Back to other letters

March 2, 2008

VIA E-MAIL

Michael Blenden

U.S. Fish and Wildlife Service

9383 El Rancho Lane

Alamosa, CO 81101

RE: Comments on Draft Environmental Assessment of Planned Gas and Oil Exploration, Baca National Wildlife Refuge, Saguache County, Colorado

Dear Mr. Blenden:

I am writing on behalf of Colorado College to provide comments on the Draft Environmental Assessment of Planned Gas and Oil Exploration, Baca National Wildlife Refuge, Saguache County, Colorado ("Draft EA"). The Draft EA was prepared in response to the oil and gas exploration project proposed by Lexam Explorations, Inc. ("Lexam") on the Baca National Wildlife Refuge (the "Refuge"). The National Environmental Policy Act, 42 U.S.C. §§ 4321, et seq. ("NEPA"), requires the U.S. Fish and Wildlife Service (the "Service") to fully examine and disclose the impacts of Lexam's use of the Refuge for oil and gas exploration and to reasonably mitigate those impacts. Colorado College is submitting comments on the Draft EA because the operation of the College's Baca Campus, which is located near Crestone, Colorado, could be adversely affected by Lexam's proposed activities. The comments provided below identify deficiencies in the environmental review process that the Service must address before any oil and gas exploration work on the Refuge can proceed.

Additionally, the College understands that the U.S Environmental Protection Agency ("EPA") has raised concerns about the Draft EA and will be submitting a letter detailing its comments to the Service. Although the College has not yet seen EPA's comment letter, it is our understanding that EPA questions the sufficiency of the process used by the Service to prepare the Draft EA and the depth of analysis undertaken by the Service with regards to potential impacts to groundwater and air quality. We ask that the Service give EPA's comments considerable weight in determining whether to revise the Draft EA and require a full EIS. See Davis v. Mineta, 302 F.3d 1104, 1123 (10 th Cir. 2002) (a lead agency must give consideration to another agency's conflicting views, particularly when the commenting agency has expertise pertinent to the subject at hand); Sierra Club v. U.S. Army Corps of Engineers, 701 F.2d 1011, 1030 (2 nd Cir. 1983) (finding that a court may properly be skeptical as to whether an EIS's conclusions have a substantial basis in fact if the responsible agency has apparently ignored the conflicting views of other agencies having pertinent expertise.").

The Baca Campus

Colorado College previously submitted a letter to the Service on September 17, 2007, providing its comments on the scoping process undertaken by the Service prior to preparing the Draft EA. In that letter, the College describes its Baca Campus (the "Campus") and its strong interest in protection of the pristine nature of the Baca NWR and surrounding area. The Campus is located directly adjacent to the Refuge and within 50 miles of the Great Sand Dunes National Park. Colorado College classes have been held at the Campus since the mid-1980's and each year nearly 1,500 students, faculty and staff visit the Campus to engage in educational, scientific, cultural, meditative and religious activities on the Campus and the Refuge. The solitude afforded by the Campus' location adjacent to the Refuge provides a unique setting for study and meditation. Moreover, the Refuge itself provides exceptional and irreplaceable environmental and cultural resources that are integral to the Campus' curriculum. For these reasons, the College believes that Lexam's activities will disrupt the educational uses of the Campus, and as more fully set forth below, the College urges the Service to postpone approval of Lexam's proposed work until it has fully studied these and other potential impacts.

A Full Environmental Impact Statement is Required for Lexam's Action

The Service has characterized Lexam's proposed exploration program as one that does not require a federal action and thus does not require full NEPA review. Draft EA, § 1.5. Consequently, the scope of the Draft EA has been limited to proposing mitigation measures that will prevent "unreasonable" degradation of the Refuge's resources, and the Service has not recommended that any further analysis be performed before allowing Lexam to proceed. Draft EA, § 1.3. Colorado College strongly disagrees with the Service's characterization and firmly believes that a full environmental impact statement ("EIS") is required for Lexam's proposed exploration program.

In the Draft EA, the Service acknowledges that it has a responsibility "to protect USFWS resources to the maximum extent possible without infringing on the rights of sub-surface owners." Draft EA, pp. 1-6. The Service further acknowledges that "USFWS regulations and the [USFWS Manual, Land Use Series, 612 FW 2, Oil and Gas (USFWS 2007)] explicitly recognize that the USFWS has the right and is obligated to prevent unreasonable degradation of the surface resources of the Refuge . . . ." Id. at 1-7 (emphasis added). Thus, the Service's mandate to consider, review and approve with conditions the use of the surface of the Refuge constitutes a federal action subject to NEPA review. See Friends of South Montezuma Valley v. Joyner, 2004 U.S. Dist. LEXIS 11820, *11 (D. Colo. 2004) (defining "major federal action" to include the "approval of specific projects, such as construction or management activities located in a defined geographic area"); Sierra Club v. U.S. Department of Energy, 255 F. Supp. 2d 1177, 1186 (D. Colo. 2002) (finding that the discretionary authority to determine reasonable use of the surface estate requires agency compliance with NEPA).

Moreover, in a situation such as this where an action is proposed that could have significant long-term detrimental effects on both the Refuge and the surrounding area, including the Great Sand Dunes National Park, the Service is obligated to use the full extent of NEPA to properly characterize and protect these national treasures. Under NEPA, a responsible agency is required to go beyond an EA and prepare a full EIS when a proposed project could have significant adverse impacts on the environment and surrounding community. See Center for Biological Diversity v. U.S. Fish and Wildlife Service, 202 F. Supp. 2d 594, 648 (W.D. Texas 2002) (EIS required when proposed action " may cause significant degradation of some human environmental factor. The plaintiff need not show that significant effects will in fact occur, but if the plaintiff raises substantial questions whether a project may have a significant effect, an EIS must be prepared.”). The Service acknowledges throughout the Draft EA that the proposed oil and gas exploration activities may impact both the unique resources of the Refuge but also the surrounding community that uses and depends on the Refuge. Moreover, the potential for significant impacts is compounded by the fact that the Refuge and its resources have not yet been fully studied (see further discussion below). As such, the Service cannot conclude, with any degree of certainty, based solely on the level of analysis undertaken in preparation of the Draft EA that no significant impact will occur as a result of Lexam's proposed exploration activities.

Additionally, the Service limited its review in the Draft EA to just the initial exploration activities proposed by Lexam. But it is clear from the Draft EA that, if Lexam finds sufficient quantities of oil or natural gas resources, it will seek approval from the Service for full scale production of these resources. The foreseeable possibility of full scale production, and the potential for long-term and permanent impacts from such production, should have been considered by the Service in evaluating whether the proposed exploration activities could have significant impacts on the Refuge and surrounding areas and determining whether preparation of an EIS for the project is required. 40 C.F.R. § 1508.27 (a potential impact is significant if it will set a precedent for future impacts). Breaking Lexam's actions into smaller projects that might be characterized as having less impact on the environment is contrary to NEPA's requirement to fully characterize significant impacts to the environment. Id.; see also Sierra Club, 255 F. Supp. 2d at 1185 (finding that an agency "must give a realistic evaluation of the total impacts and cannot isolate a proposed project, viewing it in a vacuum").

Suspend Drilling Until Completion of a Comprehensive Conservation Plan

The Service eliminated from further analysis the alternative that Lexam's drilling program be suspended until the Comprehensive Conservation Plan ("CCP") is completed for the Refuge. Draft EA, § 2.5.1. The rationale given for eliminating this alternative is that it was an "unreasonable" restraint on Lexam's right to develop its mineral estate. Id. The Service provides no further explanation for this conclusion, and this rationale is completely at odds with the Service's obligation, as stated above, to protect the Refuge "to the maximum extent possible."

The purpose of an environmental assessment is to assess the significance of actions on the environment. 40 C.F.S. § 1508.9. To properly assess significance, the Service needs to fully understand the resources that are being put in jeopardy. A complete inventory of these resources has not been completed. Conceptual Management Plan (May 2005) ("CMP"), p. 9. Colorado College believes that it is not unreasonable to defer Lexam's drilling project until an adequate inventory of the Refuge's ecological, cultural and historical resources is complete. Thus, the College urges the Service to postpone approval of Lexam's proposed activities until it has completed a CCP for the Refuge.

The Draft EA Does Not Adequately Evaluate and Mitigate Impacts to the Refuge

The Draft EA, in and of itself, does not adequately evaluate the potential impacts of the oil and gas exploration activities proposed by Lexam and thus, without further analysis, does not comply with NEPA. The purpose of an EA is to take a "hard look" at a proposed project and to determine whether the environmental effects of the project will be significant and, if necessary, to propose alternative courses of action to mitigate those impacts. See 40 C.F.R. § 1508.9; Silverton Snowmobile Club v. U.S. Forest Service, 433 F.3d 772, 781-2 (10 th Cir. 2006) (requiring that documents prepared to fulfill NEPA's "hard look" requirement "must not only reflect the agency's thoughtful and probing reflection of the possible impacts associated with the proposed project, but also provide a reviewing court with the necessary factual specificity to conduct its review"). Because the EA serves to evaluate the significance of a proposed action, it should focus on the context and intensity of effects that may "significantly" affect the quality of the environment. 40 C.F.R. § 1508.27. Among the factors to be considered in evaluating the significance of an activity are (1) u nique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, or ecologically critical areas; (2) the degree to which the effects on the quality of the human environment are likely to be highly controversial; (3) t he degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks; (4) the degree to which the activity may cause the loss or destruction of significant scientific, cultural, or historical resources; and (5) the degree to which the activity may establish a precedent for future actions with significant effects. Id. The Draft EA does not fulfill these requirements.

The Draft EA Underestimates Potential Impacts to Ecological, Cultural and Historic Resources.

First, the Draft EA understates the significance of the impact of Lexam's proposed oil and gas exploration activities on the Refuge's ecological, cultural and historic resources and the Service's proposed mitigation procedures do not adequately address the negative effects of the project on these resources. The ecological, cultural and historical resources within the Refuge were acquired by the federal government for the public at great expense. However, as stated above, a complete inventory of these resources has not been completed, and in fact, will not begin until later this year. CMP, p. 9. Although the Service believes it can assess the impact of Lexam's drilling project on the 14 acres that will be directly affected, Draft EA, pp. 2-7, the impact on the remaining 92,486 acres will remain largely unknown. Given the lack of baseline information on the Refuge's resources, the Service's assessment of the significance of the impacts caused by Lexam's drilling project on even the 14 acres directly impacted is cursory, at best.

The Draft EA Fails to Adequately Evaluate the Noise and Visual Impacts to the Surrounding Community.

Second, as stated in Colorado College's September 17, 2007 letter on the EA scoping process, the College is concerned about the impacts of noise and light pollution on its educational and meditation activities. The Draft EA does not adequately address these concerns. Although the Service recognizes that noise and light from the proposed exploration activities will undoubtedly impact the surrounding community, the Draft EA concludes that the impacts on visual resources and potential noise effects will not be significant and no special protection measures have been adopted. Draft EA, § 4.11. The Service provides no further explanation for its conclusion that these impacts will not be significant. In fact, as set forth in more detail in the College's September 17 letter, the use of diesel generators, stadium lighting, heavy trucks and earthmoving equipment necessary to set up and drill two 14,000 foot deep exploratory oil and gas wells could destroy the peace and tranquility that are the hallmarks of the Baca Campus and that is essential for its use for meditation and educational purposes. The full extent of these impacts must be more fully explored by the Service before allowing Lexam to proceed.

Moreover, the Service fails to require any meaningful mitigation measures to address the acknowledged noise and light impacts. Regarding night-time lights, the Service suggests that "to the extent possible," lights be directed at work areas. Draft EA, pp. 4-20. And with regard to noise effects, Lexam has agreed to use mufflers on its drill rig engines, and if available, to use a diesel-electric drill rig engine. Draft EA, pp. 4-21. These largely voluntary measures are wholly inadequate. It is estimated that once drilling operations begin, they will occur continuously, 24 hours per day for 60 to 90 days, for each well. Should Lexam be successful in finding commercially developable quantities of oil or natural gas, the lack of more stringent controls could result in even greater visual and auditory impacts in the future. At the very least, Lexam should be required to erect sound absorbing barricades around the drill site to reduce noise pollution and commit to using directional lighting at night to reduce light pollution.

The Draft EA Inadequately Evaluates and Protects Critical Ground Water Resources.

The Rio Grande Aquifer System in the vicinity of Lexam's drilling activities has not been adequately studied. The references cited in section 3.4.2 of the Draft EA describing the unconfined and confined aquifers in the project area do not adequately and fully evaluate these resources. Given that the Service believes the hydrology underlying the Refuge is "the glue that holds the Great Sand Dunes ecosystem together," CMP, p.33, the Service must more thoroughly evaluate the impact of Lexam's activities on the aquifers underlying the Refuge.

The Service must also require greater protective measures to ensure both short term and long term protection of groundwater resources. Protective measure #7, Draft EA, p.2-2, indicates that setting casing to 3,000 feet below the surface will fully protect the unconfined and confined aquifers from contamination. Without detailed knowledge about the nature of the aquifers underlying the proposed drilling areas, this provision could prove to be inadequate. The unconfined aquifer may extend to as deep as 4,500 feet below ground surface in some places. Draft EA, pp. 3-6. The Service must require that casing be set based on the conditions encountered at each drill site.

The Draft EA Does Not Evaluate Lexam's Experience Level.

The Service states in the Draft EA that it seeks to ensure that drilling will be conducted in a reasonable manner. Draft EA, p. 1-1. Yet, the Draft EA includes no information regarding Lexam's experience, capitalization or overall qualifications to undertake oil and gas exploration activities in such a pristine and highly sensitive area. The risk to the environmental from Lexam undertaking the proposed activities without proper experience working in such a highly sensitive environment is significant. Thus, before allowing Lexam to use the surface of the Refuge, and potentially irrevocably impact both ecological and cultural resources on the Refuge, the Service should carefully evaluate whether Lexam has the experience necessary to perform the work in this environment and the long-term financial capacity to implement the protection and mitigation necessary to protect the Refuge, including the surface reclamation work required once Lexam's has completed its drilling activities. Along these same lines, the Service should require Lexam to post a substantial bond, beyond that required by State regulations, as additional financial assurance that the Refuge will be restored to its original condition upon completion of drilling operations.

The Draft EA Sets a Risky Precedent for Future Approvals.

Finally, and perhaps most significantly, the Draft EA fails to evaluate the degree to which the approval of exploration activities, without a complete EIS, may establish a precedent for future drilling activities, should Lexam find commercially exploitable quantities of oil or natural gas. The lack of more stringent safeguards for the Refuge's resources at this stage could result in significant degradation or destruction of those resources as a result of subsequent production activities. The Service's assurance that any future oil and gas production activities will be subject to a separate NEPA analysis (Draft EA, pp. 1-4) provides little comfort. See Sierra Club, 255 F. Supp. 2d 1177 at 1186 (finding that assurances of future NEPA review do not obviate the need for compliance with NEPA regulations). The College questions how the Service has any leverage to more fully evaluate and demand protections for full future oil and gas production activities given its current characterization in the EA of its authority over such activities as "discretionary." Moreover, like the proverbial "camel's nose under the tent," the Service's approval of the exploration activities without a full EIS and with minimal mitigation measures sets a precedent for similar future approvals. If the Service does not act now to ensure that any oil and gas activities on the Refuge proceed only after a comprehensive analysis of potential impacts and with stringent protections for the area's resources, it will be difficult for the Service to demand a higher level of evaluation and protection for the Refuge in the future.

Your full consideration of the College's comments is greatly appreciated. Please contact me if you have any questions about Colorado College's comments or recommendations.

Sincerely,

Michelle Craig Kales

cc: Chris Melcher, Esq.

Mark J. Mathews, Esq.

10571\11\1128848.3