[Federal Register Volume 70, Number 15 (Tuesday, January 25, 2005)]
[Notices]
[Pages 3550-3557]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-1315]
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DEPARTMENT OF THE INTERIOR
Bureau of Land Management
Notice of BLM Director's Response to an Appeal From the Governor
of New Mexico Regarding the Resource Management Plan Amendment for
Federal Fluid Minerals Leasing and Development in Sierra and Otero
Counties
AGENCY: Bureau of Land Management, Interior.
ACTION: Notice of availability.
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[[Page 3551]]
SUMMARY: In accordance with 43 CFR 1610.3-2(e), the Bureau of Land
Management (BLM) is publishing the reasons for BLM's rejection of the
Governor of New Mexico's appeal regarding the Resource Management Plan
Amendment (RMPA) for Fluid Minerals Leasing and Development in Sierra
and Otero Counties, New Mexico.
FOR FURTHER INFORMATION CONTACT: Jordan Pope, Acting Group Manager;
Planning, Assessment, and Community Support Group, 1620 L Street NW.,
Washington DC 22036. Telephone number (202) 452-5048. Email address
[email protected].
SUPPLEMENTARY INFORMATION: In response to the Proposed RMPA/Final
Environmental Impact Statement (FEIS), dated December 2003, the
Governor of New Mexico submitted a Consistency Review that recommended
adopting an alternative plan he had developed. The Governor's
Consistency Review helped lead to the May 2004 PRMPA/FEIS Supplement
that included the proposed closure of 35,790 acres. This closure was a
change from the PRMPA/FEIS where those acres were to be withheld from
leasing for five years and re-evaluated. The BLM New Mexico State
Director declined to accept the other recommendations made by the
Governor, but replied with a written response addressing issues raised
in the Consistency Review. The Governor appealed the State Director's
decision not to fully adopt his alternative plan to the BLM Director.
The BLM Director has issued a final response affirming the State
Director's decision. The response to the Governor is printed below in
its entirety.
Dated: January 14, 2005.
Francis R. Cherry, Jr.,
Acting Director.
Honorable Bill Richardson,
Governor of New Mexico, State Capitol, Santa Fe, New Mexico 87503
Dear Governor Richardson: This appeal concerns the ongoing land
use planning amendment process for Sierra and Otero Counties in New
Mexico. Currently, fluid minerals \1\ operations are guided by the
Resource Management Plan for the White Sands Resource Area (White
Sands RMP). The portion of the White Sands RMP addressing fluid
minerals has not been updated since the plan was first promulgated
in 1986. Under the existing planning direction, the vast majority of
land managed by the Bureau of Land Management (BLM) in Sierra and
Otero Counties can be nominated and leased for oil and gas
exploration and development. The BLM New Mexico State Office, as
part of its oil and gas management discretion, has chosen not to
lease any public land since 1998 when it initiated this planning
amendment process in response to an increase in leasing nominations.
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\1\ Primarily oil and natural gas.
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Governor Richardson, you have appealed the decision of BLM State
Director Linda Rundell made in accordance with BLM planning
regulations at 43 CFR 1610.3-2(e).
Background
In October 2000, the BLM Las Cruces, New Mexico Field Office
released the Draft Resource Management Plan Amendment and
Environmental Impact Statement for Federal Fluid Minerals Leasing
and Development in Sierra and Otero Counties (Draft RMPA/EIS). The
BLM began laying the groundwork for this draft in October, 1998 with
the initiation of the National Environmental Policy Act (NEPA)
scoping process. After releasing the Draft RMPA/EIS, BLM solicited
and accepted public comments for an extensive period of time. BLM
received numerous comments, and these comments helped lead to
changes that BLM then incorporated in the December, 2003 Proposed
Resource Management Plan Amendment and Final Environmental Impact
Statement for Federal Fluid Minerals Leasing and Development in
Sierra and Otero Counties (Proposed RMPA/EIS).
BLM New Mexico State Director Linda Rundell made the Proposed
RMPA/EIS available to you and the public. On March 5, 2004, you sent
the State Director your Consistency Review of and Recommended
Changes to the United States Department of the Interior, Bureau of
Land Management's Proposed Resource Management Plan Amendment and
Final Environmental Impact Statement for Federal Fluid Minerals
Leasing and Development in Sierra and Otero Counties (Consistency
Review and Recommendations or CRR). There you recommended that the
BLM adopt a management alternative that was similar to an
alternative (Alternative B) that was first considered and analyzed
by the BLM in the Draft RMPA/EIS.
State Director Rundell subsequently responded to your
Consistency Review and Recommendations on May 19, 2004. Although the
State Director found that you had not presented any inconsistencies
that required BLM to make further modifications, she did make a
change to BLM's proposed action based upon your recommendations. The
BLM's proposed action was changed to close 35,790 acres of desert
grasslands and potential Aplomado falcon habitat to fluid minerals
leasing. BLM described this change in the Supplement to Proposed
Resource Management Plan Amendment and Final Environmental Impact
Statement for Federal Fluid Minerals Leasing and Development in
Sierra and Otero Counties (Supplement). The New Mexico BLM made the
Supplement available to the public and posted it on the BLM Web
site. The State Director also announced a formal public comment
period associated with the Supplement that extended from May 28,
2004 until June 28, 2004. On June 16, 2004, you sent a letter
appealing the State Director's decision to me in Washington, DC, and
I am now responding to that appeal.
Relevant Statutes and Regulations
In deciding this appeal, I am guided by the BLM's planning
regulations in 43 CFR 1610.3-2 (Consistency requirements). These
regulations implement section 202(c)(9) of the Federal Land Policy
and Management Act of 1976 (FLPMA) which states in part:
In the development and revision of land use plans, the Secretary
shall * * * to the extent consistent with the laws governing the
administration of the public lands, coordinate the land use
inventory, planning, and management activities of or for such lands
with the land use planning and management programs of other Federal
departments and agencies and of the States and local governments
within which the lands are located * * * by among other things,
considering the policies of approved State and tribal land resource
management programs. In implementing this directive, the Secretary
shall, to the extent he finds practical, * * * assure that
consideration is given to those State, local and tribal plans that
are germane in the development of land use plans for public lands;
assist in resolving, to the extent practical, inconsistencies
between Federal and non-Federal Government plans, and shall provide
for meaningful public involvement of State and local government
officials, both elected and appointed, in the development of land
use programs.* * * Such officials in each State are authorized to
furnish advice to the Secretary with respect to the development and
revision of land use plans. Land use plans of the Secretary under
this section shall be consistent with State and local plans to the
maximum extent he finds consistent with Federal law and the purposes
of this Act.
The ``Consistency requirements'' regulations state that RMP
amendments shall be consistent with officially approved or adopted
state ``resource related plans, and the policies and programs
contained therein * * * so long as the guidance and resource
management plans are also consistent with the purposes, policies and
programs of Federal laws and regulations applicable to public
lands.'' 43 CFR 1610.3-2(a). Also, in the absence of such plans,
RMPs shall ``to the maximum extent practical'' be consistent with
officially approved and adopted state ``resource related policies
and programs.'' 43 CFR 1610.3-2(b). After a BLM State Director makes
a proposed amendment available to a governor, the regulations
provide a special means for noting inconsistencies and making
recommendations:
The Governor(s) shall have 60 days in which to identify
inconsistencies and provide recommendations in writing to the State
Director. * * * If the State Director does not accept the
recommendations of the Governor(s), the State Director shall notify
the Governor(s) and the Governor(s) shall have 30 days in which to
submit a written appeal to the Director of the Bureau of Land
Management. The Director shall accept the recommendations of the
Governor(s) if he/she determines that they provide for a reasonable
balance between the national interest and the State's interest. The
Director shall communicate to the Governor(s) in writing and publish
in the Federal Register the reasons for his/her determination to
[[Page 3552]]
accept or reject such Governor's recommendations.
43 CFR 1610.3-2(e). While State Directors should always keep
generally apprised of state, local, and tribal policies, plans, and
programs, State Directors ``shall not be accountable for ensuring
consistency if they have not been notified, in writing, by State and
local governments or Indian tribes of an apparent inconsistency.''
43 CFR 1610.3-2(d).
Thus, in reviewing this appeal, I have focused on your
Consistency Review and Recommendations that you first submitted to
State Director Rundell and the points raised in your appeal letter.
I will first consider whether you have raised actual inconsistencies
with officially approved state resource related plans, policies, and
programs. If an actual inconsistency is raised, I will then consider
whether a recommendation addresses that inconsistency and provides
for a reasonable balance between the national interest and the State
of New Mexico's interest.
Your appeal letter and Consistency Review and Recommendations
also address a variety of issues in addition to possible
inconsistencies with officially approved state resource related
plans, policies, and programs. For example, you have expressed your
view regarding BLM's adherence to multiple use management under the
Federal Land Policy and Management Act of 1976 (FLPMA) and shared
suggestions regarding the environmental analysis made pursuant to
the National Environmental Policy Act (NEPA). See e.g., Appeal, pp.
3, 12. It is certainly appropriate to share comments such as these
in the midst of the overall RMP amendment process, but this appeal
procedure is generally designed to address situations where the BLM
proposed action would substantially impede a specific enforceable
state resource related plan, program, or policy that is being
applied on similarly situated non-federal lands. Your comments on
other issues have been noted and considered, and many, if not all,
of these issues have been addressed through the protest process. See
43 CFR 1610.5-2. For purposes of this appeal decision, though, I
will focus on (1) the sections in your Consistency Review and
Recommendations that allege specific inconsistencies with officially
approved resource related State plans, policies, and programs (CRR,
Sec. II); and (2) your recommendations to address these potential
inconsistencies (CRR, Sec. III). I will address your potential
inconsistencies and recommendations in the order you have presented
them in your Consistency Review and Recommendations.
Potential Inconsistencies With Resource Related State Plans, Policies,
and Programs
(i.) Study: Ecoregion-Based Conservation in the Chihuahuan Desert
(CRR, Sec. II. A.)
You have asserted that the Proposed RMPA is inconsistent with a
study entitled Ecoregion-Based Conservation in the Chihuahuan
Desert. CRR, p. 6. This study was a collaborative effort of the
World Wildlife Fund, CONABIO, The Nature Conservancy and other
organizations. Although this may be a very useful scientific study,
it is not a State of New Mexico resource related plan, policy, or
program. It is, therefore, not a potential source for
inconsistencies that are germane to this appeal decision. Your
comments regarding this study have been noted, however, and have
been considered as part of the decision making process for the
proposed amendment.
(ii.) Executive Order 2004-005 (CRR, Sec. II. A.)
After the Proposed RMPA/EIS was released in December 2003, you
signed Executive Order 2004-005 on January 31, 2004. The order
directed several state agencies to begin taking specific actions
relevant to the Otero Mesa and Nutt grassland areas. Any potential
inconsistencies with those agency actions are addressed in
subsequent sections of this decision.
(iii.) Proposal for a National Conservation Area (CRR, Sec. II.
A.)
You have expressed a desire to see Congress designate
approximately 643,754 acres as a National Conservation Area, and
have requested that the BLM manage these areas consistent with your
legislative request. While I appreciate your input on this issue, a
request for federal congressional action is not a qualifying state
plan, policy, or program that is directly relevant to this appeal.
Should such a designation occur in the future, BLM will, of course,
manage those lands in accordance with the congressional mandate.
(iv.) Wildlife Conservation Act (CRR, Sec. II. B.)
You assert that the proposed plan is inconsistent with New
Mexico Statutes sections 17-2-37 through 17-2-46, known as the
Wildlife Conservation Act. That act establishes the New Mexico
Department of Game and Fish (NMDGF) and defines its authority. You
have not identified a specific inconsistency though, and I can find
no inconsistency with the statutes you have cited. Specific NMDGF
wildlife plans are discussed separately below. In your appeal
letter, you have noted habitat fragmentation as a general concern.
Certainly, this is a concern for the New Mexico BLM as well and the
topic has been addressed in the environmental impact statement. See
e.g., Proposed RMPA/EIS, pp. 4-32--4-34. BLM must continually
balance the desire to minimize habitat fragmentation with other
valuable uses that may contribute to fragmentation. This task is
sometimes difficult. I have noted your concerns, but here you have
not outlined a specific inconsistency with a state plan, program, or
policy that is appropriate for this appeal review.
(v.) New Mexico Game Management Plans/Agreements (CCR, Sec. II.
C.)
You have asserted that the ``PRMPA/FEIS'' change to standard
lease terms and conditions in Alternative A (modified) is
inconsistent with several of NMDGF's specific endeavors and plans.''
CRR, p. 13. You have mentioned antelope and aplomado falcon, but
have not cited the existence of any state plan for these animals.\2\
State plans are in place with respect to desert bighorn sheep and
black-tailed prairie dogs. My staff and I have examined these plans
and discuss them below.
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\2\ It should be noted again that the State Director implemented
your recommendation to close several thousand acres of potential
aplomado falcon habitat to leasing.
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Bighorn Sheep Plan
In August 2003, the NMDGF developed the Plan for the Recovery of
Desert Bighorn Sheep in New Mexico: 2003-2013 (Bighorn Sheep Plan).
The Bighorn Sheep Plan lists the Guadalupe and Sacramento Mountains
in Otero County and the Caballo Mountains in Sierra County as
unoccupied historic bighorn sheep habitat and as potential
transplant areas.\3\ Bighorn Sheep Plan, p. 20 & Table 5. While
bighorn sheep do not currently inhabit any BLM lands in the planning
area, New Mexico BLM noted the possibility of bighorn sheep
reintroduction in the Proposed RMPA/EIS. See e.g. Proposed RMPA/EIS
pp. 3-23, 4-37, 4-39. The New Mexico BLM also recognized the
Cornudas Mountains and Brokeoff Mountains as potential future
bighorn habitat, but those areas are not listed as potential
transplant areas in the Bighorn Sheep Plan. See Draft RMPA/EIS, p.
2-23, Table 2-7. You have stated your view that areas suitable for
desert bighorn reintroduction ``need to remain closed to oil and gas
development.''\4\ CRR, p. 14.
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\3\ The Sacramento Mountains do not have historic accounts of
bighorn sheep prior to the 1930s. Bighorn Sheep Plan, p. 20.
\4\ Currently, under the 1986 White Sands RMP that BLM is now
attempting to amend, the majority of these areas are actually open
for potential leasing. Little, if any, leasing has actually occurred
though.
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The Bighorn Sheep Plan goal is to increase bighorn sheep
populations to the point where the species can be removed from the
state endangered species list. Bighorn Sheep Plan, p. 50. The plan
includes a number of strategies for addressing individual issues
related to the overall goal. However, the plan does not include a
schedule of actions related to these strategies. The plan is
described as ``a broad scale document and as such is not specific in
nature.'' Bighorn Sheep Plan, p. iii. Thus, there is no timeframe
for reintroducing bighorn sheep into specific areas, and often
important barriers must be overcome before any transplant projects
could be undertaken. In the Guadalupe and Sacramento Mountains, the
plan notes that currently ``aoudads, domestic sheep, and feral goats
preclude transplants.'' Id., at Table 5. Regarding the Caballo
Mountains, past local public opposition is noted as a barrier to
reintroduction. Id., at p. 20 & Table 5.
Oil and gas activities are not discussed at length in the
Bighorn Sheep Plan (with only a single paragraph devoted to the
topic). Bighorn Sheep Plan, p. 37. The existence of this land use
plan amendment process is noted in this section, but no
recommendations are offered. Id. Interestingly, the plan says that
in other potential habitat areas, federal lands have been withdrawn
from leasing while state lands in the area have been leased. Id. No
special provisions to accommodate bighorn habitat on state lands
with oil and gas
[[Page 3553]]
potential have been described in the Bighorn Sheep Plan or in the
Consistency Review and Recommendations.
The Bighorn Sheep Plan's objective is the following:
To have a minimum of 500 free-ranging desert bighorn sheep in at
least 3 geographically distinct self-sustaining populations, each of
which contains at least 100 bighorn, and to delist the subspecies
under the New Mexico Wildlife Conservation Act at that time.
Bighorn Sheep Plan, p. 50. In spring 2003, there were an
estimated 304 desert bighorn in New Mexico at six locations. Id., p.
6. The state plan identifies 12 potential transplant areas. Id.,
Table 5. Several of these areas have fewer issues that must be
overcome before a transplant could occur than the potential
transplant areas in the Caballo, Guadalupe, and Sacramento
Mountains. Id. Thus, it does not appear that these areas are
essential for achieving the Bighorn Sheep Plan goal.
Additonally, it should be noted that merely making areas
available for leasing in an RMP does not dictate that leases must be
issued and development must occur. These areas have been open to
leasing for decades without activities occurring. Further, under the
standard lease terms and conditions, BLM retains the ability to
prevent the location of surface disturbing activities in
environmentally sensitive areas. The extreme slopes associated with
bighorn sheep terrain, as a practical matter, may often prevent a
conflict with oil and gas activities. See Bighorn Sheep Plan, p. 1
(``Habitat Requirements''). Several thousand acres of bighorn
habitat in the Guadalupe, Sacramento, Cornudas, and Brokeoff
Mountains are already slated for increased protection because they
are included in ACECs, areas nominated for ACEC status, or
Wilderness Study Areas and would be closed to leasing under the
Proposed RMPA. In short, you have not pointed to an actual
inconsistency between the BLM proposed action and the Bighorn Sheep
Plan, and our review does not show any inconsistency.
Both the Bighorn Sheep Plan and the BLM's EIS suggest that, of
the potential transplant locations in BLM's planning area, the
Caballo Mountains possess the best bighorn habitat. See Bighorn
Sheep Plan, p. 20; Proposed RMPA/EIS, p. 4-39. However, the Bighorn
Sheep Plan understates the problems associated with reoccupying this
habitat. For example, in the Caballo Mountains area there are well
over a hundred active mining claims and several hundred miles of
roads crisscrossing the area. Many of these roads are regularly used
by members of the local community. In 1992, BLM worked closely with
the NMDGF to try to bring Bighorn Sheep to the area, but local
opposition eventually prevented a transplant. New Mexico BLM sees no
evidence that this situation has changed.
Nevertheless, the New Mexico BLM State Director has agreed to
defer any leasing in the Caballo Mountains for five years as the
NMDGF continues to evaluate the area for possible reintroduction
efforts. The State Director will then evaluate the progress of
NMDGF, and, if BLM finds it unlikely that reintroduction would occur
within the life of the Bighorn Sheep Plan, the area will be
available for potential leasing at that time. Again, making the area
available for potential leasing would not mean that leasing would
necessarily occur, and historically little interest been expressed
in obtaining fluid mineral leases in the Caballo Mountains.
Black-Tailed Prairie Dog Plan
The NMDGF completed the Conservation Management Strategic Plan
for Black-Tailed Prairie Dogs in New Mexico (Prairie Dog Plan) in
November, 2001. This plan is a ``working plan'' designed to guide
activities ``toward developing a final conservation and management
strategy for black-tailed prairie dogs in New Mexico.'' Prairie Dog
Plan, p. 1. The New Mexico BLM participated in the Working Group
that helped to craft the plan, along with several other federal
agencies, state agencies and non-government organizations. Prairie
Dog Plan, p. 23. The BLM also ``supplied substantial assistance''
with the baseline survey associated with the Prairie Dog Plan.
Prairie Dog Plan, p. 38. The stated goal in the Prairie Dog Plan is
to ``determine and achieve an appropriate balance of conservation
and management'' of prairie dogs to preclude the listing of the
species on either the national or state endangered species lists.
Prairie Dog Plan, p. 10.
The plan outlines a number of broad objectives and lists
potential strategies. One objective is to achieve 97,000 acres of
occupied habitat statewide within 10 years based upon a 6.5% annual
increase. Prairie Dog Plan, p. 16. You have noted this objective as
well as the objective to identify and encourage maintenance of
important existing habitats. CRR, p. 14; see Prairie Dog Plan, p.
12. You have noted the unique characteristics of the small prairie
dog colonies in Sierra and Otero Counties and have described them as
``extremely vulnerable.'' CRR, p. 14. You conclude that the
``habitat loss and fragmentation that will very likely occur under
Alternative A (modified) of the PRMPA/FEIS will be counterproductive
to this plan's population and distribution goal.'' CRR, p. 14.
As you may be aware, the State of New Mexico currently manages
the black-tailed prairie dog as a ``rodent pest'' under the
supervision of the Department of Agriculture, see Prairie Dog Plan,
p. 24, and authorizes State agents to control prairie dog
populations through lethal means on State and private lands. See
generally, N.M. Stat. Ann. Sec. 77-15 (Michie 2004) (``Predatory
Wild Animals and Rodent Pests''). The prairie dog is not managed as
wildlife by the NMDGF. I recognize, though, that the Prairie Dog
Plan represents an important step on the part of the State towards
increasing the population of prairie dogs.
I find that the Proposed RMPA is already consistent with the
goals and strategies of the Prairie Dog Plan. The Proposed RMPA
protects the prairie dog as a ``special status species.'' See
Proposed RMPA/EIS, pp. E-2, E-3. While the Fish and Wildlife Service
recently decided that the black-tailed prairie dog did not warrant
Endangered Species Act listing--which removes it as a formal special
status species'New Mexico BLM will continue to manage the black-
tailed prairie dog as a de facto special status species in Sierra
and Otero Counties under the Proposed RMPA. See 69 FR 51217 (August
18, 2004). Because of their special status species designation, BLM
will specifically analyze and mitigate impacts to occupied prairie
dog colonies in the planning area during site specific NEPA
analysis. This action should further assist NMDGF in reaching the
goals of the Prairie Dog Plan.
(vi.) Noxious Weed Management Act (CRR, Sec. II. D.)
The New Mexico Noxious Weed Management Act authorizes the
creation of weed control districts. You have not described any
inconsistency with the act, its implementing regulations, or
specific weed management plans in your Consistency Review and
Recommendations. The New Mexico BLM has noted the problem of noxious
weeds throughout the planning process and has committed itself to
implementing site-specific preventative measures. See Proposed RMPA/
EIS, Appendix B, p. B-9. In addition, the New Mexico BLM has been an
active partner with state agencies and local officials in the battle
against noxious weeds. In Otero County alone, BLM has annually
provided over $10,000 worth of assistance since 1996 to support weed
control efforts. Your comments on the efficacy of BLM measures has
been noted, but you have not identified an actual inconsistency with
a state plan, policy or program that can be addressed through this
appeal procedure.
(vii.) State Water Plan (CRR, Sec. II. E.)
The New Mexico State Water Plan was released on December 23,
2003. Your Consistency Review and Recommendations provides a general
summary of the New Mexico State Water Plan's goals; however, the
description of potential inconsistencies focuses mainly on
statements from the BLM's Proposed RMPA/EIS without detailing how
these statements are inconsistent with specific provisions in the
State Water Plan. As you note in your appeal letter, these issues
have been raised in separate protests, and they are more properly
addressed in that context. Here, my focus is on any inconsistencies
between the proposed plan and state plans, policies, or programs
rather than on alleged inadequacies of the BLM's NEPA analysis.
The State Water Plan is only quoted once in your discussion.
CRR, p. 20. There you state that an increase in the areas covered by
standard lease terms and conditions is contrary to the following
State Water Plan policy statement: ``The State shall support and
conduct watershed restoration projects with a high potential to
increase the water supply or improve the quality of water.'' You
further explain that the Tularosa-Salt Basin Regional Water Plan
lists watershed restoration as a potential source of up to 15,000
acre-feet of water. Then you conclude, ``Therefore, standard lease
terms and conditions are not adequate to properly safeguard such
opportunities to ensure that future supplies of fresh water are
adequately protected.''
[[Page 3554]]
I do not find an inconsistency between the Proposed RMPA and
State support for watershed restoration. All riparian areas,
wetlands, and playas in the planning area are subject to a quarter-
mile ``No Surface Occupancy'' stipulation. Proposed RMPA/EIS, p. D-
6. Also, standard lease terms and conditions do have resource
protection and reclamation provisions.\5\ Any wells will be subject
to a casing and cementing program designed to protect groundwater
resources and will be properly plugged when operations cease. See
Proposed RMPA/EIS, pp. 4-15 to 4-17. As discussed below, the New
Mexico BLM will continue to require that operators secure necessary
State permits. Further, BLM agrees with you that it is ``extremely
important to implement best management practices in oil and gas
operations' to protect water resources. CRR, p. 21; Proposed RMPA/
EIS, pp. B-4 to B-9.
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\5\ BLM has broad discretion under the standard lease terms to
require actions that minimize environmental impacts. Section 6 of
the standard lease terms requires, ``Lessee shall conduct operations
in a manner that minimizes adverse impacts to the land, air, and
water, to cultural, biological, visual, and other resources and to
other land uses or users. Lessee shall take reasonable measures
deemed necessary by lessor [BLM] to accomplish the intent of this
section.'' Section 12 states, ``At such time as all or portions of
this lease are returned to lessor [BLM], lessee shall * * * reclaim
the land as specified by lessor [BLM] * * *''
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(iix.) Water Quality Control Commission Regulations (CRR, Sec. II.
(F))
Regarding the Water Quality Control Commission, you have cited
section 74-6-12 of the state code, prohibiting water quality
impairments that exceed standards. BLM agrees that water quality
standards should not be exceeded. See e.g., Proposed RMPA/EIS, p. 4-
16. The BLM proposed plan requires casing measures to prevent fluid
or gas migrations that could degrade groundwater. See Proposed RMPA/
EIS, p. 4-15. You have not described where water quality standards
have been exceeded, or even where you believe standards might likely
be exceeded because of the BLM proposed plan. I know the New Mexico
BLM recognizes the importance of water resources, and I will further
instruct local BLM officials to diligently monitor any operations
that may occur in the planning area.
(ix.) Executive Order for Proposed Rules on Pits and Injections
Wells (CRR, Sec. II. (G))
Your January 31, 2004 Executive Order 2004-005 directed that the
Oil Conservation Division (OCD) ``shall adopt a moratorium
prohibiting the use of pits at Otero Mesa'' and ``shall immediately
propose rules to prohibit pits associated with any oil and gas
drilling at Otero Mesa.'' The executive order also directed OCD to
``prepare and propose regulations to implement produced water re-
injection standards and controls.'' As you can imagine, it was
difficult for the State Director to assess consistency with rules
that were not yet even proposed. Yet, even though the executive
order was issued after the Proposed RMPA/EIS was published, State
Director Rundell addressed the issue in her reply to your
Consistency Review and Recommendations. She stated that ``we will
work with OCD as new State rules are finalized to make sure we
adhere to them.'' State Director's CRR Response, p. 5. On August 13,
2004, OCD approved new rules that prohibit the use of pits over much
of the planning area and place additional requirements on injection
wells and related facilities used to dispose of produced water.
These rules went into effect over seven months after the Proposed
RMPA/EIS was published.
In your appeal letter, you have described the New Mexico BLM
position as ``helpful'' and, thus, there is apparently now no
alleged inconsistency to address. Appeal, p. 12. To the extent you
continue to be concerned, let me assure you that the New Mexico BLM
will continue to require that operators secure necessary State
permits.
(x.) Cultural Resources Consultation Issues (CRR, Sec. II. (H &
J))
You expressed concern with the New Mexico BLM's consultation
process regarding cultural resources. While you have cited a number
of federal statutes, regulations, and guidance documents, you have
not discussed any alleged inconsistencies with state resource
related plans, policies or programs. You have noted the existence of
the New Mexico Cultural Properties Act, but you have not alleged any
inconsistency with state plans, policies, or programs instituted
under that statute.
Ensuring that BLM properly consults with tribes and other
relevant parties is a high priority for me, and I have noted your
concerns. However, this consistency review appeal response is not
the proper forum for examining the New Mexico BLM's compliance with
the federal statutes you have listed. Some of these issues were
raised in protests, and they are more appropriately addressed in
that context.
Regarding your policy of government-to-government relations with
tribes, BLM agrees that tribes have certain sovereign powers and
should be treated accordingly. Contrary to your statement in the
Consistency Review and Recommendations, BLM regulations do not
expect a state governor to review and recommend changes on behalf of
tribes. BLM will certainly consider consistency related comments
received directly from tribes and local governments. See 43 CFR
1610.3-2(c). The regulations merely establish a special procedure
for state governors to raise inconsistencies with state resource
related plans, programs, and policies. These regulations were
promulgated in 1983, and I will consider your comments in
determining whether a future modification of the regulations is
warranted.
(xi.) Scope of NEPA Alternatives (CRR, Sec. II. (I))
Concerns about the application of NEPA and other federal
statutes are not potential inconsistencies with state resource
related plans, policies, and programs that can be addressed in this
context. Your comments have been noted and will be considered in the
decision making process. As you know, the New Mexico BLM did issue a
Supplement in May, 2004 and accepted public comment regarding the
proposed action. I understand that this action has not removed all
your NEPA-related objections, but this appeal is not the proper
place to address disagreements over the implementation of federal
statutes. Again, some of these issues have been raised in protests,
and they are more appropriately addressed in that context.
(xii.) Alternative Energy Program (CRR, II. (K))
The Consistency Review and Recommendations notes various state
laws that encourage alternative energy, but no inconsistencies with
the proposed plan amendment are raised. As noted earlier, this
amendment process focused on fluid minerals and was not designed to
directly address other planning topics. Soon the New Mexico BLM will
initiate a much broader planning process for Sierra, Otero, and Dona
Ana Counties. Issues not directly addressed in this current planning
amendment process'such as grazing, recreational uses, and
alternative energy issues--will be addressed, and your input is
welcomed during that process.
Summary of Potential Inconsistencies
I find that you have not raised any actual inconsistencies with
state resource related plans, policies, or programs. Much of what
was presented in your Consistency Review and Recommendations set
forth objections to the BLM's proposed plan amendment and the
associated environmental analysis. While these comments are useful
as part of the BLM planning process, this appeal decision only
concerns inconsistencies with officially approved resource related
state plans, policies, and programs. Comments that addressed federal
statutes do not raise inconsistencies that can be addressed through
the state consistency review appeal process. Many of the issues you
raised were addressed previously through the protest procedure. As a
general matter, you have not directed me to specific inconsistencies
and, upon further review of the state plans, policies, and programs
that you have cited, I have found no inconsistencies. Where you did
identify officially approved state plans, such as the Bighorn Sheep
Plan, Prairie Dog Plan, and State Water Plan, I have attempted to
clarify BLM's consistency and have directed New Mexico BLM to take
actions that further assist the reaching of plan goals. Where the
State has instituted recent regulatory changes regarding the use of
pits and injection wells, the State Director has already agreed to
continue the traditional New Mexico BLM policy of requiring federal
lessees to secure necessary permits from State environmental
regulators.
I also note that several aspects of your recommended plan do not
appear to be consistent with the current management of New Mexico
state lands that are leased for oil and gas development. For
example, the leased state lands in the Otero Mesa desert grassland
area are not bound by the extensive ``No Surface Occupancy''
stipulations that you recommend for similar federal public lands.
Additionally, several of your other recommended leasing
stipulations--such as
[[Page 3555]]
the recommended stipulation limiting drilling to one surface
location per 1,440 acres--are not incorporated into State rules or
fluid mineral leases. The measures in the BLM's proposed plan would
generally place more restrictions on oil and gas related activities
than are currently present on nearby state lands. The BLM's
consistency review process exists to help prevent incompatible land
management systems in areas of mixed management. Since the
recommendations contained in your Consistency Review and
Recommendations are generally not implemented on state lands, I find
that there would not be discordant management between closely
situated federal and state lands that might warrant the adoption of
your recommendations.
Discretionary Review of Governor's Recommended Alternative
The consistency review process is generally designed to
highlight specific inconsistencies between proposed BLM actions and
officially approved state resource related plans, policies, and
programs. Although you have not raised the type of inconsistencies
associated with review under section 1610.3-2 of the BLM planning
regulations, I recognize that you have documented a variety of
concerns and disagreements with the Proposed RMPA/EIS. You have
presented an alternative course of action and recommended its full
adoption. Therefore, in my discretion as BLM Director, I have
decided to re-examine your recommended alternative in light of the
federal and State interests involved.
Federal and State Interests
Under the Federal Land Policy and Management Act (FLPMA), BLM
must ``use and observe the principles of multiple use'' when
developing and revising land use plans. 43 U.S.C. 1712 (c)(1).
Through the land use planning process BLM makes choices among a host
of possible land uses. The multiple use mandate does not require
that all uses be available upon every acre of public land. Indeed,
the choice of one use in a particular area, by its very nature, may
exclude some possible uses while being compatible with still others.
Overall, however, the public lands managed by BLM are utilized by
the nation in an astonishingly wide variety of ways.
Here, the New Mexico BLM has proposed to amend the White Sands
RMP. The White Sands RMP addresses a wide range of uses including
recreational uses, wildlife habitat areas, and livestock grazing to
name but a few. While the Proposed RMPA/EIS considers decision
possibilities that relate primarily to oil and gas leasing, it does
so with the implicit recognition that any decision may impact the
availability of other uses. The integrated planning and NEPA
analysis process is designed to insure that the impacts of any
proposed action are clearly understood. BLM takes a similar view
when it considers any RMP amendment focused on a particular subset
of uses (such as the 1997 RMP amendment addressing Areas of Critical
Environmental Concern).\6\
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\6\ The White Sands RMP has been amended four times since it was
adopted in 1986.
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In short, when making land use decisions BLM must balance a
variety of interests. Of particular importance here is the national
interest in domestic oil and gas production. In the Mining and
Minerals Policy Act of 1970 Congress declared,
[I]t is the continuing policy of the Federal Government in the
national interest to foster and encourage private enterprise in (1)
the development of economically sound and stable domestic mining,
minerals,\7\ metal and mineral reclamation industries, [and] (2) the
orderly and economic development of domestic mineral resources,
reserves and reclamation of metals and minerals to help assure
satisfaction of industrial, security and environmental needs * *
*\7\ ``Minerals'' is specifically defined to include ``all
minerals and mineral fuels including oil, gas, coal, oil shale and
uranium.'' 30 U.S.C. 21a.
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30 U.S.C. 21a. Later, in the Federal Land Policy and Management Act
of 1976 (FLPMA), Congress noted,
[I]t is the policy of the United States that * * * the public
lands be managed in a manner which recognizes the Nation's need for
domestic sources of minerals, food, timber, and fiber from the
public lands including implementation of the Mining and Minerals
Policy Act of 1970. * * *
43 U.S.C. 1701(a)(12). Thus, Congress has stated a strong national
interest in the production of oil and gas on public lands. BLM, in
keeping with the multiple use mandate, is charged with balancing
this interest along with other valid interests as it manages the
public lands entrusted to its supervision.
Similarly, the State of New Mexico shares an interest in the
development of oil and gas resources in Sierra and Otero Counties.
The State of New Mexico would receive one half of the royalties paid
on any oil or gas produced from these public lands. Also, the state
is a major landowner within these two counties and has already
leased thousands of acres of land for oil and gas development in
this same area. Patrick H. Lyons, the State of New Mexico
Commissioner of Public Lands, provided New Mexico BLM with written
comments during the most recent public comment period. In his
comments, the Commissioner stated,
The state's trust holding in the greater Otero Mesa area are
second only to the federal acreage position and with these vast
holdings comes a keen awareness of the potential to develop a
secure, domestic energy resource and produce significant long-term
revenue for New Mexico, while at the same time recognizing the need
to harmonize development with environmental and cultural resource
protection.
Supplement comment letter of Commissioner Patrick H. Lyons, June
3, 2004. According to Commissioner Lyons, ``[T]he State Land Office
has leased approximately 80,000 acres of land in the area of Otero
Mesa for oil and gas development.'' Id. Commissioner Lyons noted
that state mineral and surface lands are ``held in trust to benefit
important New Mexico institutions, most notably our public schools
and universities.'' Id. He concluded that the proposed plan
presented in the Proposed RMPA/EIS and the Supplement ``allows
balanced and sustainable development of oil and gas resources at
Otero Mesa in southern New Mexico.'' Id. The Commissioner also
stated, ``Any additional delays in the leasing and development
process has the potential to deprive trust beneficiaries of much
needed funding and is not in the best interest of the trust.'' Id.
Comments were also received from the Otero County Economic
Development Council. The Council's president stated, ``We feel that
the addition of an oil and natural gas industry to Otero County is
an important diversification of our economy and will shore up the
jobs lost in recent years to the decline in the forest industry. We
feel that your plan adequately addresses the balance between this
new industry and environmental concerns.'' Supplement comment letter
of Laura Bregler, June 1, 2004.
I would be remiss if I did not give some consideration to the
views of the Commissioner of Public Lands and local leaders when
reviewing the balance of national and state interests. I am also
aware, however, that many public leaders, organizations, and
individuals from within and beyond New Mexico expressed a wide range
of views on this topic. Some opposed any development; some supported
your alternative; some supported the preferred plan in the Proposed
RMPA/EIS; and some felt that the proposed plan placed too many
restrictions on development.
In your appeal you have noted the state's interest in the
natural character, water resources, wildlife, and cultural resources
found in Sierra and Otero Counties. Clearly, there is a national
interest in these as well. FLPMA, in addition to recognizing the
need for domestic sources of minerals, also states it is the policy
of the United States that,
The public lands be managed in a manner that will protect the
quality of scientific, scenic, historical, ecological,
environmental, air and atmospheric, water resource, and
archaeological values; that, where appropriate, will preserve and
protect certain public lands in their natural condition; that will
provide food and habitat for fish and wildlife and domestic animals;
and that will provide for outdoor recreation and human occupancy and
use.
43 U.S.C. 1701(a)(8). I have taken these interests into account
as I have considered your appeal. I recognize that the Chihuahuan
Desert is a special place, and BLM plays an important role in the
proper management of this region.\8\
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\8\ Before addressing your recommendations, I would first like
to correct two misunderstandings regarding the Reasonably
Foreseeable Development Scenario (RFD) and the 5% rule in BLM's
proposed plan.
In your appeal, you have stated that the proposed plan's 5% rule
allows ``disturbance of 5,244 acres in the Otero Mesa grasslands.''
(Appeal, p. 8). This is not accurate. The 5% rule is not a
disturbance authorization; rather, it is a limitation applicable to
every exploratory unit that will be formed in the Otero Mesa and
Nutt desert grassland areas. See Proposed RMPA/EIS, pp. 2-28, D-10.
The RFD's short term disturbance figure of 1,589 acres is not
expanded or affected in any way by the 5% rule. For example, even if
the total disturbance within the entire planning area were still far
below the 1,589 acre level, lessees within an exploratory unit could
not disturb more than 5% of the surface area within that unit.
Likewise, the lessees within an exploratory unit would not be exempt
from the impact of a maximized RFD disturbance level merely because
their particular unit only contained 1% disturbance at the time the
overall 1,589 acre level was reached.
Also, allow me to clarify the relationship between acres leased
and acres disturbed. You state, ``My recommended plan, in fact,
provides more acreage for oil and gas activity than the BLM
anticipates will be disturbed in its forecast of the Reasonable
Foreseeable Development (RFD) in the two counties.'' (Appeal, p. 2)
Later, you state, ``My plan certainly allows for development in more
than the 1,600 acres needed to sustain the RFD. * * *'' (Appeal, p.
4). However, simply opening more than 1,600 acres to leasing does
not assure that any oil and gas development can occur. Disturbed
acreage will normally be much smaller than the actual size of a
mineral lease. This is because even a standard vertical well will
normally produce from a subsurface area that is much larger than the
disturbed drill pad area. Further, the RFD disturbance level is
based on the projected success of exploration activities throughout
this largely unexplored planning area. Undoubtedly, some areas will
emerge as more desirable for drilling than others. The RFD does not
assume that allowing operations on any random 1,589 acres within the
planning area will lead to the level of activity forecasted.
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[[Page 3556]]
Discussion of Recommendations
You have recommended the following land designations for the
approximately 2.1 million acre planning area: 310,554 acres of
discretionary leasing closures; 333,200 acres that would be open to
leasing but subject to a ``No Surface Occupancy'' stipulation;
894,264 acres open to leasing but subject to expanded stipulations;
and 709,350 acres open subject to standard leasing terms and
conditions. As you noted in your appeal, these recommendations are
similar to ``Alternative B,'' first described in the Draft RMPA/EIS.
Because of the similarities to that alternative (which has been
before the public since 2000) and to other public comments that
advocated similar measures, the State Director decided not to
initiate a special public comment period regarding your
recommendations. That specific decision is not the subject of this
appeal; however, I note BLM received numerous comments addressing
your recommendations in the May 28th through June 28th public
comment period offered in association with the Supplement. These
comments on your recommendations have been noted and are being
considered in the ongoing decision-making process. One of your
proposed stipulations, however, would limit drilling to one surface
location per 1,440 acres.
I believe the BLM's current proposed plan balances the need to
allow for exploration activities with the need to protect wildlife
habitat, water resources and the overall environmental health of the
area. After reviewing your appeal, however, I cannot say that your
recommended plan provides a reasonable balance of the national and
state interests involved because your plan would make exploration
activities difficult or impossible over a majority of the planning
area.
Your recommended plan would completely close 310,554 acres (15%
of the planning area) to any drilling, including directional
drilling from offsite well pads. Your recommendation would also
place a ``No Surface Occupancy'' (NSO) stipulation on 333,200 acres
(16% of the planning area). Under such a stipulation, exploration
and development could only be done on the margins of the NSO areas
via directional wells started offsite. Your proposal also includes
twelve leasing stipulations. Some of these proposed stipulations
closely parallel existing BLM best management practices (BMPs).\9\
However, your proposed stipulation allowing only one surface
location per 1,440 acres would apply to some 894,264 acres (44% of
the project area). This translates to one well pad per 2\1/4\ square
miles.\10\ As you acknowledge, this is not consistent with the
current statewide rules for gas well spacing'one well per 160 acres.
CRR, p. 42. This stipulation could limit the exploration flexibility
needed to properly understand the subsurface resource. It could also
produce a disincentive for exploration because, after an initial
vertical well is drilled, directional drilling would be required.
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\9\ All BLM offices are instructed to consider applying certain
BMPs, such as interim reclamation of well locations, in nearly all
circumstances. Seasonal restrictions, requiring multiple wells from
a single pad, and the burying of power lines and flow lines in or
near roads are examples of BMPs implemented based on case-by-case
analysis. See BLM Instruction Memorandum No. 2004-194. It is quite
possible that these and other BMPs will be appropriate for well
sites in Sierra and Otero Counties. BMPs are typically implemented
as mandatory conditions of approval when BLM responds to site-
specific Applications for Permits to Drill (APDs) with project-
specific NEPA.
\10\ Given the relatively small number of wells anticipated
under the RFD (141 total wells, of which 84 are projected to be
producing wells) and the large size of the planning area, it is
quite possible that no more than one surface location will be
disturbed per 1,440 acres. In certain circumstances, however, it may
be environmentally beneficial to cluster pads rather than widely
spacing them.
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It is important to remember that Sierra and Otero Counties are
frontier exploration areas. While some 101 wildcat wells have been
drilled between 1925 and 2003, none have led to full production. Any
alternative, therefore, must be able to adequately accommodate
exploration activities if it can truly be said to meet the national
and state interests associated with domestic oil and gas production.
In your appeal you state, ``Directional drilling allows for
production and is the way to reconcile state and national policies
in this area.'' Appeal, p. 20. Directional drilling is an important
and useful drilling technique that can limit surface disturbances
over subsurface target areas. Directional drilling is generally most
effective during the production phase of oil or gas development when
the subsurface reservoir characteristics are better understood.\11\
This type of drilling is strongly encouraged by the BLM when
appropriate. See e.g., BLM Instruction Memorandum No. 2004-194.
Directional wells undoubtedly have some value at the exploration
stage, but it is highly unlikely that the large areas placed under
your proposed NSO stipulation could be effectively explored using
only directional wells.
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\11\ I note that the Biodiversity Conservation Alliance article
cited in your appeal focuses mainly on production phase efficiencies
associated with directional drilling and contains less than two
paragraphs addressing the directional drilling of exploratory wells.
Erick M. Molvar, Drilling Smarter: Using Directional Drilling to
Reduce Oil and Gas Impacts in the Intermountain West, Biodiversity
Conservation Alliance, p. 8, 16.
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At least one expert familiar with the planning area, Ronald F.
Broadhead (Associate Director and Principal Senior Petroleum
Geologist of the New Mexico Bureau of Mines & Mineral Resources) has
concluded, ``In frontier exploration areas such as Sierra and Otero
Counties, exploration and initial development must be accomplished
through the drilling of vertical, and not horizontal, wells.'' Draft
RMPA/EIS comment letter of Ronald F. Broadhead, March 27, 2001,
Proposed RMPA/EIS, Appendix G, p. G-I-45. As Mr. Broadhead has since
clarified, his comments were not meant to suggest that some deviated
wells (which, as he says, ``are more similar to a vertical well than
a horizontal well'') could not be used in the exploration phase.
Supplement comment letter of Ronald F. Broadhead, June 21, 2004.
However, neither Mr. Broadhead nor any other recognized expert has
suggested that deviated wells are capable of exploring the large NSO
areas present in your recommended plan.
For example, in Township 24 South, Range 13 East, your plan
would place a three mile by six mile area under an NSO stipulation
(sections 7-24). This 18 square mile rectangle is bounded either by
non-federal land or by still more land subject to the NSO
stipulation. Assuming that ground access for directional drilling
was possible from the non-federal NSO boundaries, a well would face
a minimum horizontal displacement of 1.5 miles in order to explore
targets in the center of sections 13 through 18. Thus, the
uncertainty associated with a frontier exploration area and the
large contiguous tracts involved combine to make exploration in much
of your NSO zone highly unfeasible.
It is common knowledge that a directionally drilled well is more
costly and complicated than a comparable depth single vertical
well.\12\ While the added costs are often justified by the ability
to hit multiple high value subsurface targets and to protect
important surface resources, such is not
[[Page 3557]]
always the case in an exploration context. Higher exploration costs
can reduce the likelihood that areas will be economically feasible
to explore. Potentially productive areas that remain unexplored can
prevent the nation and New Mexico from realizing the benefits of
domestic energy production.\13\
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\12\ You provide an example in your Consistency Review and
Recommendations estimating a 26% increase in per well costs between
nine separate vertical wells and the more expensive nine directional
wells drilled from a single drill pad. Consistency Review and
Recommendations, p. 43. The per well cost differences would likely
increase if fewer than nine wells were examined. A lesser number may
be more realistic in a frontier exploration area. You did not
discuss the horizontal displacement involved in your hypothetical
situation, but it should be noted that your example was based on a
drilling depth of 2,200 feet, while the area's most successful well
in recent years was over 7,000 feet deep. Reaching such depths could
be more difficult when extensive horizontal offsets and fractured
geology, common in sections of the planning area, are also involved.
\13\ For example, the unleased areas closest to the successful
Bennett Ranch well location would be subject to the NSO stipulation
under your alternative. Under the Proposed RMPA/EIS plan this area
would be subject to stipulations, such as the 5% rule, that would
allow for the possibility of limited exploration with both vertical
and directional wells.
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Conclusion
As previously discussed, you have not identified inconsistencies
with state resource related plans, policies, and programs. Neither
are your recommendations for federal public lands completely
consistent with the management practices on state lands with oil and
gas resources. Nevertheless, I have instructed the New Mexico BLM to
take steps to further strengthen its support for the state plans,
policies, and programs that you have noted. Among these steps are
expanded protection for potential bighorn sheep habitat and occupied
black-tailed prairie dog habitat in the planning area.
Also, I have reviewed your complete recommended alternative as
you requested. In short, your recommendations would place some
1,538,018 acres (75% of the planning area), either off-limits to
drilling completely or under stipulations that place significant
barriers to effective exploration and development. Such a plan is
unbalanced. Your recommended plan does not give reasonable
consideration to the federal and state interest in domestic energy
exploration and production in Sierra and Otero Counties, and it adds
little significant protection for other natural resources. I
therefore cannot approve your recommended alternative and must deny
your appeal.
The BLM proposed plan allows a reasonable opportunity for
exploration and development, but the plan does not ignore the
important environmental interests of the area. The plan closes the
six Areas of Critical Environmental Concern (ACEC) to leasing. It
also closes eight areas that have been nominated for ACEC status. As
you previously recommended, the BLM proposed plan will not allow any
fluid mineral leasing in the 35,790 acres of potential Aplomado
falcon habitat located in the Nutt and Otero Mesa grassland areas.
The broader grassland areas are subject to protective stipulations,
including the 5% maximum disturbance rule. All of this is under the
umbrella of the RFD-based analysis that anticipates short term
disturbance from oil and gas activities of 1,589 acres throughout
this nearly 2.1 million acre planning area. That disturbed area is
less than one-tenth of 1% of the entire planning area. The proposed
plan also includes strict landscape reclamation standards that will
be applied to any areas of disturbance. I believe the BLM proposed
plan offers a reasonable balance between energy needs and
environmental considerations and improves the management regime
found in the currently effective 1986 White Sands RMP. Under that
plan, some 96% of the planning area would be open to leasing without
any special stipulations.
Again, I thank you for your participation in the land use
planning process for Sierra and Otero Counties. Your appeal is
hereby denied, and I affirm the decision of the New Mexico State
Director. Although I have denied this appeal, it is my hope that the
New Mexico BLM and the State of New Mexico will continue to
communicate and cooperate on future issues.
Sincerely,
Kathleen Clarke,
Director, Bureau of Land Management.
[FR Doc. 05-1315 Filed 1-24-05; 8:45 am]
BILLING CODE 4310-84-P