The Crestone Eagle, January 2008:

U.S. District Court temporarily halts drilling in Baca Wildlife Refuge
by Ceal Smith

Citizens and wildlife in the San Luis Valley were granted important protections for the Baca National Wildlife Refuge (NWR) when Colorado Federal District Court Judge Walker D. Miller ruled on Nov. 29 that the US Fish and Wildlife Service “shall prohibit all ground disturbing activities related to the exploration and development of the mineral estate underlying the Baca National Wildlife Refuge during the National Environmental Policy Act process.”

Judge Miller issued the ruling in response to a lawsuit filed in May 2007 by the San Luis Valley Ecosystem Council (SLVEC) against U.S. Fish and Wildlife Service (USFWS) to address Canadian owned Lexam Explorations, Inc’s. (Lexam) “high-risk” proposal to drill two 14,000-foot oil or gas wells in the newly established Baca NWR.

The suit asked the Federal District Court to ensure that drilling activities cease until potential impacts are fully assessed and the public is allowed to participate in the formal decision-making process as required by federal laws. These laws, including the National Environmental Policy Act (NEPA), require USFWS to show whether a proposed action serves a legitimate purpose and to disclose significant environmental impacts, alternatives and mitigation measures.
USFWS took the initial position that it had no regulatory authority over Lexam’s activities due to the dual ownership of surface and mineral rights, also known as a “split-estate.” SLVEC’s lawsuit asserts that USFWS has ample legal authority, based on Colorado and federal laws, to protect the Baca NWR—even where the mineral interest is owned privately. The Court’s ruling is a major victory that halts Lexam’s plans to drill in the Baca NWR until a full examination of potential impacts is completed under NEPA, a process that could potentially take years.

The NEPA process is now in effect on several fronts. In Aug. 2007 USFWS initiated a 30-day scoping period to identify public concerns about the drilling as required by NEPA. The agency was flooded with almost 50,000 letters, virtually all opposed to the drilling. These citizen concerns, and others identified by USFWS and other affected agencies, form the basis of the impacts and alternatives to be addressed in the forthcoming draft Environmental Assessment (EA).

Although USFWS was expected to release the draft EA for public review in early December, there have been a series of delays. One possible reason for this is the failure of USFWS to engage other Federal and non-federal agencies in the NEPA process in a timely manner. The Council on Environmental Quality (CEQ), which is responsible for overseeing NEPA, requires that Federal agencies implement NEPA “in cooperation with State and local governments.” CEQ cites many benefits of cooperating agency participation including: early disclosure of important information; application of technical expertise; avoiding duplication with other Federal, State, Tribal and local procedures; and establishing a mechanism for addressing intergovernmental issues.

The Saguache Board of County Commissioners (BOCC) expressed an interest in being a cooperating agency with USFWS early in the process. In November they sent a letter to the USFWS Washington office requesting a formal cooperating agency agreement. They did not receive a response and sent a new request to the USFWS District office (see: www.saguachecounty.net for a copy of the letters) on Dec. 20. Citizens groups have requested that USFWS delay the release of the draft EA in order to give the County, and other eligible agencies time to formalize cooperating agency agreements.

On the State level, it’s not yet known how the Court’s decision and NEPA will affect the Colorado Oil and Gas Conservation Commission’s (COGCC) process of approving Lexam’s drilling permits. The COGCC is pressuring the County to comply with the old industry-biased rules, accept the same flawed conditions applied to Lexam’s original permits and sign an MOU with Lexam.

There are enormous gaps in understanding about sensitive species, wetlands and the potential impacts of drilling 14,000’ through the complex Closed Basin—North America’s largest contiguous—aquifer system. Until an Environmental Impact Statement (EIS) or Comprehensive Conservation Plan is completed for the Baca NWR, these impacts cannot be determined.

Both NEPA and the COGCC new rule-making processes could lead to more effective protection for the vital resources of the Baca NWR, as well as the health, safety and welfare of the affected communities. Citizens groups are requesting delay in approval of Lexam’s permits until after the NEPA process is complete and COGCC has had the chance to review the 18 proposed permit conditions under the spirit, if not the actual rules, currently being developed.

For more information about NEPA or for a schedule of upcoming actions and events, call 256-5780, email: slvwater@theriver.com or visit the Lexam webpage at www.slvec.com.

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