Untitled Document

Re: Draft Environmental Assessment of Planned Gas and Oil Exploration, Baca National Wildlife Refuge, Saguache County, Colorado, dated January 18, 2008

In the spirit of the National Environmental Policy Act of 1969, and under the specific guidelines and directives of this Act and its associated Executive Orders, we, the undersigned, after careful review, are respectfully protesting, challenging, and disagreeing with the findings, results, and implications of the draft Environmental Assessment performed by the United States Fish & Wildlife Service, dated January 18 th, 2008. Our position and our specific challenges are delineated in detailed sections that reference each associated point of the aforementioned draft EA. Furthermore, in keeping with NEPA, we request the next logical and legal phase, a full Environmental Impact Statement (EIS), be completed by the USFWS for the BACA National Wildlife Refuge. We have identified areas of the draft Environmental Assessment that are one or more of the following: 1) incomplete, 2) inconclusive, or, 3) do not meet the NEPA definition of “assessment”. The policies referenced in this document, along with our own research, point to the need for the EIS. If after your full consideration of our concerns, you do not conclude an EIS is necessary, we are respectfully requesting full explanations, results, and detailed responses for each of the concerns we include here as to why an EIS is not applicable. We list our specific concerns in Bullets I-VII at the end of this letter, under the section “The Need for an Environmental Impact Statement”.In summary, the primary points addressed are:

Definition of Environmental Assessment is not met.

Uniqueness of the local community and resultant cultural impacts are missing.
The USFWS lacks a management plan.
Visual impact (aesthetics) assessment is inadequate.
The noise baseline assessment was not taken on the BNWR and the data was not from a similar habitat and terrain.
Assessment of drillers, drilling company, and drilling process is missing.
Discussion of aquifers, endangered species, and etc. is incomplete.

It is of grave concern to us that many of the potential impacts were not fully assessed by the draft EA.

We provide quoted sections from NEPA and relevant executive orders in this letter as a foundation for our protest(s) and concerns about this draft EA. In addition, we point out specific mandates and directives that have not been met by the USFWS at various phases of the NEPA process.

We include the following excerpt from the NEPA Policy Act Sec 101(42 USC /4331) paragraph. (c) as the basis of our protest and concerns. This quoted section expresses well the intent and “backbone” of the National Environmental Policy Act as it relates to public involvement when there are environmental concerns:

“The Congress recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.”

It is in this spirit and under this Congressional directive that we respectfully protest and challenge the findings in the referenced draft Environmental Assessment, and have formulated this letter requesting an EIS.

In support of our assertion that this draft Environmental Assessment does not meet the definition of said document under NEPA, we reference the following:

Environmental Assessment means “a concise public document for which a Federal agency is responsible that serves to. . . provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement.”

2. From Council on Environmental Quality/Executive Office of the President: A Citizen’s Guide to NEPA, “Environmental Assessments”

“. . . .The purpose of an EA is to determine the significance of the environmental effects . . . .

. . . the EA serves to evaluate the significance of a proposal for agency actions, it should focus on the context and intensity of effects that may significantly affect the quality of the human environment. . .”

The draft EA in question does not satisfy either of these definitions. The January 18 th, 2008, draft EA, Paragraph 1.0 states:

“The purpose of this Environmental Assessment (EA) is to ensure that initial exploration of the mineral estate under the Baca National Wildlife Refuge by Lexam Explorations (U.S.A.) Inc. (Lexam) is conducted in a reasonable manner. . . .”

This purpose is vague, somewhat misleading, and does not meet either of the referenced definitions from NEPA. Furthermore, to state that the drilling is to be conducted in a “reasonable manner” undermines not only the definition of an EA, but takes the multiple and significant risks and reduces them to a vague, ambiguous condition of “reasonable”. Specifics, data, research, and impact studies are necessary to define “reasonable,” especially in such a delicate area as the Baca Wildlife Refuge, which is bordered by the unique cultural center of Crestone — known worldwide for its pristine views, clean air, and quiet environment.

Additionally, the NEPA guidelines and processes clearly mandate that before decisions are made, public officials and technical experts must be involved and the public must be involved and informed when impacts to the environment are evident, as described below in paragraph (b) From the NEPA Policy Act Sec 1500.1:

“(a) . . . . The President, the federal agencies, and the courts share responsibility for enforcing the Act so as to achieve the substantive requirements of section 101.

(b) NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. The information must be of high quality. Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA. Most important, NEPA documents must concentrate on the issues that are truly significant to the action in question, rather than amassing needless detail.”

The draft EA lacks specific, scientific details relevant to the action in question. (See Bullets I-VII below under the heading “The Need for an Environmental Impact Statement.”). The quality of many of the assessed elements is not “high” (as required), much of the scientific analysis is neither complete nor relevant to the nearby region (see Section V on noise under the heading “The Need for an Environmental Impact Statement.”, as an example), and many of the statements are not of an expert level. Many are inconclusive, as in the paragraph 4.11.1.1 on visual impacts. (See Bullet IV)

Additionally, Executive Order makes it clear that the federal agencies working in the framework of the NEPA process have certain responsibilities to the environment, other agencies—local and federal—and to the public. Executive Order 11514 requires the USFWS to meet these responsibilities. Section 2 provided below is especially relevant:

(Source: The provisions of Executive Order 11514 of Mar.5, 1970, appear at 35 FR 4247, 3 CFR, 1966-1970, Comp., p. 902, unless otherwise noted.)

“By virtue of the authority vested in me as President of the United States and in furtherance of the purpose and policy of the National Environmental Policy Act of 1969 (Public Law No. 91-190, approved January 1, 1970), it is ordered as follows:

Section 1. Policy. The federal government shall provide leadership in protecting and enhancing the quality of the Nation’s environment to sustain and enrich human life. Federal agencies shall initiate measures needed to direct their policies, plans and programs so as to meet national environmental goals. The Council on Environmental Quality, through the Chairman, shall advise and assist the President in leading this national effort.

Sec. 2. Responsibilities of federal agencies. Consonant with Title I of the National Environmental Policy Act of 1969, hereafter referred to as the “Act”, the heads of federal agencies shall:

(a) Monitor, evaluate, and control on a continuing basis their agencies’ activities so as to protect and enhance the quality of the environment. Such activities shall include those directed to controlling pollution and enhancing the environment and those designed to accomplish other program objectives which may affect the quality of the environment. Agencies shall develop programs and measures to protect and enhance environmental quality and shall assess progress in meeting the specific objectives of such activities. Heads of agencies shall consult with appropriate federal, state and local agencies in carrying out their activities as they affect the quality of the environment.

(b) Develop procedures to ensure the fullest practicable provision of timely public information and understanding of federal plans and programs with environmental impact in order to obtain the views of interested parties. These procedures shall include, whenever appropriate, provision for public hearings, and shall provide the public with relevant information, including information on alternative courses of action. Federal agencies shall also encourage state and local agencies to adopt similar procedures for informing the public concerning their activities affecting the quality of the environment.

(c) Insure that information regarding existing or potential environmental problems and control methods developed as part of research, development, demonstration, test, or evaluation activities is made available to federal agencies, states, counties, municipalities, institutions, and other entities, as appropriate.”

Many mandates and directives for federal agencies in the above paragraphs have been overlooked as evidenced by the USFWS initial steps in allowing the permitting process to commence with no regard for NEPA (resulting in a lawsuit against the USFWS, resulting in the mandate to follow NEPA). Additionally, in recent months and documented in several reports, the USFWS has delisted endangered species without following the federal process for such action. With these two federal violations, the citizens of this community have little confidence that this draft EA meets the minimum requirements outlined by NEPA and various Executive Orders, nor do we believe this EA make a sincere attempt to protect the environment or human welfare, the essential principles of NEPA.

When considering gas exploration in such an area as an undeveloped National Wildlife Refuge, a thorough study must be done to determine the variety of potential, significant impacts. More specific to the Baca National Wildlife Refuge, the San Luis Valley, and the town of Crestone and adjacent Baca Grande residential community, the multitude and magnitude of potential environmental and human welfare impacts are indeed very large. The aesthetic impacts, for example, specific to the town of Crestone and the residents of the Baca Grande were not addressed at all by this draft EA.

The process outlined by NEPA, and supported and monitored by the CEQ (an Executive Office of the President of the United States) and the Environmental Protection Agency (EPA) describes in great detail the difference between an Environmental Assessment and an Environmental Impact Statement, as well as the appropriate application for each. With regard to gas exploration in the Baca National Wildlife Refuge, as delineated in this letter and in the attached documents, references, and discussions, it is clear that a full Environmental Impact Statement is not only appropriate, but necessary in determining significant impacts on the environment and human welfare of this area.

When determining whether an EIS is appropriate, a decision must be made as to the “significance” of the impact. Specific to the Baca National Wildlife Refuge, potential dangers, risks, and impacts are obvious in numerous areas. Some of these are water (creeks, aquifers, and the context of the larger region affected), air, noise pollution, economic, social, and visual. NEPA Section 1508.27 clarifies the definition of “significant”. (Note: As an example of a federal agency that follows these definitions, the National Park Service references these points as the determining factor(s) for the need for an EIS).

In determining the “significance” of an impact, we refer you to the definition below as outlined by NEPA. This definition(s) will be referenced often throughout this document. The current EA ignores most of the impacts in this context and within this clear definition(s). Most issues and impacts addressed in the draft EA, if taken sincerely and examined appropriately per the definition(s) below, provide more than adequate grounds to classify the risks as significant or potentially significant, requiring further impact studies; i.e., an EIS.

“‘Significantly’” as used in NEPA requires considerations of both context and intensity:

(a) Context. This means that the significance of an action must be analyzed in several contexts such as society as a whole (human, national), the affected region, the affected interests, and the locali ty. Significance varies with the setting of the proposed action. For instance, in the case of a site-specific action, significance would usually depend upon the effects in the locale rather than in the world as a whole. Both short- and long-term effects are relevant.

(b) Intensity. This refers to the severity of impact. Responsible officials must bear in mind that more than one agency may make decisions about partial aspects of a major action. The following should be considered in evaluating intensity:

1. Impacts that may be both beneficial and adverse. A significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial.

3. Unique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas.

4. The degree to which the effects on the quality of the human environment are likely to be highly controversial.

5. The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks.

6. The degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration.

7. Whether the action is related to other actions with individually insignificant but cumulatively significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment. Significance cannot be avoided by terming an action temporary or by breaking it down into small component parts.

8. The degree to which the action may adversely affect districts, sites, highways, structures, or objects listed in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of significant scientific, cultural, or historical resources.

9. The degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973.

10. Whether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment.”

The paragraphs referenced in the draft EA that do not meet this definition in one form or another are numerous. We have organized some of those potential impacts, inadequate, and/or inconclusive statements and data, and subjective decision making below under “The Need for an Environmental Impact Statement”. Subjective decision making and assumptions are appropriate when previous data and research facilitate deductive, intelligent decisions. However, when considering gas exploration in an undeveloped wildlife refuge, objectivedecisions must be made based on actual data, research, and baseline information from the affected region. As such, each bullet below (I – VII) references one or more of the issues addressed in the draft EA and examines it in terms of the NEPA definition of significant.

Background Summary

Lexam Explorations owns the mineral rights under the Baca National Wildlife Refuge, which is public land. In July of 2006, Lexam Explorations informed the United States Fish and Wildlife Service (USFWS) of its intention to drill two wells on the refuge. The USFWS claimed that since Lexam owned the mineral rights that the federal government could not prohibit Lexam from accessing the minerals. Additionally, the USFWS claimed that they were not required to follow the policies and processes of NEPA (National Environmental Policy Act). These processes mandate public involvement and assessments of impacts to the environment as well as impacts to human welfare.

In May of 2007 the San Luis Valley Ecosystem Council (SLVEC) filed suit in U.S. District Court to force the USFWS to keep the public fully advised concerning Lexam Exploration, Inc.’s plan to drill oil or gas test wells on the refuge. The SLVEC also pointed out that biologic inventories of the new refuge are not complete and the refuge’s management plan isn’t due to be adopted for four more years. Current inventories have identified 28 rare, threatened, or endangered species on the refuge. The SLVEC won the suit, forcing the USFWS to follow the NEPA process. That process mandates a full assessment of the environment and the affected human welfare. The USFWS chose to perform one of the NEPA options, which is an Environmental Assessment (EA). That draft EA, dated January 18 th, 2008, is the subject of this response letter.

U.S. District Judge Walker D. Miller later halted drilling in the Baca until the NEPA studies (and full process) could be completed. Additionally, the Saguache County Commissioners issued a resolution declaring a six-month moratorium on any county permits regarding oil or gas operations or drilling activities. U.S. Rep. John Salazar, asked the regional director for the USFWS to do all it can to protect the Baca National Wildlife Refuge from potential impacts of drilling by Lexam.

Once the USFWS issued the draft EA, they included a 45-day public comment period commensurate with the NEPA process. All comments on the draft EA must be received by the USFWS no later than 5:00 p.m. March 2, 2008. This response letter, from the Citizens of the San Luis Valley and other stakeholders, contains many comments, concerns, and protests to the aforementioned draft EA and is in complete compliance with the NEPA process. In essence, this response letter is demanding a full Environmental Impact Statement (EIS) be performed. As referenced in the previous text and bullet points I-VII below, an EIS is absolutely necessary in determining the potential and significant impacts to the Baca National Wildlife Refuge and is in full compliance with NEPA.

San Luis Valley Citizens Alliance and the Citizens of the San Luis Valley Response to the draft Environmental Assessment of the USFWS, January 18, 2008

Background Summary