Full opinion text
ORDER ON ADMINISTRATIVE APPEALS ALAN B. JOHNSON, District Judge. The above captioned matter was heard and argued following submission of written appeal briefs in the above captioned cases. The Court has considered the parties’ written submissions, the arguments of counsel during the hearing, the applicable law, and FINDS and ORDERS as follows: Background and Contentions These cases present challenges to the decision of the Bureau of Land Management (“BLM”) allowing the development of up to 51,000 coalbed methane wells in the Powder River Basin, which extends from northeast Wyoming into Montana. The project would also authorize construction of 17,000 miles of road and 26,000 miles of pipeline; it would permit up to 1.0 trillion gallons of water to be pumped from groundwater aquifers onto the surface; allow for excavation of 3,100 unlined reservoirs of waste pits to hold some of the produced water and authorize the discharge of the remainder of the water, untreated, onto the ground. Plaintiffs contend that almost 200,000 acres of surface resources, including soils and vegetation, will be affected. Mineral and energy-related activities have been significant in the Powder River Basin since the 1960s. Ranching and agricultural production also are among the present uses of land in the Powder River Basin. Many of the federal lands in the basin are split estate lands, where surface is owned privately and mineral estate is owned by the federal government. Five major river systems, three of which (the Powder, Little Powder and Tongue) originate in Wyoming and flow north into the Powder River Basin in Montana. Plaintiffs assert these basins will receive discharges of hundreds of billions of coalbed methane (“CBM”) produced water over the life of the project. Plaintiffs note that the release of CBM from coal requires removal of the water, or dewatering, which is a process involving removal of large amounts of water. Plaintiffs suggest that this process involves on average 14,000 gallons of water per day per well. FEIS at 2-25; A.R. CD6: 116, Table 2-8). The proposed project in the Powder River Basin involves drilling 39,-367 new wells over the next 10 years; as a result more than 3 million acre-feet of water are expected to be pumped from the ground. The BLM has acknowledged “water is the number one issue in the EIS.” A.R. at CD8:622-623 (August 2001 BLM Briefing for Secretary). There are subsurface water concerns. Groundwater provides water for domestic purposes and ranching and agricultural operations in the area. CBM can impact groundwater, including complete loss of water wells for domestic use and for irrigation. While many underground aquifers will likely be recharged or replenished through infiltration over time, substantial recharge may take more than 100 years. CBM-produced water is high in salinity and sodicity (ratio of sodium to magnesium and calcium) (“SAR” or “sodium absorption ratio”). See e.g., A.R. CD8: 614, Attachment to October letter from Montana DEQ to Wyoming DEQ. This type of water can negatively affect soils and plant life and may often be unsuitable for irrigation or surface disposal. Disposal is a key issue. A.R. at CD8:622-623 (August 2001 Briefing for Secretary). BLM proposed to dispose of water by (1) putting it in infiltration pits, impoundments or reservoirs or (2) directly discharging onto the ground or into ephemeral and intermittent drain-ages. Water in pits that does not evaporate will soak back gradually into underground aquifers or spill out onto the ground or streams. CBM water through direct discharge onto the ground may be sprayed onto the ground or dumped into ephemeral drainages. This water is typically not treated for salinity or sodieity before discharge. In addition, the movement of water on the surface may cause erosion. Id. Plaintiffs assert disposal of CBM water high in salinity and sodieity threatens soils and vegetation and the future of agriculture in the region. Saline water may irreversibly affect or kill native vegetation which provides forage; salt and water tolerant plants that replace native plants are unpalatable and less productive for livestock. High SAR in CBM water can destroy soil structure by reducing infiltration rates and soil permeability. Crusting or sealing of soils can result, which can increase runoff. Pits constructed by CBM producers will concentrate salts and other contaminants in the six acre ponds, and some water from the pits may discharge into ephemeral channels or alluvial aquifers. Later, they may dry and become salty, barren patches subject to erosion and which can also further spread salt. Air quality impacts with CBM are also alleged to be significant, including air pollution from general particulate matter, nitrogen oxides from sources including construction of well pads, roads, pipelines, infiltration pits; dewatering coal seams with .pumps electrified by gas or diesel fired generators; and use of gas or diesel compressors to transport gas from the surface. See e.g., A.R. at CD7:680-771 (analysis, comments and reports addressing air quality issues). Plaintiffs contend all are sources of air pollution impacting health of residents and causing visibility problems in wilderness areas and national parks. Plaintiffs complain that the NEPA process has been insufficient in this case. They assert that the process was completed under political pressure to complete the project speedily and hasten development in accordance with the administration’s national energy plan. The BLM decided critically important questions, such as whether to prepare a single EIS for the entire basin or two, and whether to include alternatives or a supplemental EIS, on the basis of whether delay would be caused. Plaintiffs participated in the scoping process, then arguing that a single EIS on CBM development in the entire basin should be prepared, rather than two (one for Montana; one for Wyoming). Plaintiffs requested BLM to analyze a full range of alternatives to the proposed action, including different methods of handling CBM-produced water, such as reinjection and/or desalinization of water, different measures to reduce impacts to landowners, and an analysis of all the impacts on water supplies both in Wyoming and Montana. After participating in the process and attempting from the time of the Draft EIS (“DEIS”) to the Final EIS (“FEIS”) to reach a compromise, the BLM announced the Wyoming FEIS January 17, 2003. Plaintiffs assert the FEIS referenced new technical reports regarding surface water impacts, groundwater modeling and air impacts for the entire Powder River Basin, which had not been provided with or included in the DEIS. New information as to water was provided, including a 230 page surface water quality analysis technical report, with new and key assumptions about the two primary water handing options and how much water would enter the surface waters and amount that would recharge depleted aquifers. With all this information, plaintiffs complain that the agency did not make substantial changes in the proposed action or the alternatives considered. Plaintiffs assert that the FEIS still proposed development of the same exact number of CBM wells the companies wanted, with the same water handling methods, infrastructure and mitigation measures analyzed by the DEIS. The agency determined that no supplemental EIS was required. A.R. at CD6:3736-3765. Extensive comments were obtained after the Wyoming DEIS was circulated; public hearings were held after the draft EIS. See FEIS Vol. 1 at 2-2; A.R. at CD5:78. A preliminary final EIS was also circulated by the BLM for review and comment to cooperating agencies. A.R. at CD7:32222. Plaintiffs contend the FEIS failed to take a “hard look” at many key issues and impacts and that it understated impacts to air, water, soils and vegetation, and failed to consider the impacts of the full scope of the project. February 11, 2003, plaintiffs wrote Director Clarke regarding the new information, arguing that it warranted a supplemental EIS to provide an adequate opportunity for the public to respond. BLM did not respond to plaintiffs. February 18, 2003, plaintiffs submitted protests on the FEIS. April 30, 2003, BLM approved development in both Wyoming and Montana, authorizing a total of 82,000 wells for the entire Powder River Basin. The plaintiffs contend the Wyoming Record of Decision (“ROD”) did not correct deficiencies in the FEIS nor did it address issues raised in the protests. This litigation was commenced initially in Montana May 1, 2003. On January 13, 2004, the United States District Court for the District of Montana entered its order transferring to Wyoming the case docketed in Montana as CV 03-71-BLG-RWA, entitled American Lands Alliance, Biodiversity Conservation and George Wuerthner, Plaintiffs v. United States Bureau of Land Management, et al., now docketed at Case No. 04-CV-19J following transfer to Wyoming. The Montana Court entered a separate order January 13, 2004 transferring case 03-70-BLG-RWA from Montana to Wyoming. That case is now docketed as Case No. 04-CV-18J in Wyoming. The portions of transferred cases challenge the sufficiency of the Wyoming EIS and ROD in Wyoming regarding coalbed methane development in the Powder River Basin. Plaintiffs’ arguments assert that the standard of review under Section 706 of the Administrative Procedures Act is deferential: whether the decision was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. They contend, however, that such review, while giving deference to the agency, is to be both “probing” and “in-depth” (citing Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1574 (10th Cir.1994)). They seek to have this Court examine the plaintiffs’ claims to determine whether BLM considered relevant data and articulated a rational connection between the facts found and the decision made. Colorado Environmental Coalition v. Dombeck, (“CEC”), 185 F.3d 1162, 1167 (10th Cir. 1999). The National Environmental Policy Act, (“NEPA”), 42 U.S.C. §§ 4321 et seq., is the “basic national charter for protection of the environment.” 40 C.F.R. § 1500.1. The intent is to focus the agency’s attention on the environmental consequences of a proposed project, to guarantee that the relevant information will be made available to the larger audience that may also play a role in forming and implementing the agency’s decision, and to provide other governmental bodies that may be affected with adequate notice of the expected consequences and the opportunity to plan and implement corrective measures in a timely manner. Davis v. Mineta, 302 F.3d 1104, 1114 n. 5 (10th Cir.2002). NEPA requires that federal agencies prepare an environmental impact statement (“EIS”) before undertaking major federal action significantly affecting the quality of the human environment. 42 U.S.C. § 4332(2)(C). In the EIS, agencies must take a hard look at potential environmental impacts of proposed actions and disseminate the conclusions of the analysis to the public. It must ensure informed decision-making to the end that the agency will not act on incomplete information, only to regret its decision after it is too late to correct. Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1216 (9th Cir.1998). Case No. 04-CV-18J: Plaintiffs argue the BLM failed to take a hard look at the most significant impacts of CBM development: • Ground water impacts; failed to consider impacts to groundwater, subsequent effects on ranchers and their livelihood; whether water well agreements it proposed as mitigation would protect the interests of the basin’s residents and its environment. • CBM development will produce draw-down in aquifers; with varying levels for various formations. Plaintiffs argue the BLM did not have baseline information which would permit analysis of how many or which wells might have to be abandoned or how those water sources would be replaced, as well as the quality of replacement wells which may require treatment of water. • BLM failed to take a hard look at surface water impacts; the final analysis and preferred alternative relying on infiltration pits were premised on flawed assumptions, and therefore the FEIS understates the likely impacts to surface water resources. • BLM’s analysis underestimates the quantity of produced water by watershed. • BLM’s analysis does not accurately predict the amount of CBM water that will reach surface waters. • BLM’s analysis does not consider impacts to surface water from contaminants other than SAR and sahnity, including heavy metals such as barium, aluminum, lead, chromium, copper, arsenic, manganese, iron, selenium, sulfate and zinc which are toxic to fish and other aquatic life. • BLM’s analysis fails entirely to consider water quality impacts in ephemeral and intermittent streams, despite BLM efforts to meet Clean Water Act requirements for the basin rivers. BLM’s model assumes that as long as surface water quality is not degraded in the mainstem, ephemeral drainages can be used as disposal sites for CBM discharge water without regard to quality of water in those drainages. This fails to consider values associated with small streams and impacts of water on these values (e.g., loss of ability to irrigate with good water or water which won’t cause irreparable damage to soils). • BLM’s analysis failed to take a hard look at impacts to soil and vegetation. • BLM underestimated acreage that will be destroyed (underestimated number of infiltration ponds required to handle CBM produced water and understated impacts to soils and vegetation from construction of the ponds). • BLM never considered impacts of massive accumulation of salt in the environment. • BLM never considered impacts to structure and function of ephemeral drainages. • BLM’s analysis failed to give a hard look at the impacts to air quality. (The plaintiffs’ brief lists at length numerous specific failures in this regard at 32-39.) • BLM failed to take hard look at the cumulative effects of the project. • BLM’s failure to analyze impacts for the entire life of the project impermis-sibly narrowed the scope of its analysis and understated the project’s impacts. • BLM’s failure to consider impacts of CBM development in both Montana and Wyoming understated the cumulative effects of this project. Plaintiffs argue that BLM failed to comply with NEPA procedures that ensure a hard look at environmental impacts. Its substantive analysis of the environmental impacts of the proposed development was flawed, in part because it failed to comply with NEPA procedures designed to ensure such a complete and thorough environmental analysis. These procedures require that the process be objective, that it consider a reasonable range of alternatives, and that it provide meaningful opportunity for public involvement and feedback. In this regard plaintiffs also argue: • The companies’ choice of Greystone to prepare the EIS created a conflict of interest and BLM violated NEPA by allowing the companies to select and hire Greystone to prepare the EIS. • BLM failed to consider a reasonable range of alternatives. The Tenth Circuit applied a rule of reason analysis to determine whether the range of alternatives BLM considered, and the extent to which it discussed them, was adequate. Utahns for Better Transp. v. United States DOT, 305 F.3d 1152, 1166 (10th Cir.2002). Alternatives that fall between the obvious extremes of the proposed action and the no-action alternative must be given legitimate consideration. • BLM failed to analyze different levels of development. • BLM failed to analyze staged development. • BLM failed to consider any alternative addressing groundwater impacts. • BLM failed to consider a reasonable range of alternatives for Produced Water Handling (such as reinjection and treatment for beneficial uses). • BLM failed to prepare a supplemental or revised draft EIS. • The air quality and surface water quality analyses in the DEIS were inadequate. • Substantial new information was presented on the FEIS that was not available for prior review and not made available to the public for comment. Responses in opposition: The respondents in this matter, including Lessees, the BLM and the State of Wyoming, do not substantially differ in their basic points, which are summarized only very briefly here. The respondents argue, as to each point raised by the plaintiffs, that the BLM did take a hard look as required by NEPA and that plaintiffs are essentially seeking to have this Court compel a particular result or outcome. The BLM’s analysis was not as limited as plaintiffs’ submissions suggest and was based on reasonable assumptions, modeling and data with respect to the proposed project. BLM properly took a hard look at groundwater effects, surface water effects, soils and vegetation effects, air effects, as well as cumulative effects. It also properly selected Greystone as its contractor in accordance with accepted NEPA practices. BLM considered a reasonable range of alternatives and is not required to consider all alternatives. Defendants assert the BLM was not required to prepare a supplemental EIS, and that it rationally concluded that the proposed action did not materially change with that information; the FEIS contained only limited new information and plaintiffs identified no substantial changes or significant new information or circumstances which would require a supplemental EIS. Case No. 04-CV-19J: In Case No. 04-CV-19J, plaintiffs also bring claims for NEPA and APA violations. In this action, the plaintiffs assert that the Wyoming EIS is inadequate and violates NEPA, and the BLM has failed to prevent unnecessary and undue degradation to sage grouse, prairie dogs, and their habitat. Although tailored to address sage grouse/prairie dog and habitat issues specifically, the arguments advanced in this companion case are similar to those asserted in Case No. 04-CV-18J and require similar analysis of controlling environmental law. Plaintiffs have argued that the BLM failed to ensure the prevention of unnecessary or undue degradation to sage grouse and prairie dogs, irreversibly and irretrievably condemned the Powder River Basin to CBM development before complying with NEPA and FLPMA, and that it failed to consider a reasonable range of alternatives. The BLM faded to take a hard look at the impacts of CBM development on sage grouse and prairie dogs in that the EIS failed to provide sufficient baseline data, the BLM failed to sufficiently analyze and disclose direct and indirect impacts, and the EIS failed to sufficiently analyze cumulative impacts. The BLM is also alleged to have failed to adequately analyze and support the efficacy of the proposed mitigation measures. The ROD and EIS are fatally flawed, in plaintiffs’ view, because (1) the BLM, in allowing CBM development, failed to prevent unnecessary or undue degradation to many resources on the public lands, including sage grouse and prairie dogs, special status species being considered for listing under the Endangered Species Act; (2) the ROD and EIS are “a fait accompli ” and have made an irreversible and irretrievable commitment of resources prior to completing the NEPA process; (3) the ROD and EIS are deficient in terms of disclosing, analyzing, and mitigating the environmental consequences that they intended to confront, and necessary factors concerning the effect of CBM development on sage grouse and prairie dogs were ignored and the EIS did not constitute the necessary “hard look” required by NEPA; (4) in an attempt to cure these deficiencies, the BLM proposed a “shell game” by purporting to rely on mitigating and site-specific decision-making. Plaintiffs assert that by deferring NEPA analysis that the agency was required to do at the programmatic level into the indefinite future, the BLM effectively admitted that the EIS, as written, was deficient. By deferring the NEPA analysis to numerous site-specific CBM projects, the BLM may never be able to grasp the true extent of degradation to sage grouse and prairie dogs and related landscape scale processes until it is too late to reverse course, contrary to the intent of FLPMA and NEPA. The responses in opposition are consistent with those discussed above in conjunction with 04-CV-18J, and will not be set out at length again herein. Briefly, the federal defendant disagrees with plaintiffs’ assertions and argues the plaintiffs wrongly claim the BLM improperly limited its analysis of impacts considered over the life of the project. The BLM particularly focused on cumulative impacts to sage grouse over time, recognizing that surface coal mining, sagebrush treatments and livestock grazing had reduced availability of sagebrush habitat in the project area. BLM asserts it did consider cumulative effects from previous development including coal mines, power plants, grazing, and other oil and gas projects, as reflected in the voluminous record. It considered and compared direct, indirect and cumulative impacts on wildlife habitat, including prairie dogs and sage grouse. BLM notes that NEPA is a procedural statute and simply requires the agency to inform itself and the public about the effects of the proposal, which it did. Furthermore, BLM argues it has adopted extensive programs to monitor CBM development and provide for mitigation of potential impacts, as reflected more fully in the FEIS and ROD. Producers Williams Production and Bill Barrett Corporation respond to the plaintiffs’ lease challenge, arguing that the validity of the leasing decisions is not at issue in this case nor properly before the Court. To the extent the plaintiffs’ arguments can be so viewed, they should be denied and limited to consideration of their challenges to the FEIS and the ROD in this case. Lessees also assert that plaintiffs’ claims under FLPMA are not ripe, and reassert the arguments asserted by them in the companion case regarding the FEIS and ROD. The plan of development was properly considered, made available for public comment and the BLM considered reasonable alternatives in compliance with NEPA, and took a hard look at the impacts of CBM development in the Powder River Basin. The baseline data available to the BLM was sufficient to develop the EIS and permit proper consideration of impacts in the Powder River Basin, including impacts to sage grouse and black-tailed prairie dogs. The State of Wyoming likewise argues the BLM properly considered the issues raised by the plaintiffs and that the programmatic decision is one in which the State has a continuing and substantial interest in implementation, regulation and monitoring. The lease of lands by the BLM for CBM development is not an irretrievable commitment of resources and no development may proceed until the State of Wyoming issues water management permit(s). It also notes that the Wyoming Department of Game and Fish is responsible for managing the sage grouse and black-tailed prairie dog populations. The monitoring and mitigation measures are reasonable and are based on a hard look at the available data. The State urges that the process used to establish the measures provided for in the ROD with respect to management of the project, including wildlife and environmental impacts, receive judicial approval under NEPA to aid in assisting conservation and maintenance of the State’s natural resources. The Court notes also that since the filing of this case and oral argument in this matter, numerous and voluminous supplemental submissions have been made by all of the parties seeking to introduce and include in this administrative record many decisions and matters that have arisen and/or have been decided by other courts pertaining to similar issues. It should come as no surprise to any of the parties that the Court has reviewed pertinent and recent case law, in the course of studying and reviewing the parties’ submissions, and in its effort to educate itself and discern the state of the law. However, the Court does not find it appropriate to include those supplemental submissions as part of the administrative record on appeal, as doing so is contrary to the applicable law in this circuit. The Court’s function in a review of agency action is to determine whether the agency’s decision was arbitrary and capricious, based on the evidence presented at the hearing and the administrative record that is before the Court in this case. All pending motions to supplement the record on that basis will be, and hereby are DENIED. REVIEW OF AGENCY ACTION STANDARD OF REVIEW Under the Administrative Procedures Act (“APA”), judicial review is limited to the administrative record that was before the agency at the time it made its decision. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). None of the parties seriously dispute the applicable standard of review. The APA provides that the reviewing court shall hold unlawful and set aside agency action, findings, and conclusions found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law....” 5 U.S.C. § 706(2)(A). See also Utah Environmental Congress v. Bosworth, 372 F.3d 1219, 1223 n. 7 (10th Cir.2004). This standard requires that the agency provide a reasoned basis for its decision and that the decision be supported by the facts in the record. Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1575 (10th Cir.1994). The duty of a court reviewing agency action under the arbitrary or capricious standard is to ascertain whether the agency “examined the relevant data and articulated a rational connection between the facts found and the decision made.” Id. at 1574. The reviewing court “must determine whether the agency considered all relevant factors and whether there has been a clear error of judgment.” Id. Because the arbitrary and capricious standard focuses on the rationality of an agency’s decision-making process rather than on the rationality of the actual decision, an agency’s action must be upheld, if at all, on the basis articulated by the agency itself. Id. The action may not be upheld on a different basis articulated by the government on appeal to this Court. Black Butte Coal Co. v. United States, 38 F.Supp.2d 963, 969 (D.Wyo.1999) (Brimmer, J.). Even if the Court does not agree with the agency’s findings, those findings cannot be set aside if they are supported by substantial evidence. Four B Corp. v. NLRB, 163 F.3d 1177, 1182 (10th Cir. 1998). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotation marks and citation omitted). An agency’s decision will be deemed arbitrary and capricious if the agency relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Lamb v. Thompson, 265 F.3d 1038, 1046 (10th Cir.2001). More recently, in Utah Shared Access Alliance v. Carpenter, 463 F.3d 1125, 1134 (10th Cir.2006), the appellate court reiterated these notions: Because none of the statutory or regulatory provisions in question provide for a private cause of action, the judicial review provisions of the APA govern this suit. See 5 U.S.C. § 702; Colo. Envtl. Coal. v. Wenker, 353 F.3d 1221, 1234-35 (10th Cir.2004). Under the APA, a reviewing court may set aside final agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Silverton Snowmobile Club v. U.S. Forest Serv., 433 F.3d 772, 779-80 (10th Cir.2006). “[T]he essential function of judicial review [of agency action] is a determination of (1) whether the agency acted within the scope of its authority, (2) whether the agency complied with prescribed procedures, and (3) whether the action is otherwise arbitrary, capricious or an abuse of discretion.” Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1574 (10th Cir.1994).... To determine whether the agency complied with prescribed procedures, we must review the administrative record and applicable law. Id. To determine whether the agency’s decision was arbitrary or capricious,, we must “ascertain whether the agency examined the relevant data and articulated a rational connection between the facts found and the decision made.” Id. (footnote omitted). This standard also means that there must be a reasoned basis for the agency’s action, and it must be supported by “substantial evidence.” Id. “Evidence is substantial in the APA sense if it is enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion to be drawn is one of fact.” Id. (internal quotation marks omitted). Finally, action will be deemed “arbitrary or capricious” if the explanation for the action “is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Id. See also Silverton Snowmobile Club v. U.S. Forest Service, 438 F.3d 772, 779-780 (10th Cir.2006): We review the agencies’ compliance with NEPA, NFMA and FLPMA pursuant to the APA, which “ ‘empowers a reviewing court to hold unlawful and set aside [final] agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” Greater Yellowstone Coal. v. Flowers, 359 F.3d 1257, 1268 (10th Cir.2004) (quoting Utahns for Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152, 1164 (10th Cir.2002), modified on reh’g, 319 F.3d 1207 (10th Cir.2003)). In reviewing the agencies’ action, “we apply the same deferential standard to the administrative record as did the district court.” Id. We may set aside agency action “only for substantial procedural or substantive reasons.” Id. (further citation omitted). Discussion Summarized briefly, insofar as that is possible in this complex administrative case, the substantive challenges involved in these cases consist of objections to the FEIS and ROD with respect to water and air quality and environmental impact issues that might be anticipated and apparent as a result of CBM development in the Powder River Basin, also including those that address the impacts on the prairie dogs and sage grouse and their habitats in this project area. The substantive challenges are programmatic in nature and suggest that the BLM’s decision to require subsequent site-specific analysis is not appropriate or adequate. The plaintiffs’ arguments cover the entire gamut of challenges to agency action and enumerate numerous agency failures . concerning coalbed methane development in the Powder River Basin and the Record of Decision that has served to guide action in this area since that time. The plaintiffs assert that the agency failed to consider adequately groundwater impacts, aquifer draw down and impacts, surface water impacts, incorrectly estimated the quantity of produced water by watershed, did not consider contaminants, water quality in ephemeral and intermittent streams; the impacts upon soil and vegetation, the amount of actual acreage destroyed and impacted by the project(s); the effects of salt; air quality issues; the cumulative effects of the projects in Wyoming and Montana. They contend there has been a failure to consider a reasonable range of alternatives, in that the agency failed to consider different levels of development, staged development, among other failures, and did not prepare a supplemental or revised DEIS. The air and surface water quality analyses in the DEIS were not adequate, and when the FEIS was issued, it included information that had not been made available for public review and comment. All of the decisions constitute an irretrievable commitment of resources designed to further one predetermined goal, and the agency failed to consider a reasonable range of alternatives. As noted earlier, the choice of Greystone to prepare the EIS has also been challenged as inappropriate. The Court disagrees with plaintiffs’ arguments and finds them not to be persuasive. The voluminous materials in the administrative record belie the plaintiffs’ contentions. The PRB 0 & G Record of Decision states, in introductory text and excerpted at length here (pages 28-45 below), as follows: The Powder River Basin Oil and Gas Project The Powder River Basin Oil and Gas Project is a proposal of a group of oil and gas companies with leases in the Powder River Basin (PRB). They include Lance Oil and Gas (Western Gas Company), Barrett Resources Corporation (Williams), Devon Energy Corporation, Yates Petroleum Corporation, Pennaco Energy (Marathon Oil Corporation), and CMS Oil and Gas (Perenco S.A.). The companies are collectively identified as the Powder River Basin Companies (Companies). Upon receipt of the proposal the Bureau of Land Management (BLM) prepared a Reasonable Foreseeable Development (RFD) scenario for the planning area. BLM then initiated the Environmental Impact Statement (EIS) and Proposed Plan Amendments for the Powder River Basin Oil and Gas Project. The Final EIS (FEIS) analyzes exploration and development of oil and natural gas, including coal bed methane (CBM), in the PRB and the anticipated impacts and environmental consequences associated with exploration and development of oil and natural gas, including CBM. The FEIS updates the scope and analysis of effects for oil and gas development originally presented in the 1985 Buffalo and Platte River RMPs to include CBM and includes mitigation measures that when applied would reduce the impacts of oil and gas development activities. Prior to approval of individual Applications for Permit to Drill (APD) or Plans of Development (POD), site-specific environmental analyses will be conducted and will be tiered to the FEIS. This document records the decision made by the BLM concerning the proposed plan amendments for managing oil and gas operations on BLM administered public lands and federal mineral estate in the Wyoming portion of the PRB as analyzed in the FEIS. The planning area encompasses almost 8 million acres of federal, state, and private lands (Figure 1) in all or parts of Campbell, Converse, Johnson, and Sheridan counties. Of the total surface area, BLM administers 888,061 acres (11 percent of the Project Area) and the USDA Forest Service (FS) administers 261,009 acres (3 percent of the Project Area). In addition, BLM administers the federal minerals under 4,326,704 acres (68 percent of the Project Area). Thus, about 3,182,634 acres in the planning area (40 percent) are split estate (private surface and federal minerals). The FS and the State of Wyoming are cooperating agencies in this analysis. The FS will be issuing a separate Record of Decision (ROD) for FS administered lands. Summary of Proposed Action and Alternatives Three alternatives were analyzed in detail: (1) Proposed Action, (2) Proposed Action with Reduced Emission Levels and Expanded Produced Water Handling Scenarios, and (3) No Action. Alternative 1 — The Companies’ proposed action was combined with BLM’s Reasonably Foreseeable Development (RFD) scenario. The RFD scenario is based primarily on geology (potential for oil and gas resources to occur) and past and present oil and gas development, with consideration of other significant factors such as economics, technology, and physical limitations on access, existing or anticipated infrastructure, and transportation. Along with industry’s proposed action, which relates only to CBM, BLM’s RFD scenario forecasts the continued drilling of an estimated 3,200 oil wells. The RFD scenario also forecasts an estimated 51,000 CBM wells in the EIS area over the next 10 years. About 25 trillion cubic feet (tcf) of CBM may be recoverable from coal beds in the PRB within Wyoming. The Companies’ projections of CBM well drilling and production include various ancillary facilities. The ancillary facilities include access roads, pipelines to gather gas and produced water, electrical utilities, facilities to treat and compress gas and dispose of produced water, and pipelines to deliver gas under high pressure to transmission pipelines. Although the Companies would develop new wells throughout the 10-year period beginning in 2003, most drilling would occur during the first 8 years. Not all 51,000 wells would be drilled into a single coal seam. Wells drilled into different coal seams can be collocated on common well pads. The projected number of well pads is 35,589. The total numbers of wells and well pads is based on an 80-acre spacing pattern (eight pads per square mile). The 51,000 proposed CBM wells include an estimated 12,000 existing wells. Under the Proposed Action, the Companies would construct, operate, and maintain wells and ancillary facilities in 10 of the 18 sub-watersheds that make up the Project Area. However, most of the new wells (63 percent) and facilities would be constructed in two sub-watersheds: the Upper Powder River and Upper Belle Fourche River. Sub-watersheds that would contain relatively high numbers of wells and facilities include Clear Creek, Crazy Woman Creek, Tongue River, and Little Powder River. Overall, implementation of the Proposed Action could disturb as many as 212,000 acres, though requirements for reclamation will be imposed. This short-term disturbance would encompass about 3 percent of the Project Area, and most would be associated with construction of pipelines and roads. Longterm disturbance is projected to involve approximately 109,000 acres. Compressor stations would account for the smallest amount of the overall disturbance. Construction of wells under the PRB EIS would begin during 2003. Generally, construction of most CBM wells would be completed over the first 8 years (by the end of 2011). The production lifetime of the wells is expected to be about 7 years, and final reclamation is expected to be completed during the 2 to 3 years after production ends. Emphasis for water handling for Alternative 1 is untreated surface discharge. All compression would be powered by CBM. Alternative 2 — proposes the same number of CBM and conventional wells as the Proposed Action. However, two additional water-handling methods are analyzed: A — emphasis on infiltration, and B — emphasis on treatment for beneficial use. There are also two air quality options: A — 50 percent of booster compression would be electrically powered, and B— 100 percent of booster compression would be electrically powered. Alternative 2A and applicable portions of Alternative 1, relative to use of natural gas fired compressors, was the preferred alternative analyzed in the FEIS. Alternative 3 — No Action. This alternative would consist of no new federal wells. Wells would be developed only on state and private mineral ownership. Alternative 3 was determined to be the environmentally preferred alternative because there would not be any oil and gas development on BLM administered public lands and federal mineral estate. The Department of Interior’s authority to implement a “No Action” alternative that precludes development by denying the process is, however, limited. An oil and gas lease grants the lessee the “right and privilege to drill for, mine, extract, remove, and dispose of all oil and gas deposits” in the lease lands, “subject to the terms and conditions incorporated in the lease” (Form 3110-2). Implementation of Alternative 3 would not: • meet the Purpose and Need, • accomplish the objectives of the National Energy Policy, • prevent the financial loss of CBM through drainage, or • provide an efficient option to recover the resource. Through the analysis process the following alternatives were eliminated from detailed consideration. The reasons for dropping these alternatives can be found in chapter 2 of the FEIS. • Return all produced water to aquifers. • Capture and treat produced water for additional beneficial uses. • Staged rate or phased development. • No action on all lands. • Discharge produced water to the surface, but ensure that water quality at the Wyoming-Montana border does not change enough to adversely affect the uses of water at and downstream of the border. • Several environmental groups developed an alternative they identify as the “Conserving Wyoming’s Heritage Alternative.” This alternative is based primarily on phased development, alternative and innovative technologies, adaptive management, the “reopening” of permits, landowner protections, injection and treatment of produced water, and minimizing adverse effects to the full range of resources present in the Project Area. Decision Based on the information contained in the FEIS, referenced supporting documentation, and other considerations described below, the decision is hereby made to approve the proposed plan amendments. The decision is to approve Alternative 2A (preferred alternative) for water and that portion of Alternative 1 regarding the use of natural gas fired compressors. Alternative 2A, and that portion of Alternative 1 relative to use of natural gas fired compressors, describes the management goals, objectives, management actions and conditions of use that will guide future management of oil and gas operations on public lands and federal mineral estate managed by BLM within the Buffalo and Platte River Resource Management Plan (RMP) areas. This plan was prepared under the regulations implementing Federal Land Policy and Management Act (FLPMA) (43 CFR 1600). An EIS was prepared for the plan amendments in compliance with the National Environmental Policy Act (NEPA) The RMP Amendments approved by this ROD do not change the decisions of the 1985 RMPs relative to the availability of lands for oil and gas development. All other aspects of the 1985 RMPs concerning management of oil and gas and related activities are hereby replaced with the provisions contained in the RMPs as amended. Approval of this amendment provides for the use of the BLM administered public lands and federal mineral estate under the conditions described and the level analyzed in the FEIS. This ROD is not the final approval for the action associated with the PRB oil and gas project. BLM or FS must analyze and approve each component of the project that involves disturbance of federal lands on a site-specific basis. A separate authorization(s) from BLM or FS (and other permitting agencies) is required prior to approval of any APD, POD, Sundry Notice (SN), Right-of-way (ROW) Grant or Special-Use Permit before any construction can occur, (emphasis supplied) Goals, Objectives, and Management Actions The preferred alternative describes the management goals and objectives and management actions that will guide future management of oil and gas operations on BLM administered minerals within the Buffalo and Platte River RMP areas. The decisions relative to the primary issues are as follows: Operator Requirements The Companies are responsible for obtaining all necessary federal, state, and county permits, and for implementing the PRB oil and gas project in an environmentally responsible manner (see Appendix A, Table A-l, Federal, State and Local Permits, Approvals, and Authorizing Actions Necessary for Construction, Operation, Maintenance and Abandonment of the PRB Oil and Gas Project). Air As part of the permit approval process, the air quality regulatory agencies will prepare additional analysis, conduct monitoring, and require mitigation as needed to ensure compliance with all applicable standards before permits could be approved. Water As part of the permit approval process, the water quality regulatory agencies will prepare additional analysis, conduct monitoring, and require mitigation as needed to ensure compliance with all applicable standards before permits could be approved. Water Well Agreement All operators on federal minerals are required to offer a Water Well Agreement as set forth in the Gillette South FEIS and the Wyodak FEIS. This agreement protects nearby water wells permitted by Wyoming State Engineer’s Office (WSEO). The Companies generally offer the same agreement when they are drilling on fee and state lands (Appendix B) Montana and Wyoming Powder River Interim Water Quality Criteria Memorandum of Cooperation The Interim Memorandum of Cooperation (MOC) documents WDEQ’s commitments and intent to protect and maintain water quality conditions in the PRB within Montana. WDEQ’s current permitting process incorporates the numeric water quality standards for electrical conductivity (EG) and sodium adsorption ratio (SAR) adopted for water bodies downstream in South Dakota, specifically drainages in the Upper Cheyenne and Upper Belle Fourche River sub-watersheds. Wyoming and Montana have entered into an interim MOC for waters downstream in Montana to protect the downstream water quality in the Powder and Little Powder River sub-watersheds while allowing for development of CBM in both states. This MOC is included as Appendix C. Interim thresholds are established for EC in the Powder River at the state line, based on monitoring data collected at the gauging station in Moor-head, Montana. The criteria for EC are expressed in monthly maximum values that are not to be exceeded. The two states are also concerned with SAR and bicarbonate, but lacked sufficient data to establish threshold criteria at the time of the MOC. Under the MOC, monitoring of the Little Powder River will include EC, SAR, and total dissolved solids (TDS) to evaluate whether levels of these constituents change appreciably from historical records. In the event that significant changes in baseline conditions are detected, the State of Wyoming would be required to investigate potential causes to determine if CBM discharges are responsible. Wyoming would be required to adjust its criteria for granting permits to ensure compliance with the spirit of the agreement. WDEQ, through its current National Pollutant Discharge Elimination System (NPDES) permitting process, is restricting the amount of CBM discharge water that reaches the main stems to meet the short-term goal of the MOC. Discharges are limited through such mechanisms as impoundment storage, channel loss, and other consumptive uses. Furthermore, as a matter of policy, WDEQ has elected to impose its antidegradation policy on all CBM discharges. This policy results in effluent limitations in NPDES permits for discharges of CBM produced water that equate to 20 percent of the available increment between low-flow pollutant concentrations and the relevant standards (assimilative capacity) for critical constituents. A separate an-tidegradation policy for barium, in which the assimilative capacity is basin-specific, is also applied to CBM discharges. Montana has accepted Wyoming’s anti-degradation policies to be protective of Montana’s water quality. Water Management Plans A Water Management Plan (WMP), a comprehensive document that addresses the handling of produced water during the testing and production of CBM well(s) is required to be submitted with CBM APDs or PODs. The WMP must provide adequate information for the BLM to complete site-specific NEPA analysis and to ensure compliance with all state and federal requirements prior to approval. A CBM APD or POD will not be considered complete or processed by BLM unless it contains a WMP. For details on WMPs, see Appendix D. T&E The BLM will comply with the ESA by implementing on BLM administered minerals, when applicable, the measures prescribed in the U.S. Fish and Wildlife Service (USFWS) Biological Opinion (BO) for the FEIS. These measures are included in the Programmatic Mitigation Section in Appendix A of the ROD. Sensitive Species BLM will take necessary actions to meet the policies set forth in sensitive species policy (BLM Manual 6849) for all sensitive species listed in the FEIS, including the greater sage grouse and black-tailed prairie dog. To help ensure BLM’s activities do not contribute to the listing of the black-tailed prairie dog or greater sage grouse as threatened or endangered species (see Appendix A for mitigation measures that will be required and Appendix E for monitoring relative to these species). Protection of the prairie dog is provided for in mitigation for the blackfooted ferret, primarily that “prairie dog colonies will be avoided whenever possible.” Cultural At a minimum, all areas of proposed ground disturbing activity will be intensively inventoried for cultural resources in conformance with minimal BLM Class III survey standards at the APD, POD, or SN phase of each proposed Federal undertaking. For CBM well fields or PODs, a block survey of the entire project area early in the planning phase is highly recommended by the BLM and is required by the FS. All sites within the planning area must be evaluated for eligibility under the NRHP. Specific plans for avoidance and protection or minimization of adverse direct or indirect effects would be recommended for any historic properties within the areas of potential effect of proposed project activities. Prior to implementation, these plans. must be approved by the BLM or FS, as appropriate, State Historic Preservation Office (SHPO), and, if applicable, by the private surface owner. Such plans might include, but are not limited to the following constraints, stipulations, or actions: • Relocation, redesign, or constraint of project facilities and infrastructure to avoid or minimize earth disturbance within historic properties or contributing portions of historic properties or to avoid or minimize indirect effects or intrusions caused by vibration, dust, exhaust, or noise. This may include barricading or fencing of sensitive areas and buffer zones. • Relocation, redesign, or constraint of project facilities and infrastructure to avoid or minimize visual intrusion on a sensitive historic, traditional, or religious setting. This might include low profile facilities, non-intrusive colors, landscaping, berms, screening with vegetation, or other measures to minimize visual impact. • Stabilization of sediments, bedrock, or structures that could be destabilized, or could deteriorate, as a result of nearby project activities and identification of an appropriate buffer zone. • Restriction or prevention of access to sensitive areas. • Rehabilitation of buildings or structures, or protective screening of art work to minimize deterioration. • Detailed documentation, possibly including archival photo documentation, of contributing structures, landscape features, or aspects of historic setting that cannot feasibly be avoided. In some cases it may be feasible to restore some of these contributing features after construction has been completed. • Detailed recordation or data recovery of the essential contributing elements of a historic property that cannot be avoided or protected. Recordation may include archival, documentary, and contextual research related to the historic property in addition to site documentation. Data recovery is the systematic recovery of data important in history or prehistory for which the property is considered eligible. Data recovery for prehistoric or historic archaeological sites typically entails excavation of buried materials and detailed documentation of stratigraphic context. Vegetation An Integrated Pest Management Plan (IPMP) will be required to be submitted with the APD if the location of the well or POD falls within an area of identified noxious weeds. For details on the IPMP see Appendix F. Reclamation Phased reclamation plans will be submitted to the Buffalo Field Office (BFO) and Casper Field Office (CFO) for approval prior to individual CBM POD facility abandonment. These plans will be submitted as a Notice of Intent (NOI) SN for individual facilities, such as well locations, pipelines, discharge points, and impoundments, because they are no longer needed. Areas of Critical Environmental Concern The Sierra Club of Wyoming petitioned the BFO during the scoping process to nominate areas for designation as outlined in the BLM’s 1617.8 Manual guidelines for Designation of Areas of Critical Environmental Concern, (ACEC). These designations apply only to public lands. Before an area is nominated for ACEC designation the area must meet both the relevance and importance criteria (43 CFR 1610.7-2) and BLM Manual 1613, to become eligible for further consideration. Of the eight areas reviewed, the BLM administered lands on two areas were found to not meet the criteria and were dropped from further consideration. The BLM administered lands on 6 proposed ACECs were found to meet the criteria and were retained for further consideration (FEIS Appendix R). The six areas that met the criteria for relevance and importance are being deferred for designation until such time as an amendment specific to their designation or revision of the Buffalo RMP is conducted. Any future land use planning process addressing these areas will provide an opportunity for the public to provide comments on the findings in this evaluation. A decision to not designate part or all of the proposed area as an ACEC does not require the preparation of a plan amendment and is exempt from NEPA. As determined in the analysis, no interim management was determined to be needed for the six areas in order to maintain the relevance or importance criteria considerations. It was determined that the existing lease stipulations, COA and programmatic mitigation would provide adequate mitigation. However, when APDs are received that encompass these areas, mitigation measures will be reevaluated and/or additional site-specific mitigation would be implemented to ensure protection of values for meeting the relevance and importance criteria. Operations on Split Estate Lands The BLM, under FLPMA, must identify how the federal mineral estate will be managed, including identification of lease stipulations. To meet the consistency requirements of FLPMA, the same standards used for environmental protection of Federal surface are also applied to the federal mineral portion of split estate lands (private surface underlain by federal minerals). The impacts to surface resources and surface uses from BLM-authorized mineral development must be considered not only on BLM administered public lands but also on split-estate lands. The BLM also has the authority and responsibility to impose restrictions deriving from applicable law and regulation; implement stipulations developed through the Land Use Planning process; enforce lease terms and provisions of onshore orders and take reasonable measures to avoid or minimize adverse environmental impacts that may result from federally authorized lease activities regardless of surface ownership. The analysis documented in the FEIS and the decisions made in this ROD are pertinent to all Federal oil and gas lease lands, including split estate, and are subject to all applicable statutes. This includes all of the identified mitigation and Standard COA in the ROD. It is important to understand that BLM only imposes mitigation and COA on the Companies as a result of site-specific environmental analyses of APDs, PODs, and SNs. These measures are not applied to dictate to the surface owner how to manage his or her property, but are only applied to the Company to ensure environmentally sound oil and gas development in conformance with BLM’s statutory responsibilities. BLM specialists consult with private landowners on split-estate situations during the APD, OD, and SN review and approval process to ensure their involvement. Private landowner views, in addition to the effect that implementing possible mitigation and COA might have on the use of their surface, are always carefully considered by BLM in the approval of split-estate federal lease actions. BLM cannot approve APDs, PODs, or subsequent SNs on federal leases until all applicable federal statutory requirements have been met. In some instances, a COA may be applied to meet a statutory requirement. Interagency Work Groups The BLM and WDEQ will work with the Montana Department of Environmental Quality, EPA, National Park Service, FS, and other federal, state, and tribal authorities to establish interagency working group(s) for CBM development in the PRB. The working group(s) will be responsible for guiding and designing the monitoring to validate the accepted mitigation measures and to ensure each agency’s actions achieve compliance with applicable air and water quality standards across jurisdictional boundaries. In order to ensure consistency, the interagency work group will also coordinate with other work groups established to address CBM development in Montana. The interagency working group(s) will, of necessity, depend upon the regulatory and management policies of the WDEQ as the agency with air and water quality primacy. Each agency within the working group(s) will maintain their regulatory authorities throughout the process. Management Considerations The FEIS fully complies with BLM’s multiple use mission while considering and providing for responsible development of important oil and gas resources as described in FLPMA. The FEIS considers the use and/or protection of the full extent of the resources managed by BLM, including important energy and natural resources available in the planning area. While the plan amendments support the development of oil and gas resources, they also include the application of mitigation measures to minimize or avoid impacts to resources or land uses from oil and gas activities and prevent unnecessary or undue degradation. In addition to the mitigation measures included in the plan amendments, lease stipulations may be applied to protect critical resource values. Other protective measures may be required at the APD stage to mitigate site-specific impacts when not inconsistent with lease rights granted or specific provisions of the lease. The decision to approve the plan amendments for the Buffalo and Platte River RMPs takes into account statutory, legal, and national policy considerations. The analysis in the DEIS and FEIS was based on evaluation of the planning areas for oil and gas development and the identification of sensitive natural and cultural resources. The FEIS evaluated the effects of surface disturbance on these resources, and identified protective measures for consideration on a case-by-case basis to avoid or reduce impacts on important land uses and other resource values. The constraints placed on oil and gas development were reviewed in light of resource protection and where possible, major conflicts were resolved to provide a balance between protection of sensitive resources and sound practices for development of oil and gas resources. The decision also was based on input provided by and received from the public, industry, as well as other federal and state agencies. Through the review process many practicable methods to reduce environmental harm, without being overly restrictive to oil and gas exploration and development, were incorporated into these plan amendments. Impacts identified for the preferred alternative are acceptable for the following reasons: 1) as the nation’s largest land manager, the Department of the Interior, through the BLM, plays a major role in implementing the National Energy Policy developed by President Bush; 2) the National Energy Policy promotes the production of reliable, affordable and environmentally clean energy; 3) among the Nation’s most pressing concerns is to reduce our reliance on foreign oil and gas while protecting the environment; 4) BLM-administered lands contain world class ene