Moffat County commissioners challenge BLM decision on TransWest power line project
May 17, 2018
CRAIG — During its regular meeting Tuesday, the Moffat County Board of County Commissioners signed a letter challenging the Bureau of Land Management’s authority to require mitigation for impacts to certain areas in the path of the proposed TransWest Express power line.
In the letter to state directors of the Colorado and Wyoming Bureau of Land Management offices, the county challenges the BLM’s legal authority to require compensatory mitigation in areas inventoried as Lands with Wilderness Characteristics within the path of the proposed TransWest Express transmission line.
The proposed power line would carry 3,000 megawatts of wind energy from southwest Wyoming to the Las Vegas area, where it would be distributed to consumers in Nevada, Arizona and southern California. The power line won federal approval from the BLM in December 2016 and the Western Area Power Administration in February 2017. A TransWest spokesperson said the company expected to complete needed permits and permissions by next year and to begin construction in late 2019 or 2020. The company aims to send electricity through the wires by 2022.
Moffat County’s concerns
The mitigation requirements for Lands with Wilderness Characteristics are outlined in a document appended to the BLM's Record of Decision on the power line, which was released in December 2016.
The county holds that BLM does not have the authority to require mitigation in these lands, because, though they have been inventoried as Lands with Wilderness Characteristics, the areas have not undergone the BLM's land use planning process. The letter requests "immediate corrective action" from the agency.
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Along with references to case law governing mitigation, the letter states the Federal Land Policy and Management Act "prevents BLM from taking actions inconsistent with provisions of a land use plan" and that the National Environmental Policy Act "does not require BLM to adopt a full-blown mitigation plan."
"These Land with Wilderness Characteristics were inventoried lands," said Moffat County Director of Natural Resources Jeff Comstock. "We've always opposed the ability for anybody to manage based off of an inventory. We always felt that it should go through a land-use planning process before it could be managed. We've always been fearful the BLM would manage off an inventory without doing a land-use planning process, and we've seen our first example of that, right here in the TransWest power line."
However, Alex Daue, assistant director of energy and climate at the Wilderness Society, said the two laws cited in the county's letter are the ones that give the BLM the authority to require mitigation on these lands.
"Under Federal Land Policy and Management Act and National Environmental Policy Act, BLM has the obligation to consider mitigation for impacts to resources like Lands with Wilderness Characteristics and the authority to require it," Daue wrote in an email.
The approved route of the power line follows Seven Mile Ridge through central Moffat County until the line intersects U.S. Highway 40. Then, the proposed power line parallels the highway west into Utah. In 2011, Moffat County commissioners signed a joint resolution supporting the Seven Mile Ridge route with Wyoming's Carbon and Sweetwater counties. The Wilderness Society was a major proponent of an alternate route for the power line along Colorado Highway 13, which Daue said would've had fewer impacts to wildlands and greater sage-grouse.
For that reason, Daue thinks the proposed impacts to Lands with Wilderness Characteristics — and the mitigation the BLM is calling for in response to them — were avoidable.
In the commissioners’ regular meeting Tuesday, county officials also expressed concern that they believe the BLM's management of inventoried lands sets a dangerous precedent.
"I'd like to emphasize this really doesn't have anything to do with TransWest," Comstock said, as he presented the letter to commissioners. "It just happens to be that TransWest is the first scenario where wilderness character that's been inventoried is being managed for. This could happen in grazing. It could happen in recreation. This is a precedent-setting issue of management for wilderness character without authority."
"This is scary for our county, which incorporates so much BLM and public lands within it," Commissioner Don Cook said.
The state administrators of the BLM in both Colorado and Wyoming are set to meet Friday to discuss the county's concerns, said Sharon Knowlton, the BLM's project manager for the TransWest Express Project, who is based out of its Wyoming state office in Cheyenne.
Altering the decision
State and local BLM offices do not have the power to change these decisions, Knowlton said. To make the changes the county is requesting, the BLM's federal office would have to conduct supplemental reviews under the National Environmental Policy Act.
"We are going to work hard to respond to the concerns that Moffat County has. They're an important cooperator," Knowlton said. "Even here in Wyoming, we care very much about the relationship that BLM has with its counties."
The administrative process used in the Record of Decision also complicates the situation.
Usually, decisions are subject to an appeal period, during which stakeholders can appeal the BLM's decision to the U.S. Department of Interior's Interior Board of Land Appeals, Knowlton said. If the IBLA supports the original decision, appeals then can be made in Federal District Court.
"In this decision, the applicant (TransWest) specifically requested that the secretary's office sign it," Knowlton said. "The applicant did not want to have this decision be appealable to IBLA."
Because the Record of Decision on the TransWest project was signed by the Interior's federal office, appeals to the decision must be heard in Federal District Court.
Avoiding court is part of the reason the county decided to write the letter in response to the December 2016 decision now, Comstock said.
"If we can fix these problems administratively, the taxpayers have a lot to gain, if we don't have to go through the court system," he said. "We didn't have an administrative environment that wanted to address them under (former President Barack) Obama. We do have an administrative environment that wants to address these issues under (President Donald) Trump."
TransWest has expressed gratitude to Moffat County for its support of the project.
"Over the years, TransWest has sincerely appreciated Moffat County's support for the TWE (TransWest Express) Project, along with the county's active involvement in the federal environmental analysis process as a well-informed cooperating agency," TransWest spokesperson Kara Choquette wrote in an email. "Their recent letter underscores how Moffat County understands the impacts of federal decisions, not only to individual projects, but also to other potential public land and planning projects in Moffat County. We hope BLM can address Moffat County's concerns."