Wilting wildflowers

Energy industry eyes efforts at protection

By Dennis Webb
Saturday, August 4, 2012

On a barren, steep cliff on Mount Callahan west of Parachute, every step is an adventure.

The light-colored shale rock is loose and prone to slide downhill, prompting visitors to be careful not to let items such as cameras and backpacks — not to mention themselves — do the same. Views of the Colorado River thousands of feet below force speculation about just how far a tumbling object might fall.

But while human visitors might find this to be foreign and somewhat forbidding terrain, a wildflower called the Parachute beardtongue, also known as the Parachute penstemon, is right at home here.

Somehow finding nourishment in the sparse, dry, shale soil, it grows close to the ground and has an extensive root system that causes it to surface in multiple locations and helps it both withstand and take advantage of a landscape that’s continually giving way to gravity. It also manages to put out funnel-shaped flowers ranging in color from white to pale lavender, in what many observers say is a beautiful bloom.

“I think they’ve just adapted to a situation where other species are not able to thrive,” said Brian Kurzel, who is coordinator of the Colorado Natural Areas Program for Colorado Parks and Wildlife.

The problem for the Parachute beardtongue, however, is that the habitat it capitalizes on is sparse. It grows in the Green River shale formation, which is home to the world-class oil shale deposits companies long have sought to exploit commercially as an energy resource in western Colorado’s Piceance Basin, but which in most of the basin is buried underground.

The Parachute beardtongue is known to exist nowhere in the world but on this limited terrain in Garfield County, and in only four viable populations.

Nearly 70 percent of the roughly 4,100 known plants are on land owned by Occidental Petroleum Corp., better known as Oxy. The actual total number of Parachute beardtongue plants may well be higher, but counting is complicated by the steep terrain and the issue of access, in some cases, to private property.

On its land, Oxy isn’t looking to develop oil shale, but rather is doing traditional oil and gas development through drilling. And it’s also looking with keen interest to what the Parachute beardtongue’s listing last year as a threatened species under the Endangered Species Act will mean for its operations, which it already voluntarily modifies to protect the plant under a widely acclaimed agreement with the state.

Energy implications

Similar questions about impacts on oil and gas development surround the agency’s concurrent listing of the DeBeque phacelia as threatened under the act. The world’s only known DeBeque phacelia plants — with a total occupied habitat of about 625 acres — are found only in the area of its namesake town of De Beque. The plant is a low-growing spring annual with yellowish-white, tube-shaped flowers on short stems, and the U.S. Fish and Wildlife Service is trying to protect it from oil-and-gas, off-road-vehicle-travel and other impacts.

Fish and Wildlife last year listed the two flowers in a decision in which it also declared the Pagosa skyrocket to be endangered. There are only two known populations of that white-flowered plant, both near Pagosa Springs.

For the DeBeque phacelia and Parachute beardtongue, the energy industry’s questions about impacts extend beyond the listings themselves, to Fish and Wildlife’s proposal to designate tens of thousands of acres as critical habitat to help protect them. A final critical habitat decision is expected to be released within days.

“We remain concerned that the critical habitat designations are being made without good science,” said Kathleen Sgamma, director of governmental affairs for the Western Energy Alliance.

She contends the Parachute beardtongue designation relied on unpublished, non-peer-reviewed reports, and that some consider the DeBeque phacelia a variety rather than a unique species.

Her group’s fear is that the listings and habitat designations, when combined with the other costs of doing business on public land, may make it too expensive to drill in some areas.

“When you pile on regulation after regulation and new requirements on top of old requirements, it all starts to add up and bit by bit you make an activity uneconomic,” she said.

Responded Gina Glenne, a Fish and Wildlife botanist in Grand Junction, “We anticipate that oil and gas will have some more regulatory burden but we don’t anticipate that this would prevent any oil and gas drilling.”

“There’s no way that these designations are going to stop oil and gas activities ...” said Josh Pollock, acting executive director of the Rocky Mountain Wild conservation group. “These regulations are not as onerous as they are made out to be.”

Glenne said she believes the plants are the first to receive Endangered Species Act protection in Colorado since the early 1990s. Pollock thinks that reflects a longtime emphasis on protecting animals rather than plants under the act. It also reflects, she believes, a backlog of species that Fish and Wildlife has deemed to be candidates for protection but precluded from being listed based on the need to devote limited resources to higher-priority species.

While the agency has been under pressure from conservation groups to act more quickly on listing decisions, and recently agreed under a legal settlement to do so, Glenne said its decision last year on the Colorado plants resulted from the Parachute and Pagosa Springs plants in particular being considered high priorities.

Harsh places

Like the Parachute plant, the De Beque and Pagosa Springs plants also favor very specific soils — clay and what’s known as Mancos shale, respectively. All three appear to not compete well with other plants, and instead have carved out niches in barren environments where little else can grow. Glenne said a lot of threatened and endangered plant species, especially in the arid West, are found in harsh environments.

The limits such environments can place on those plants able to live in them are exemplified in places such as Oxy’s Mount Callahan land.

There, Kurzel notes that the same shale slopes are home to other rare plants, including the sun-loving meadowrue and the Roan Cliffs blazing star. The meadowrue also is found in other places in Garfield County and in Rio Blanco and Mesa counties. The blazing star also is found in Utah but exists in Colorado only in Garfield County.

He said there are about 120 plants in Colorado that are considered globally imperiled, but they occupy probably fewer than 60,000 acres in the whole state.

“So conservation can be relatively effective if you know where they are and you’re working in the right places,” he said.

That’s where Oxy’s agreement with Kurzel’s program comes in. The first natural area on Oxy’s Mount Callahan acreage was created in 1987, with the idea of protecting the Parachute beardtongue following its discovery there a year earlier. A second area was created on the property in 2008 to protect a second population, and plans are in place to expand protections from 680 acres currently to about 780 acres to cover a third population.

Protections from drilling cover areas such as buffer zones between pads and plants, weed and dust controls, fencing and signage and environmental monitoring.

Oxy also has expressed willingness to take measures to protect the habitat and other food sources of pollinators such as bees on all its acres in the area, which total 3,500 or more. These pollinators are crucial to the Parachute beardtongue’s continued propagation. Oxy and the state are working to finalize an agreement for expanded protections for the plant and its pollinators.

With Oxy’s existing agreement with the state, Fish and Wildlife originally agreed to consider excluding the two existing natural areas from what it is proposing as critical habitat for the flower in the area. Now, with the proposed pollination protections it is considering excluding several thousand acres of Oxy land.

Glenne said Fish and Wildlife recognizes the good work Oxy is doing, and likely would have listed the flower as endangered rather than threatened if not for that work. But it also has to take into consideration that Oxy’s agreement is voluntary, leaving open the possibility of those protections going away and Fish and Wildlife having little power to safeguard the plant on private land.

“We’ve been working to kind of come to some sort of solution where the plant wins,” she said.

Comfortable relationship

Kurzel said his program believes its agreement with Oxy provides more protections than are possible with a critical habitat designation. He also thinks the company’s long-term commitment to the state program should be considered.

“We’ve had a good working relationship for 25 years now,” he said.

Oxy prefers continuing to work under the state agreement rather than facing the uncertainty of what Fish and Wildlife might require of it.

“We’re comfortable with that (state) relationship. We think it works,” said Myles Culhane, managing counsel for Occidental Oil and Gas Corp., an Occidental Petroleum subsidiary.

Potential Fish and Wildlife requirements, such as for increased setbacks between drilling and plants, could hurt the company’s ability to develop the oil and natural gas resource, he said.

“Gas prices as low as they are, it may make it cost-prohibitive,” he said.

Oxy has estimated that if that occurs, it would be unable to recover more than $2 billion in natural gas and other hydrocarbons in the Mount Callahan area.

Black Hills Exploration and Production, which has interests near De Beque, has expressed similar concerns about costs and limited access.

But a draft report prepared for Fish and Wildlife estimates far lower economic costs associated with the listings of all three flowers than Oxy’s worst-case fears. It says baseline costs for administrative work, on-the-ground measures and other compliance in areas proposed for critical habitat designation, even if that designation doesn’t occur, could range from $3.85 million to $9.81 million. Oil and gas would account for about $6.3 million of that cost on the high end, while at even the low end impacts on transportation projects in order to protect the Pagosa skyrocket along roadways would cost about $3.4 million.

Separately, Oxy would incur $2.2 million for its work in areas being considered for exclusion from critical habitat designation.

Additional costs if critical habitat designation occurs for all three species could range from $967,000 to $14.8 million, with oil and gas bearing about 90 percent of the low-estimate costs and 99 percent of the high-end ones, according to the economic study.

Cactus case study

Glenne thinks a lesson can be learned from the 1979 designation of the Colorado hookless cactus as threatened. Its habitat partly overlaps that of the DeBeque phacelia, and yet plenty of oil and gas development has occurred there, she said.

Moving pads and using fencing are among the means for drilling and imperiled plants to coexist, she contends.

She believes the implications of a critical habitat designation can be overstated. She noted that Fish and Wildlife didn’t even used to designate critical habitat, questioning its benefit. All the designation means is that consultation with Fish and Wildlife must occur within the habitat to determine if an action would have an effect on a listed species. If there isn’t an anticipated effect, the only cost ends up having been paperwork, she said.

Meanwhile, within certain distances of the three flowers, protective measures will be required regardless of whether they’re in designated critical habitat.

But Endangered Species Act requirements apply in many cases only on federal land for plants. While the act’s prohibition against hunting, collecting or otherwise taking protected animals extends to private lands, it doesn’t bar removing or damaging listed plants on such lands, with a few exceptions. One is if it violates a state law, but no such law exists in Colorado. Another occurs when what’s called a “federal nexus” is involved, such as federal funding or authorization for an activity.

Absent a federal nexus, private landowners don’t need to engage in consultation or mitigation to protect plants, regardless of whether a plant is nearby or the land involved is designated critical habitat.

For Oxy, a federal nexus could entail instances such as seeking permission to widen a BLM road leading to their property, or pursuing an Army Corps of Engineers permit to cross a stream, Culhane noted.

While much of the Parachute beardtongue population is on Oxy land, most DeBeque phacelia plants are on BLM and national forest lands, and 87 percent of Fish and Wildlife’s proposed 24,484 acres of critical habitat for the plant is on federal land.

Glenne said the large amount of private property involved, and development and highway-project threats in the Pagosa Springs area, are among the reasons why the Pagosa skyrocket was listed as endangered rather than threatened.