Piceance oil, gas plan raises lease rights concerns

A proposal intended to protect wildlife from oil and gas development in the Piceance Basin fails to respect energy companies’ existing lease rights, critics say.

The legal concern could strike at the heart of a groundbreaking wildlife strategy laid out in the Bureau of Land Management’s proposed oil and gas plan revision for its Meeker-based White River Field Office.

The BLM’s preferred draft alternative would take what agency spokesman David Boyd said is the unique step of imposing seasonal timing limits on surface disturbances on all lands under the office’s jurisdiction. The agency then would offer to waive those limits where a company agrees to limit the amount of acreage it impacts at any one time.

In the case of existing leases where timing limits aren’t part of the lease terms, they would be imposed as conditions of approval when a company seeks to proceed with drilling.

David Ludlam, executive director of the West Slope Colorado Oil and Gas Association, said it’s wrong for companies to invest in leases based on one set of rules and then have those rules changed.

“No other business sector would be treated like that and I think anyone using common sense would agree with the position we take,” he said.

Garfield County commissioners last week indicated they will bring up the same concern to the BLM.

The BLM is trying to protect wildlife including the state’s largest migratory mule deer herd, and greater sage-grouse, a candidate for Endangered Species Act protection.

It considers the ability to impose the timing limits on existing leases to be crucial because 75 percent of the land under the field office’s jurisdiction is already leased. That figure rises to 90 percent for the Piceance Basin area southwest of Meeker, the focus of both industry interest and the concerns about wildlife.

The BLM bases its legal rationale for the timing limits proposal on a 2008 Interior Board of Land Appeals ruling. That board denied Yates Petroleum’s challenge of post-lease restrictions imposed by the BLM in Wyoming, including increased buffer zones to protect greater sage-grouse.

The BLM long has spelled out in its rules that post-lease restrictions such as timing limits of up to 60 days a year are basic, site-specific conditions of drilling approval that it can require of a company.

But the land appeals board said that doesn’t mean more restrictive measures are necessarily unreasonable and prohibited. The BLM’s preferred White River alternative proposes annual timing limits of up to 120 days.

“If we have a specific resource that we need protected, then we can apply additional measures,” Boyd said.

In the case of the White River proposal, “it makes it a lot more difficult to protect those resources without having the additional restrictions,” he said.

Ludlam said it’s one thing to impose reasonable, site-specific conditions of approval on things like lighting, but quite another to implement rules that function as takings by limiting accessibility to assets.


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The companies argue that conditions should not be imposed at the time of lease, because at that point, number of wells, etc. is not known - and that conditions should wait for drilling permits. They want to have it both ways.

In the North Fork, the CO BLM is arguing that everything will be fine leasing lands under a 30-year-old NEPA analysis because it can attached updated ‘conditions of approval’ to address these very same issues (and a host of others never considered in its base-line RMP from the 1980s).  Here we see that that is likely not the case, and the attempt to pretend such protections will apply is a shell game.  This article demonstrates why protections need to be in the land use plan, and when that land use plan is decades and decades outdated, then a new land use plan needs to be in place BEFORE leasing.

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