Where the sage grouse roam, Part III: Will new regulations threaten Northwest Colorado’s energy economy?
June 27, 2015
Craig — At a time when city and county officials are scrambling to find ways to diversify Moffat County's economy to ensure its survival into the future, increased regulation designed to preserve sage grouse habitat could threaten to close the door on future oil and gas development.
Whereas ranching is considered to be compatible with conservation efforts, oil and gas development is more disruptive to the bird. It therefore faces steeper regulations in the Bureau of Land Management and U.S. Forest Service's plan — titled the Northwest Colorado Greater Sage-Grouse Proposed Land Use Plan Amendment and Final Environmental Impact Statement — released in May.
Employees of Jonah Energy stand by a drilling rig in the Jonah Field in southwestern Wyoming in April. The footprint created by rigs such as this one — as well as the roads needed to access them and the resulting oil and gas wells they leave behind — are prime examples of “surface occupancy” referred to in the Bureau of Land Management greater sage grouse plan. The plan would prohibit surface occupancy in priority sage grouse habitat and would curtail surface occupancy in general habitat within two miles of a lek and during the spring and early summer months. No new leasing would be allowed within a mile of an active lek.Lauren Blair
The BLM plan would affect more than 1.1 million acres of federally-managed BLM surface lands in Moffat County, according to the BLM EIS Table 1.2, or about 38 percent of the county's 3 million acres.
When it comes to drilling, the proposed regulations apply not only to federally-owned surfaces, but also to federally-owned minerals, which often lie beneath privately held land, something known as a split estate.
The BLM manages about 1.8 million acres of federally-owned subsurface minerals in Moffat County, according to the BLM EIS Table 1.3, or about 60 percent of Moffat County.
Recommended Stories For You
The BLM developed the plan in large part to preclude the need for a listing under the Endangered Species Act by providing regulatory certainty to the U.S. Fish and Wildlife Service that the bird's habitat is being protected.
Even though BLM is working alongside local and state governments, state wildlife agencies, ranchers and the oil and gas and mining industries to keep the bird off the endangered species list, the proposed plan has left some stakeholders unhappy. They say regulations for future oil and gas development are too restrictive.
In an effort to balance conservation with development, the BLM sought input from a total of 22 local government agencies — including commissioners from Moffat, Routt, Rio Blanco, Garfield, Jackson and Grand counties and others — in building the plan over the past three years. But Moffat County Commissioner Chuck Grobe said he sees little of their efforts in the final plan.
"The frustrating part about this whole thing is that… this cooperating agent status isn't working because we're being dictated to what's in the plan," Grobe said, explaining that he felt that the Washington D.C. BLM office was calling the shots. "They didn't listen to us at all."
Though most agree that an endangered species listing would still be worse for industry and local economies — which was a looming possibility until Congress temporarily blocked Fish and Wildlife's ability to list the bird — the proposed plan has Grobe and others worried about future development prospects. The Moffat County Commissioners will submit a formal protest to the plan before the close of the 30-day protest period Monday.
Still others recognize the plan as an effective tool to manage the bird's habitat into the future.
"There's also a fair amount of management flexibility built into the plan, something in Moffat County we've been hoping to see implemented on federal lands for a long, long time," said Luke Schafer, West Slope Advocacy Director for Conservation Colorado, based in Craig. "I can understand there's going to be consternation about the regulatory mechanisms of this plan, but I think everyone also understands there is the need to have regulatory certainty."
The proposed plan could still change in response to protests and comments submitted by Monday, and to the Governor's Consistency Review due in late July. The plan is expected to be recorded and go into effect by late July or August.
A finicky bird on all fronts
Unlike the crow or the raven — smart, wily and capable of devising ways to take advantage of human development — the greater sage grouse is a not a bird that keeps pace with changing times.
Rather, the ancient bird remains driven by instinctual patterns that determine where it will go to mate, nest and over-winter.
"Its brain is smaller in capacity than its two eye balls put together, so there's not a lot of thought process, but it's a perfect bird," said Brian Rutledge, vice president and policy advisor for National Audubon Society's Rocky Mountain region. "People say, well, it's so stupid. They've been around for 40 million years, folks, doing really well on a habitat that we've about wiped out in a hundred."
Wildlife biologists have produced evidence demonstrating that the bird is averse to human disturbance, but it remains unpredictable in terms of how it reacts to human impacts. Anecdotal accounts of birds strutting on roads or even airport runways during the spring mating season abound, demonstrating that the sage grouse is sometimes apparently oblivious to human impacts, especially when driven by hormones.
Fracking is a noisy process that requires the use of multiple powerful trucks. Here, six trucks with 2,000 horsepower each line up — with another line of trucks behind them — to create the pressure required to shoot a water-based solution into the rock a mile or two beneath the surface. New BLM regulations would prohibit vertical drilling in priority sage grouse habitat because of the disturbance caused by the drilling and fracking process.Lauren Blair
Colorado Parks and Wildlife biologists are currently conducting research to understand the impacts of oil and gas production on sage grouse populations and how best to regulate it.
The process of drilling for oil and gas is troublesome to resident sage grouse populations for many reasons:
• Development of a well requires access, meaning more roads and traffic through the sagebrush, contributing to habitat loss and fragmentation.
• Drilling rigs and fracking operations are noisy, which when placed near a lek, or mating ground, can disrupt the birds' distinct mating ritual. Some scientists have found evidence that the noises made by the male bird while strutting are central to the hens' selection of a mate, thus making the birds highly reliant on hearing subtle sounds.
• Tall structures like a drilling rig or the resulting well housing provide perching places for predators of sage grouse, such as eagles, or crows and ravens, which can wipe out entire nests by eating their eggs or targeting chicks.
"They require intact habitat," Schafer said. "Of what's left of unfragmented blocks of sagebrush in Colorado, (Moffat County) is really the last place where you have these fairly substantial blocks left and that's why we have fairly healthy grouse populations."
Protecting habitat, limiting development
The Northwest Colorado Greater Sage-Grouse Proposed Land Use Plan Amendment and Final Environmental Impact Statement encompasses 10 counties and sets parameters for how and where future development can happen.
"Land use allocations in the Proposed Plan would limit or eliminate new surface disturbance in Priority Habitat Management Areas (PHMA), while minimizing disturbance in General Habitat Management Areas (GHMA)," according to the plan's executive summary.
The plan introduces new regulations in sage grouse habitat for land uses such as oil and gas drilling, rights-of-way — including transmission lines or pipelines — roads, above-ground structures and livestock grazing.
By the numbers: Colorado
About 4.1 million acres in Colorado serve as greater sage grouse habitat, according to a BLM fact sheet, of which about 1.7 million acres falls under BLM and Forest Service jurisdiction (Forest Service is responsible for only a tiny portion equaling about 20,000 acres).
Of these 1.7 million acres, about 53 percent is considered priority habitat — or land that is key to the survival of sage grouse populations — and 42 percent is identified as general habitat, requiring some special management but with less stringent restrictions than priority habitat. Another 5 percent is classified as "other."
Statewide, priority sage grouse habitat only overlaps with high and medium oil potential areas by a small margin, according to BLM. About 564,000 acres — or 4 percent — of about 12.6 million high and medium oil potential would be subject to BLM's proposed regulations for priority habitat.
Approximately 37 percent of Colorado’s priority habitat management areas on federal lands and minerals are already covered by existing leases, most of them for oil and gas. Of these leases, only about 6 percent are actively producing, according to a BLM fact sheet.
By the numbers: Moffat County
Moffat County holds a majority of sage grouse habitat in Colorado, and is the target of about two thirds of the sage grouse habitat that is addressed in the plan, according to David Boyd, Public Affairs Specialist for the BLM Northwest Colorado District.
Moffat County oil and gas numbers
• Total oil and gas minerals: 2,148,277 acres federal minerals
• Total no. of leases: 673
• Total no. of leases held by production: 135
• Total acres of leases: 556,308
• Acres of leases held by production: 76,152
Moffat County is home to nearly 2,270,00 acres of designated sage grouse habitat, or about 75 percent of the county, according to the BLM EIS Table 1.2. Of that land, nearly 1.3 million acres is priority habitat — about 43 percent of Moffat County.
Just under half of priority habitat in the county is managed by BLM, meaning about 21 percent of the county's surface area would be subject to the plan's more stringent regulations for priority habitat, according to the BLM EIS Table 1.2.
Additionally, split estates, or private lands that sit on top of federal minerals, would be subject to the regulations for fluid mineral development if they lie in sage grouse habitat areas.
In Moffat County, about 70 percent of minerals beneath private lands are federally-owned, according to Boyd, and would be subject to the plan's regulations for oil and gas drilling.
Though Moffat County only has about 600 producing oil wells compared to neighboring Rio Blanco County's 2,900 and Garfield County's 11,000 wells, it has potential for future development.
"The oil and gas development in Moffat County has been more speculative to date than the development in the counties to the south drilling in the Piceance Basin," Boyd said.
Since the start of the planning process in 2012, BLM has deferred oil and gas leases from approximately 195,500 acres of priority habitat in Moffat County and from an additional 447 acres of general habitat, according to Boyd.
Proposed regulations for sage grouse habitat
To address the threats posed to the sage grouse by further oil and gas development, the proposed plan outlines the following basic regulations for new oil and gas leases:
• No new leasing would be allowed within one mile from active leks in both priority and general habitat.
• A "No Surface Occupancy" rule would be instituted in all priority habitat areas, meaning it would remain free of drill rigs, new structures and roads. Exceptions could be granted dependent on impacts to sage grouse and with unanimous agreement between the BLM, Colorado Parks and Wildlife and U.S. Fish and Wildlife.
• The NSO rule would apply in general habitat up to two miles from active leks, however with more flexibility offered by way of waivers, modifications and exceptions. The remainder of general habitat would be open to leasing and surface occupancy with timing restrictions in spring and early summer.
"No activity associated with construction, drilling, or completions within 4 miles from active leks during lekking, nesting and early brood-rearing (March 1 to July 15)," according to the plan description.
• A 3-percent disturbance cap would limit overall surface disturbance in priority habitat to 3 percent of the total habitat acreage. The cap would apply to all forms of surface disturbance, including oil and gas drilling, well pads, roads and power lines, including pre-existing disturbance. Disturbances would also be limited to one per 640 acres in order to minimize the overall impact of development on the bird.
Buried in regulation?
Compared to nearby oil boom regions such as Garfield County, it may not appear that oil and gas is central to the economic future of Moffat County, however oil and gas industry representatives say there are promising reserves beneath the ground.
"The long term is very real and very significant natural gas reserves in the Sand Wash Basin (in northwestern Moffat County)… There is a tremendous natural gas resource in this area that will be produced at some future price point, so for us, that's as big a concern as oil," said David Ludlam, Executive Director of West Slope Colorado Oil and Gas Association.
Low prices and difficult-to-extract fluid minerals have kept much of Moffat County's oil and gas reserves locked under the ground. However, Ludlam said it's almost inevitable that future technology advancements would not only open up major reserves in the area by making it economically feasible to retrieve them, but allow for less surface disturbance and more site flexibility in the process.
"When you look at what technology has done in the last few decades, the ability for leasers to reach those minerals without any surface disturbance is not only possible but likely inevitable," said Ludlam. "It is not inconceivable at some point in the future that you could access those minerals under a lek from an extended distance away that would have zero surface impact."
Horizontal drilling techniques are already being utilized in Colorado, Wyoming and other western states, and the technology is advancing quickly. The method allows oil and gas companies to drill a well a mile or two straight down and from that point deep within the earth, to drill horizontally in multiple directions. By essentially drilling multiple wells through one access point, the process results in less surface disturbance relative to the amount of fluid minerals accessed.
Boyd from BLM states that priority habitat (outside of the one-mile lek radius) could be leased and developed through directional drilling in order to meet the no surface occupancy stipulation — and certain exceptions to that rule could be granted on a site-specific basis — however the one-mile circle around leks would remain closed to leasing.
"We estimate that would result in about 69,000 acres closed to leasing in Moffat County," Boyd said.
Given the potential for reaching fluid minerals under a lek without causing any surface disturbance, Ludlam and Grobe both question the need for the one-mile, no-new-leasing rule around active leks. They both agree the no surface occupancy rule is appropriate, but question why the minerals themselves would be off-limits to leasing even if they could be extracted from miles away.
"Having no exceptions, where those minerals are not available for leasing and not allowing for future technology to access them, these are things that don't make a lot of sense," Ludlam said.
What could truly drive oil and gas developers elsewhere, Ludlam said, is the time and cost associated with complying with the heightened regulations. He even has doubts as to whether valid, existing lease rights — which the BLM will honor — will remain economically feasible to develop.
"In reality, you have to do things to develop that will add costs and delays to valid, existing lease rights that will make them economically untenable and not competitive, especially compared to other areas around the country," Ludlam said.
Grobe harbors the same concern that sage grouse regulations could drive companies to other counties or other states altogether.
"I think it's gonna put the brakes on oil and gas development," Grobe said. "BLM says, 'Oh no, this won't prevent you from drilling,' but the amount of regulations and the hoops that people have to go through, why would they do that, when they could go to Weld County and drill… with just state regulations?"
Other logistical challenges for companies would include creating access to drill sites (which means more roads) and navigating the patchwork of terrain that would still be open to drilling.
"For an oil and gas company to be effective and efficient, it needs contiguous land," Ludlam said. "When you have areas that are patchwork, it makes it more difficult to make the project cost-effective."
3-percent disturbance cap and TransWest
The 3-percent disturbance cap in priority habitat is another matter of concern for Grobe, as it would cut off new development in priority areas if the total number of acres disturbed reached 3 percent of the overall area.
"It was 3 percent, they wouldn't even discuss it," Grobe said. "There's no science behind that 3-percent disturbance cap, they can't justify it."
However, Schafer sees the cap as one of three key pieces of BLM's overall plan to protect the integrity of the bird's habitat:
- to limit the density of disturbance by allowing only one well, for example, per every 640 acres,
- to limit the cumulative effects of disturbance with the 3-percent cap,
- and to draw a four-mile, tiered buffer around leks to limit or prohibit surface disturbance in key breeding, nesting and brood-rearing habitat.
"It's pretty rare to see them put numbers around anthropogenic disturbance and cap it at 3 percent. It's based on a lot of data over the last 10 years," Schafer said.
The 3-percent cap is especially frustrating to Grobe in light of the proposed TransWest Express Transmission Project which is slated to pass through Moffat County to connect Wyoming wind power with Las Vegas markets. The TransWest lines are exempted from BLM's Northwest Colorado sage grouse plan — BLM said they will meet stringent sage grouse regulations in their own EIS — but the power lines nonetheless count against Moffat County's 3-percent cap.
By BLM calculations, they would only add tiny fractions of a percent towards the cap, but Grobe and others question those calculations.
"Right now the federal government is giving them a pass through Moffat County because everything else has to (count against the cap) after the power line goes through," Grobe said. "We don't care if it goes through, but don't give them all our disturbance cap."
Schafer, too, harbors major concerns about TransWest's exemption from the Colorado plan and its preferred route, which would border and pass through some of Moffat County's prime sage grouse habitat.
Overall, there is still time for the plan to change. John Swartout, Gov. John Hickenlooper's sage grouse advisor, said that he and the governor met with Secretary of the Interior Sally Jewell Thursday to review their concerns with the plan's regulations, including concerns about rights of way (such as transmission lines), oil and gas regulations and using hard data gathered by the state instead of federal models to evaluate the status of the bird.
"She's genuinely trying to work these issues out," Swartout said. "We're just trying to make our plan specific to Colorado and our unique terrain and habitat: less a one-size-fits-all model across all the states and more what should happen specific to Colorado."
U.S. Rep. Scott Tipton, R-Colorado, District 3, also wants to see local and state governments to implement their own conservation plans for sage grouse.
"For those of us that live in the West… we're seeing communities that are being dramatically and devastatingly impacted by policies coming out of Washington and we see a better way," Tipton said in a phone interview with the Daily Press.
Tipton is a co-sponsor of the Sage Grouse Protection and Conservation Act in the House, also introduced to the Senate by U.S. Sen. Cory Gardner, R-Colorado. The bill would prohibit Fish and Wildlife from listing the greater sage grouse under the Endangered Species Act for at least six years and requires the Bureau of Land Management to halt their planning process and wait to adopt the state plans instead.
"This is not a political issue, it's a common sense issue about what the goal ought to be: to measure the progress of efforts at the state level, the local level and the private level towards the goal of enhancing the species," Tipton said. "We have to give it a chance to work."