habitat had been restored to maintain the area under this threshold."

In states like Colorado, where 37 percent of the PHMAs on federal lands in the state are leased for oil and gas, this has raised concerns among industry leaders.

Kathleen Sgamma, vice president of government and public affairs for the Denver-based Western Energy Alliance, said she’s aware of PHMAs in Colorado where existing surface disturbance activity, including oil and gas drilling, is already pushing against the disturbance cap limits in some cases, potentially complicating oil and gas leases that have not yet started production.

"That’s an issue that needs to be answered," said Eric Washburn, a former aide to Senate Minority Leader Harry Reid (D-Nev.) who now works for the lobbying firm Bracewell & Giuliani LLP, where he advises the firm’s industry and nonprofit clients on energy and natural resource policy issues.

"Obviously, you don’t want to go back and change rights that have already been granted," Washburn said. "But on the other hand, if you’ve decided scientifically that here’s what we need to do, and we really do need to adhere to a 3 to 5 percent disturbance cap, what budges? The existing leasing rights, or the disturbance caps?"

Lyons said that in such a scenario, the valid existing leaseholders will not lose the right to develop.

"We don’t anticipate that will impact any projects currently pending," Lyons said of the caps. "And certainly will not impact any already leased projects that were already in development."

An Interior fact sheet on the new plans notes BLM estimates 90 percent of federal land with high oil and gas potential is outside PHMAs.

"Ninety percent of the lands with high and medium oil and gas potential are still on the table for development because they’re outside of the priority habitat areas," Jewell said. "So let’s focus on the 90 percent that are available, not the 10 percent that are more complicated by their location with the habitat."

Transmission trouble?

The new federal plans have not won over advocates for added electrical transmission capacity.

"I would think BLM’s plan, if it goes into effect the way it’s presented, is going to make it harder without a doubt to site major transmission projects that are of regional importance," said John Chatburn, administrator of the Idaho Office of Energy Resources.

Indeed, it will be difficult to develop new projects in greater sage grouse strongholds, which are defined in the federal plans as sagebrush focal areas. These areas, which are a subset of the PHMAs, are "essential for the species’ survival," according to the plans. "The plans offer the highest protections in these anchor areas."

Transmission projects will also be forbidden in primary habitat management areas in most states covered by the plans.

In Colorado and North and South Dakota, for example, right-of-way grants to build major transmission line projects of 100 kilovolts or more are forbidden "under any circumstance" in PHMAs.

But there are exceptions in other states.

In the Utah subregion plan covering 4 million acres, including almost all of Utah and portions of the Ashley and Uinta-Wasatch-Cache national forests that extend into southwest Wyoming, major and minor infrastructure rights of way in primary habitat are listed as avoidance areas, where approval would be possible only with "special stipulations."

Transmission projects will be allowed to cut through PHMAs in Wyoming, but only through designated 2-mile-wide corridors, or within a half-mile on either side of an existing 115 kilovolt or larger power line. New transmission projects proposed outside these corridors "would only be considered where it can be proven that sage-grouse populations could be avoided through project design and/or mitigation," according to Wyoming’s 9 Plan.

What’s more, the plans exempt from the avoidance area designations some major multistate transmission line projects that are currently under review by BLM, including Rocky Mountain Power’s Energy Gateway South and Gateway West projects, which cover portions of Wyoming, Colorado, Utah and Idaho, and Anschutz Corp.’s TransWest Express project extending into parts of Wyoming, Colorado, Utah and Nevada.

"The Obama Administration identified these transmission projects as priority projects, as part of the President’s commitment to job creation and modernizing America’s Infrastructure," according to the proposed land-use plan amendment documents.

Each of the projects would include sage grouse conservation measures as a condition of approval.

"It’s good from that perspective," Chatburn said of the exemptions. "But it still brings into question as you’re moving forward, particularly with renewable energy development and the need for additional transmission, how do you get the lines built?"


One of the most complicated and nuanced sections of the federal grouse plans deals with cattle grazing.

Ranchers are critical to saving the sage grouse. The Agriculture Department’s Natural Resources Conservation Service reported earlier this year that since 2010, it has spent $296 million on programs partnering with ranchers and other private landowners that have resulted in restoring 4.4 million acres of sage grouse habitat.

Yet the National Cattlemen’s Beef Association and the Public Lands Council, a national association representing Western state cattle and sheep affiliates, has called on the Interior Department to withdraw the grouse plans, claiming the Obama administration "is systematically wiping out multiple-use and ranching through regulatory overreach."

The U.S. Cattlemen’s Association has taken a softer stance. Danni Beer, the association’s president, wrote this week in The Hill that the group is pleased that Interior and NRCS "are actively working with cattlemen across the West" to prevent the need for an ESA listing. "This is common-sense wildlife management and land management," Beer wrote.

The plans clearly state that existing federal grazing allotments on BLM and Forest Service lands will be honored. What’s more, "no lands are going to be placed off-limits to grazing," Robert Bonnie, the Agriculture Department’s undersecretary for natural resources and the environment, said during the grouse plan rollout in Wyoming last month.

There could be changes, however, in how federal grazing allotments that overlap grouse habitat are managed as a result of the new grouse plans.

In Colorado, the Dakotas and most of the states covered by the plans, federal grazing allotments would need to be managed to achieve certain habitat conditions benefitting the grouse and its sagebrush habitat.

In Utah, there are limitations on surface disturbance during specific seasons that "could impact the time during which range improvements, such as stock ponds to improve livestock distribution, could be constructed, with some potential impacts on management time and cost for permittees," according to the plan.

And in Wyoming, livestock grazing on the 170 grazing allotments administered by the Forest Service in the Bridger-Teton and Medicine Bow national forests and Thunder Basin National Grassland would be managed to "maintain residual herbaceous grass height for overhead and lateral concealment" of grouse during "nesting and early brood rearing life stages." Forest Service land-use plans elsewhere could also be amended to include grazing use guidelines that "could include modification of grazing strategies or rotation schedules, changes to the season of use, changes to kind and class of livestock, closure of a portion of an allotment, or reduction of livestock numbers."

But the biggest changes could come when ranchers apply to renew their grazing allotments, particularly if they overlap grouse habitat.

For example, the federal plan in Colorado calls on the Forest Service to consider "closure of grazing allotments, pastures, or portions of pastures, or managing the allotment as a forage reserve as opportunities arise under applicable regulations, where removal of livestock grazing would enhance the ability to achieve desired habitat conditions."

BLM’s review of grazing permit and lease renewals and modifications mandated by the National Environmental Policy Act would require the agency to evaluate whether they meet specific sage grouse habitat objectives under the plan.

At the very least, ranchers grazing livestock in primary grouse habitat are going to see a lot more of BLM. The plans call for the agency to "prioritize field checks" in priority grouse habitat "to ensure compliance with the terms and conditions of grazing permits."

While some of these changes could be significant, they’re being done to improve ranchland health, and "well-managed grazing supports not only ranching families, it also supports sage grouse," Bonnie said.

Bonnie vowed that the Forest Service will "work with ranchers to phase these amendments in over time."

"It’s important to know that this isn’t a one-size-fits-all approach," he added. "We’re going to work at a local level to craft these in a way that work for ranchers, and of course for sage grouse as well."