NEPA and the Draft Environmental Assessment – San Luis Valley Water Watch

The present cabinet boasts more CEO’s than any in history. Most come from the energy, extractive, and manufacturing sectors that rely on giant subsidies and create the worst pollution. Almost all the top positions at the agencies that protect our environment and oversee our resources have been filled by former lobbyists for the biggest polluters in the very businesses that these ministries oversee. These men and women seem to have entered government with the express purpose of subverting the agencies they now command.

– Robert F. Kennedy, Jr., Crimes Against Nature: How George W. Bush and His Corporate Pas Are Plundering the Country and Hijacking Our Democracy

Figure 1. Gateway to the new Baca National Wildlife Refuge

History of NEPA on the Baca (BNWR)

The newly-formed Baca National Wildlife Refuge (BNWR) has been out of compliance with the National Environmental Policy Act (NEPA) from the very beginning. The BNWR called a public meeting on February 12, 2008, to obtain input from our community on the Draft Environmental Assessment (EA) written by ENSR, a private contracting company paid by Lexam. The public was given 45 days until March 3, 2008 to submit written comments to the BNWR. Although this operation has had all the markings of a “rigged game” and a “done deal,” some 48,000 comments and substantive letters were reportedly submitted to the BNWR by the deadline. The overwhelming sentiment of respondents was that a full Environmental Impact Statement is required. We have done this by documenting specifics about 1) the context and intensity of expected impacts associated with the proposed drilling, and 2) how the Draft EA does not address the many specific issues we already raised in the 48,500 letters submitted during the scoping process. Even though the official comment period is over, it still may be helpful if individuals write original and substantive letters to:

Michael Blenden
U.S. Fish and Wildlife Service
9383 El Rancho Lane
Alamosa, CO 81101
Email: [email protected]

In addition, please be sure to send copies of your letter to the Governor, your Congressmen, County Commissioners, and anyone other stake-holders you can think of (some addresses are provided at the bottom of the page). Now is a critical time because if the BNWR accepts the FONSI (“finding of no significant impact”) recommended in the Draft EA, then Lexam’s drilling can commence this August. An example of a good, “substantive letter” by Bruce Blodgett of Crestone is shown in Appendix A below.

Looking back over the past year and a half, it is evident that the BNWR began working to facilitate Lexam’s drilling project BEFORE they initiated the NEPA process, which is required by federal law. In fact, Ron Garcia, Manager of the BNWR, initially informed our community representatives that the BNWR would NOT conduct a NEPAprocess because they did NOT have to comply with NEPA. Indeed, the way the Lexam drilling project was introduced to our Crestone/Baca community indicates that representatives of the BNWR had already been working with Lexam, other federal agencies (the National Park Service and the BLM), and the Sonoran Institute (a non-profit organization) to limit the scope and effectiveness of public response. This a priori collusion between government and industry suggests that the BNWR has been acting on orders from senior officials in the Department of the Interior and/or the White House to “expedite” this drill play rather than follow the federal laws meant to protect public lands and ensure that the American citizens have a role in the decision-making process. Unfortunately, similar blatant attempts to circumvent NEPA are now happening all over the country due to this administration’s blatant disregard for law (http://pubs.acs.org/subscribe/journals/esthag-w/2007/nov/policy/jp_nepa.html).

Indeed, in March, 2007, the U.S. Fish and Wildlife Service and Lexam Explorations, Inc. released a 47-page draft “Negotiated Operating Plan for Conducting Hydrocarbon Exploration and Development Activities on the Baca National Wildlife Refuge.”
Obviously, this document was meant to replace the legally-mandated NEPA process. Only after the Energy Minerals Law Center lawyers sued the BNWR did U.S. attorneys agree that the BNWR is legally required to conduct a NEPA process. And only then did the BNWR belatedly “decide” to initiate the NEPA process. And when they did it, they tried to do an “end run” around NEPA. Ron Garcia, BNWR Manager, emailed 52 people from our community at 4:44 pm on August 7, 2007, notifying us that the BNWR was initiating a scoping process/Environmental Assessment at a public meeting to be held 10 days later, Friday, August 17th, from 5:00 to 8:00 pm. His email was entitled: “Notice of Public Meeting to Discuss Resource Protection Issues Related to Gas Exploration Activities on Baca National Wildlife Refuge.” The notice did not say “issues related to proposed gas exploration activities,” it said “issues related to gas exploration activities.” For the BNWR, it has always been and remains a “done deal” despite the fact that NEPA requires a fair and open process with public input and acquisition of relevant scientific data to determine if there are significant impacts – before an activity can go forward.

The facts that the BNWR did NOT give fair, customary notice of this meeting in our local newspapers and gave us only 9 days to prepare for the meeting suggest they were trying to limit our public input and response. Nonetheless, citizens from our community filled the meeting on August 17th and argued persuasively for three hours that drilling on the BNWR; 1) would degrade the surface estate and resources of the wildlife refuge and therefore is not a “reasonable or compatible use” of the refuge, 2) is not compatible with the cultural values of our community and region, and 3) would cause serious contamination of water, air, and degrade our roads and communities, as well as wildlife habitats in this still pristine and spectacular area.

According to NEPA lawyer Travis Stills, NEPA (National Environmental Policy Act of 1969), the “Magna Carta of environmental protection,” was written in order to address the problem of “agency capture,” i.e., situations where federal agencies and industry “forget who is who and start acting like each other.” NEPA is an “action forcing process” that mandates public participation and an interdisciplinary approach in the acquisition of relevant scientific data so that decisions affecting special areas and communities are not just made by industry. NEPA mandates that the of the San Luis Valley and our Crestone/Baca community. NEPA also requires that cumulative, synergistic impacts be examined and that “alternatives” to satisfy the purpose and need” of the project be considered and assessed.

NEPA mandates the disclosure of impacts, alternatives, and projected mitigation measures. It requires that one of two kinds of studies must be completed before a proposed project can go forward on federal land. An Environmental Assessment (EA) is used when there are “no significant impacts” (i.e., no unique and exceptional circumstances) associated with the proposed project. An Environmental Impact Statement (EIS) is required when there are “significant impacts” associated with the proposed project.

NEPA specifies (http://www.nepa.gov/nepa/reg/cwq/1508.htm#1508.27) that whether or not there are “significant impacts” depends upon the context and intensity of the proposed operation. Contexts that need to be considered include society as a whole (human and national), the affected region, affected interests, and locality. Intensity pertains to the “severity of impact” regarding:

1) degree to which the proposed action affects public health and safety.

2) 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.

3) degree to which effects on the quality of the human environment are likely to be controversial.

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

5) 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.

6) degree to which it is reasonable to expect cumulatively significant impacts on the environment.

7) 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.

8) degree to which the action may adversely impact an endangered or threatened species or its habitat- as determined under the Endangered Species Act of 1973.

9) whether an action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment.

The proposed drilling meets each of these criteria for “significant” in terms of context and intensity!

NEPA law also states that more than one agency may make decisions about partial aspects of a major action. Thus, Saguache County, the Baca Grande Property Owners Association, Native American Tribal Governments, Rio Grande Water Districts, the State of Colorado, grazing lease-holders on the BNWR, nearby farmers, ranchers and communities, as well as many agencies in New Mexico, Texas and Mexico, among others, also have the right and responsibility to give their input on these issues.

As we will see, even a cursory examination of the issues related to drilling in the valley, indicate that the proposed drilling action has very severe impacts, and thus, is highly significant in each of the above categories.

Despite the abundance of significant impacts associated with the proposed project, the BNWR selected a private contractor, ENSR, to write an EA rather than an EIS. Note again, that EA’s are appropriate only when there is a finding of “no significant impact” (FONSI). However, industry prefers EAs, of course, because they are typically written in a relatively a short time interval and do not require the acquisition of new, baseline scientific data. By contrast, a full-blown Environmental Impact Statement (EIS) is a much more thorough study requiring acquisition of new scientific data and normally takes about two years to complete. And EIS also involves participation of theEPA (Environmental Protection Agency).

The Scoping Process

At our scoping process meeting, Mike Blenden, of the BNWR, asked our community members to write in our comments and informed us that by law, ENSR and the BNWR would address each of our concerns. Over the next 30 days, some 48,500 people sent in responses. This indicates that the proposed action is extremely controversialand unpopular. During the scoping meeting itself, although our community spoke for about 3 hours, it was evident to us that neither Mike Blenden nor employees of ENSR were taking notes or recording our comments. And the Draft EA itself indicates that they also mostly ignored the approximately 48,500 written comments as well, comments overwhelmingly in opposition of the drilling!!! (My “scoping” letter is included in Appendix B below.)

ASSESSMENT OF THE DRAFT ENVIRONMENTAL ASSESSMENT: A “FONSI” (FINDING OF “NO SIGNIFICANT IMPACT” AND CLASSIC WHITEWASH!

The BNWR released the Draft EA on January 18, 2008 (http:www.fws.gov/alamosa/BacaNWR.html). In his cover letter, Mike Blenden of the BNWR states that the public comment period will end on March 2, 2008 and called a public meeting on 2/12/08.

My observations about the EA are that Blenden and ENSR are in violation of the NEPA policy in several keys ways:

1) No impacts are addressed at all! (Recall, that NEPA mandates disclosure of impacts, alternatives and mitigation measures). If no impacts are addressed, the document becomes nothing more than a whitewash of the NEPA process.

2) In the cover letter for the document, Blenden states: “The scope of this EA does not address production of natural gas and oil from any of the wells described above.” This is another clear violation of NEPA law because: #5 (above, under intensity of impacts) requires that NEPA examine 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,” and #6 (above) talks about “degree to which is reasonable to expect cumulatively significant impacts on the environment.”

3) The document starts with the a priori assumption that Lexam will drill and that the role of the BNWR is only to help mitigate impacts. The first sentence of page 1-1 of the EA is: “The purpose of the Environmental Assessment (EA) is to ensure that initial exploration of the mineral estate under the Baca National Wildlife Refuge (Refuge) by Lexam Explorations (U.S.A.) Inc. (Lexam) is conducted in a reasonable manner.” Thus, the letter and spirit of the NEPA process are thrown out the window in the first sentence. It is not surprising then, that the rest of the document is nothing more than boiler-plate whitewash. But then we know that “he who pays the piper calls the tune.”

4) Nowhere in the EA is there a Conclusions section stating specifically that there are “no significant impacts” or explaining how ENSR came to this conclusion. Rather, “no significant” or “minimum” impacts are simply stated and repeated, without any backup by facts or data, throughout the document. Thus, regarding soils, for example, the EA finds “minimal long-term impact.” It provides a map of soil mapping units lifted from the Saguache County Soil Survey by the Soil Conservation Service (Figure 3-2). But it does not interpret the kinds of pollution impacts that would be associated with these kinds of soil when they are associated with large-scale drilling operations. In all, there is less than half a page devoted to soils. And yet, we know that the soils in the proposed drill locations (Mosca loamy sand and Laney loam series) are have a high sand content, are porous and erodible, and thus, pollutants added to the surface would readily percolate through the soil and into groundwater, as the water table is quite shallow, averaging 7 feet or less here. Likewise, the EA devotes an inadequate one page to air quality and concludes “minimum short-term impact.” The EA does not address the significant problems of air pollution commonly associated with gas drilling elsewhere in the West, such as accumulation of surface ozone, B-tex chemicals, etc.

On the incredibly important issue of water quality of the unconfined and confined aquifers, the EA devotes less than two pages, concluding “impacts to groundwater quality less than significant” and “no impact on water use.” Regarding vegetation and habitats; the EA concludes “less than significant impacts” and “impacts minimal,” etc.

5) For all intents and purposes, then, the EA seems to have been written for and by Lexam. The Manager of the EA project was William Berg, an oil geologist. During the public meeting of February 12, 2008, it became clear from his comments that he himself has worked in the oil/gas industry. When I asked him whether ENSR could have recommended that there were significant impacts and to that an EIS was needed, he replied that that was not possible.

Further evidence that for the BNWR, this has always has been a “done deal” is that on page 2-11, the EA states: “Any action by the USFWS to totally deny Lexam the reasonable opportunity to explore for minerals would likely be considered by Lexam an unconstitutional “taking” of their private property (mineral estate) without just compensation (U.S. Constitution, Amendment V). Therefore, this alternative was considered and eliminated from detailed analysis.” The EA fails to acknowledge that the application of the legal concept of a “taking” is very controversial. Certainly, it has been advanced and manipulated by corporations for their own benefit. Under theExploring Constitutional Conflicts website, we read: “The Court has had difficulty to determine when a regulation becomes a taking. There is “no set formula” and courts “must look to the particular circumstances of the case.” So on this critical issue, the BNWR and ENSR, and by extension, the Lexam, have assumed that courts would rule in their favor, when in fact, they may not. Furthermore, why should the American government extend civil rights of American citizens (in this case the 5th Amendment of the Constitution) to a Canadian corporation, which is neither an American citizen nor a real person, but rather a legal fiction. Let’s be clear: Lexam is a Canadian corporation listed on the Toronto Stock Exchange. It should have no legal claim to the American Bill of Rights. If it does, surely those laws are “repugnant to the constitution” and should be declared illegal.

(“All laws which are repugnant to the Constitution are null and void” Marbury vs. Madison, 5 US (2 Cranch) 137, 174, 176 (1803). From Citizen’s Rule Book.

For example, here is what the Draft EA does not tell you about water:!

Americans get over half of their clean drinking water from underground sources. In 2005, the oil and gas industry was granted an exemption from the Safe Drinking Water Act, making the oil and gas the only industry allowed to inject toxic fluids directly into good quality groundwater without oversight by the Environmental Protection Agency (EPA). At the state level, most oil and gas regulatory agencies do not require companies to report the volumes or names of the chemicals being injected during hydraulic fracturing. Thus, neither the government nor the public can evaluate the risks posed by injecting these fluids underground.(www.earthworksaction.org/pubs/Fracking.pdf)

As noted elsewhere in this website, aquifers in the San Luis Valley hold 2 billion acre- feet of water, of which at least 140 million acre-feet is potable (Pearl, 1974). At the (2001) going rate of $4000 to $5000 per acre-foot, the value of this water is over $700 billion. At the rate of bottled water in Safeway ($1.29 per gallon), this amount of water would be worth over $59 trillion dollars. In other words: It is priceless!

Thousands of wells in the unconfined and confined aquifers supply irrigation and drinking water for the San Luis Valley. These aquifers are “highly sensitive” and vulnerable to infiltrating contamination because: 1) Depth to water table is shallow, averaging only about 7 feet, 2) Surface soils are typically sandy and highly porous, 3) aquifers are comprised mostly of porous unconsolidated sands and gravels, and 4) faults and fractures are common and hence, the aquifers recharge rapidly and water pollutants can move through the aquifers and mix readily.

How Oil and Gas Operations Can Contaminate Groundwater

In gas drilling, serious pollution can come from both the surface (from evaporation ponds, drilling pits, condensate, leachate, spills, etc.) and from the subsurface (by mixing of water with toxic drilling fluids, cuttings, and oil and gas). Drilling fluids used in the “hydraulic fracturing” process, used in 90% of gas wells, are exempt from regulation by the Clean Water Act. Each “frack” or “shot” requires a million gallons and causes mini-earthquakes at depth. “Fracking” fluids include a toxic suite of chemicals, including B-Tex (benzene, toluene, ethyl benzene and xylene), heavy metals, diesel fuel, VOC’s (volatile organic compounds), formaldehyde, methane, and hydrogen sulfide. Chemist, Dr. Theo Colborn of The Endocrine Disruption Program (www.endocrinedisruption.org), has found that of the 245 chemicals used, 91% have adverse health effects and 35% have endocrine disrupting effects. Through evaporation and leaching, these same chemicals also contaminate air and soils.

If coal beds are found, the mining of coal-bed methane (CBM) gas is even more toxic. In these cases, drillers pump enormous quantities of briny “produced water” from great depths to the surface and also enlarge the borehole by injecting high pressure gas into the well in a process called “cavitation.” Gas and oil themselves evaporate easily, dissolve in water, and are toxic. One component, benzene, is carcinogenic. Because hydrocarbons are less dense than water, they rapidly move upward through aquifers. Hence, gas and oil can leak upward from the confined aquifer into the unconfined (surface) aquifer. One quart of oil can contaminate 250,000 gallons of water!And concentrations of methane gas above 10 mg/l are ignitable. Well water from the confined aquifer between Alamosa and Moffat already has ignitable levels of methane. A new house east of Mosca exploded in 2003! Finally, concrete well casings typically deteriorate after 20 years, so old wells can also be a major source of pollution.

APPENDIX A. Four sample letters to BNWR that critique the Draft EA and call for a full Environmental Impact Statement

TO: Michael Blenden
USFWS
9383 El Rancho Lane
Alamosa, CO 81131
email: [email protected]
FROM: James P. McCalpin

[email protected]
DATE: 26-FEB-2008
SUBJECT: Draft EA, Baca National Wildlife Refuge

Mr. Blenden,

As a resident of Saguache County, I am disappointed by the narrow and illegal scope you have chosen for the Environmental Assessment of the Baca National Wildlife Refuge.

Over the past 15 years, I have written the technical documentation for about a dozen Environmental Assessments and EISs for projects on Federally-owned land. Thus, I am quite familiar with both the regulations and procedures of NEPA, and internal agency guidelines such as used by the USDA Forest Service.

The Draft EA released by FWS in January 2008 does not conform to the original NEPA requirements for an EA, nor to any agency’s internal requirements I am familiar with, including the FWS. It is not actually an “environmental assessment” at all, as that term is defined in NEPA, and interpreted in the FWS’s own NEPA guidelines (from the Department of Interior Manual). Thus, this document is fundamentally flawed because it does not address issues currently required by law.

There are too many individual flaws in the Draft EA to list them all. However, here are some of the more glaring examples.

1– Incorrect Handling of Cumulative Impacts:
In the Cumulative Impacts section (p. 4-3, Section 4.2.5.1), this statement appears “There are no other reasonably foreseeable future activities (RFFA) regarding oil and gas in the cumulative effects study area as Lexam’s planned activities are the only oil and gas permit applications of current record in the county (COGCC 2007).”

Whoever wrote all the Cumulative Impact sections, and tied Cumulative Impacts narrowly to only the proposed action, does not understand what the term “Cumulative Impacts” means in NEPA and within FWS rules.

In FWS rules regarding NEPA (550 FW 1) and cumulative impacts (Section 6c thereof), it is stated:
(c) Cumulative Impact Analysis. In an EIS, prepare a cumulative impact analysis that
addresses the proposed action, and a separate analysis for each alternative (if possible). This
analysis can be included within each alternative or as a separate analysis at the end of the
Environmental Consequences chapter. In an EA, a cumulative impact assessment should be
conducted if it is deemed necessary through scoping to make a determination of significance of
the proposed action. Refer to CEQ’s guidance on considering cumulative effects cited in 550
FW 1.5J. (color added).

When we refer to the CEQ guidelines on cumulative impacts cited above, they are defined as follows:
Table E-1. Incorporating principles of cumulative effects analysis (CEA) into the components of Environmental Impact assessment (EIA). Source: Council on Environmental Quality, 1997, Considering Cumulative Effects Under the National Environmental Policy Act (http://www.nepa.gov/nepa/ccenepa/ccenepa.htm)
EIA Components, and CEA Principles
Scoping
l Include past, present, and future actions.
l include all federal, nonfederal, and private actions.
l Focus on each affected resource, ecosystem, and human
community.
l Focus on truly meaningful effects.

Describing the Affected Environment
l Focus on each affected resource, ecosystem, and human
community.
l Use natural boundaries.

Determining the Environmental Consequences
l Address additive, countervailing, and synergistic effects.
l Look beyond the life of the action.
l Address the sustainability of resources, ecosystems, and human
communities.
(color added)

As you can see, “cumulative impacts” must include future impacts (direct, indirect), AND
additional future actions that arise directly from the proposed action, and the direct and
indirect impacts of those actions. Thus, when the Draft EA states “The planned exploration
wells would be the only oil and gas wells drilled on the Refuge to date…”, that statement in no
way addresses Cumulative Impacts as defined by NEPA and by CEQ.
Further, the next statement “There are no other reasonably foreseeable future activities
regarding oil and gas…” is ludicrous when applied to the proposed action, because the purpose of these wells is to assess whether full-scale gas/oil development can be performed here. Such development is, by definition, a “reasonably foreseeable future activity” if the exploration wells find a commercial deposit. How then, can the EA conclude that there are no RFFAs regarding the proposed action? That is a demonstrably false statement, and serves only to prove that cumulative impacts were never actually addressed or analyzed in this Draft EA.

Each section on Cumulative Impacts (4.2.5.1; 4.3.5.1; 4.4.5.1, etc.) contains the following statement: “No cumulative impacts have been identified…”, or “There would be no cumulative impacts…”, etc. These cookie-cutter statements indicate that there was no substantive attempt to assess cumulative impacts on the environment. Based on my 15 years experience in the EIS business, the chance that an action of this type (and its probable development follow-up), would have not a single cumulative impact on 23 different aspects of the environment* is so remote as to be negligible.

*geology, mineral resources, soils, air quality, water resources, surface water quality, groundwater quality, water use, vegetation, weeds, sensitive plants, wetlands, big game, small game, non-game species, migratory birds, fish, cultural resources, recreation, local economy, traffic, emergency services, and visual resources.

In a way, the repetitive statements “No cumulative impacts have been identified…” could be a true as far as the preparers of the EA are concerned, but only because they made no attempt to identify any cumulative impacts, and had assumed (wrongly) that cumulative impacts do not cover future actions. The truth is, this EA clearly demonstrates that there is not enough known about the BNWR ecosystem, to be able to predict one way or the other, whether there will be incremental or cumulative impacts on the ecosystem. According to NEPA, when an EA reaches such a conclusion (as it should have done in this case), then an EIS is mandated to collect the missing data, so a proper analysis can be performed.

However, rather than follow NEPA requirements, the preparers of this Draft EA simply stated, when they did not have enough data to assess an impact, that “No cumulative impacts have been identified…”. That lame statement is quite different from, and should not be confused with, saying “We have lots of data, and based on it and on similar data-supported studies elsewhere, we can confidently predict there will be no impacts.”

In my opinion, this EA has such pervasive structural flaws throughout, that it cannot be salvaged by revision. Instead, the FWS must perform an EIS that conforms to the spirit and letter of NEPA. If FWS does NOT take such an action, it may well find itself in the same situation as the US Forest Service and its EIS for the Village at Wolf Creek. There, a federal judge recently ordered the original contractor-prepared EIS thrown out due to structural deficiencies, and the USFS is now going to start all over again (after years of work), preparing a new EIS that conforms to NEPA.

So clearly, federal judges are willing to strike down environmental assessments that contain major structural defects, such as this Draft EA for the Baca National Wildlife Refuge. I would certainly be willing to testify as an expert witness before any judge that, based on my 15 years in the environmental industry, this is the most poorly prepared and written EA that I have ever seen.

The FWS attempt to circumvent NEPA in the first place by refusing to perform an EA, and then after it was sued, by creating this flawed EA, was basically a bad strategy probably adopted under outside pressure. As often happens with decisions made under pressure, the FWS would have been better off to have done the right thing last year, and to have initiated a legally-defensible EIS in the first place, rather than embarking down this dead-end road with a flawed, unsalvageable EA.

Sincerely,

James P. McCalpin, PhD
President, GEO-HAZ Consulting, Inc.
Director, Crestone Science Center
Adjunct Associate Professor, Colorado School of Mines, Utah State University
Past Fulbright Research Scholar
Certified Professional Geologist No. 7020 (AIPG); licensed in Utah
Member Association of Engineering Geologists, Geological Society of America, American Geophysical Union, etc.
_________________________________________________________________________

February 21, 2008
Mr. Michael Blenden
U.S. Fish and Wildlife Service
9383 El Rancho Lane
Alamosa, CO 81101
Dear Mr. Blenden:

Based on my close reading of the entire Lexam EA, the cumulative result of multiple misjudgments, any one of which is significant on its own, is that you need to do a full EIS before any exploratory drilling takes place in the BNWR. To do otherwise would put at risk resources far more valuable than whatever natural gas might be discovered by Lexam. What follows is a listing of a few of the many issues the EA either raises and too easily dismisses or does not raise at all.

1. Drilling. 1.6.2.2 “Lexam’s drilling operations will use fresh water-based drilling fluids, unless unforeseen downhole conditions require the use of different types of drilling fluids.”

This is typical of the vagueness of the entire document. What fluids will be used? What different types of fluids might be used under unforeseen circumstances? All fluids should not only be listed but consequences should be enumerated for any pollution that occurs to the aquifer or other components of the surface and sub-surface elements surrounding the drilling sites. Moreover, there should be a stipulation that some chemicals or combinations may be prohibited pending a judgment rendered by a qualified, objective agency appointed by the COGCC, approved by the Saguache County Commissioners and paid for by Lexam.

“The USFWS will perform another NEPA environmental review prior to any proposed oil and gas development in the Refuge.”

Since there has not been a true NEPA environmental review in the first place, you can’t actually use the word “another.” Logic dictates that the risks are greatest when breaking new ground in virgin territory; therefore, the most thorough NEPA process should be conducted before any initial steps are taken such as speculative drilling. Then, if all goes well, so to speak, and any potential harm has been clearly avoided in the initial work, the extraction process is already covered. There is too much at stake not to apply the most restrictive practices first. The reason Lexam wants to drill in the first place is because it thinks there is gas below the aquifer. You may be betting there isn’t enough to warrant extraction, but the safer bet is that there is. Therefore, an EIS would be the most protective process for exploratory drilling, and an EIS would be the logical application for development, assuming all went well with the EIS and there is gas to be developed.
Why you went ahead with an EA first can only be explained by a misguided, self-serving policy created by the oil and gas folks planted by the Bush administration in the various government agencies including your own. They hide behind the dominant tenement laws that favor mineral rights owners over surface owners much like the slave owners in 1850 counted on the Fugitive Slave Act to uphold their property rights. In both cases, the law was not and is not right on moral grounds: the former having to do with the treatment of people; the latter having to do with the treatment of the environment. Pollution is to today what slavery was becoming by 1860. The so-called EA thus far produced may save Lexam money up front, but it gives considerably less protection to the habitat you are charged with managing and to the wider community surrounding the refuge. Drilling and protection may not be mutually exclusive, but the protection the EA currently affords is far from adequate.

2. 2.2 Proposed Action Alternative (4) “Impacts to sensitive habitat, wildlife, plants or other sensitive natural, cultural or historical resource features will be avoided to the extent possible while constructing the access road and well pads.”

This statement is toothless, narrowly directed, and vapid. There is not as much as a hint of any real responsibility on anyone’s part to do anything in the way of modifying behavior or holding anyone accountable. In short, it says nothing. It also does not take into account the significant vulnerability of Crestone’s cultural uniqueness and ambience that will be threatened if not permanently ruined by gas drilling in the BACA. Nowhere in the entire EA document is there any recognition of Crestone’s unique cultural properties and how much silence, serenity, and seclusion are necessary to its functioning as one of the world’s foremost spiritual retreat centers. It is a spiritual resource center recognized worldwide as well as recently by such mainstream publications as U S New and World Report and the New York Times. http://travel.nytimes.com/2008/01/11/travel/escapes/11crestone.html
http://www.usnews.com/articles/news/sacred-places/2007/11/16/a-spiritual-community-takes-root.htm )

Gas drilling would be more than just a proverbial turd in the Crestone punchbowl. It would drive away a significant number of pilgrims to our spiritual centers and therefore decimate the local economy. Hearing, smelling, and seeing an upwind gas drilling operation nearby would completely undermine the ambience and economy of this sacred community. This alone is reason enough to warrant a full EIS.

3. Smoking. p. 2-5. “Cigarette butts are considered litter.”

I find it hard to believe that cigarette smoking would be allowed in the BNWR. Given the danger fires pose for Crestone and the entire western slope of the Sangre de Cristos as well the usually extremely arid aspect of the valley surrounding the proposed drill sites, smoking should be banned. This is not an unreasonable request given the circumstances of prevailing WSW winds and the potential extreme fire danger to Crestone this drilling operation poses anyway. If smoking is permitted, the entire region will be put at risk, especially with only one access road (County Road T) in and out of this sacred community.

4. 1.5.1.1 Excepted Mineral Rights “In this Manual, the USFWS provides for the exercise of non-federally owned mineral rights while protecting USFWS resources to the maximum extent possible.” (my italics). How are the following statements even close to an attempt to protect USFWS resources to the maximum extent possible?

A. P. 2-4, 29) “It is highly recommended that an auger tank be used…” (my italics)
Why is this not required?

B. P. 2-1, 5) “All disturbed areas will be reclaimed per the COGCC requirements and with USFWS input. (my italics)
Why not to the maximum extent possible as determined by the USFWS and Saguache County?

C. P. 2-2, 18) “All materials brought into the Refuge to build up the location pad will be authorized by the Refuge Manager…” (my italics)

Don’t you mean must be authorized ? Otherwise, the statement gives Lexam a blank check.

D. P. 2-3, 25) “Dust levels on regularly traveled access routes must be kept to a minimum.” (my italics)

First, there is the issue of regularly traveled. Why not all?
Second, what does kept to a minimum look like? How is it measured? In effect, the requirement has no teeth whatsoever.

E. P. 2-4, 30) “A site reclamation plan may be required by the Refuge Manager…”
Why not is required?

5. 2.5.1 Suspend Drilling Until Completion of a Comprehensive Conservation Plan “Suspension of the planned drilling…is considered an unreasonable constraint on Lexam’s rights to develop its mineral estate.”
Is considered by whom? Whose consideration is determining that position? A wildlife manager, given his mission, certainly would not take that position.
Here is the problem, as I see it. By allowing Lexam to operate exploratory drilling under this flimsy EA, you open the door to a suit by Lexam to extract any significant findings under the same conditions outlined in this so-called EA. If you have already allowed exploratory drilling and it was deemed of insignificant impact, why not full scale production? At what point is significant impact defined? How many acres of the whole Refuge does it take to move from insignificant to significant? Exploratory drilling is the camel’s nose under the tent. Therefore, it is better to require a full EIS up front rather than let the camel sniff around first and then try to control his next move once he smells gas.
I would contend that if Lexam wants to get going on drilling, let them provide the financial resources that enable the USFWS to proceed expeditiously with the CCP. If not that, at least proceed with a legitimate EIS, the result of which may either open the door for gas drilling or call for the CCP to be completed before any further action of any kind is taken or perhaps some other course of action. In effect, an EIS would serve as a compromise between an EA and the completion of the CCP. That way, the least restrictive analysis (the current draft EA) is not used as leverage later on to prevent tighter restrictions should gas be discovered.

I won’t go into all the other toothless statements contained in this appallingly inadequate document called an EA, paid for by a Canadian company that has a vested interest in the outcome. I am sure the company hired by Lexam to produce the EA does not stay in business by protecting the environment. Suffice it to say that I have never felt so vulnerable to a government agency’s irresponsible behavior as I do right now. The only solution is to implement a full EIS before any drilling activity commences.

Sincerely,

Bruce A. Blodgett

CC: Governor Bill Ritter, 136 State Capitol, Denver, CO 80203-1792

Representative John Salazar, 609 Main Street #6, Alamosa, CO 81101

Senator Ken Salazar, 609 Main Street #10, Alamosa, CO 81101

Dave Neslin, Acting Director of the COGCC, 1120 Lincoln St. Ste #801, Denver, CO 80203

Saguache Board of County Commissioners, P.O. Box 655, Saguache, CO 81149

Robbie Roberts, Regional Administrator, U.S. EPA Region 8, 1595 Wynkoop St., Denver, CO 80202-1129

Senator Gail Schwartz, 200 E. Colfax, Denver, CO 80203
________________________________________________________________________________________________________________

February 22, 2008

Michael Blenden
U.S. Fish and Wildlife Service
9383 El Rancho Lane
Alamosa, Colorado 81101

Regarding: Draft Environmental Assessment (EA) of Planned Gas and Oil Exploration in the Baca Wildlife Refuge, located in Saguache County, Colorado

Dear Mr. Blenden,

With all due respect, reading the draft EA is indeed a sobering experience. This document contains incomplete, misleading, and erroneous information. This EA should not be allowed to stand. The purpose of this letter is to highlight some of that misinformation, and to therefore request, again, with all due respect, that a more thoroughly researched Environmental Impact Statement (EIS) be produced before any exploratory drilling is contemplated for the Refuge.

• The EA document states it is in compliance with the federally mandated NEPA process. The truth is no NEPA was followed. Not following NEPA is against the federal law. This needs to be corrected with an EIS.

• The EA document states that the U.S. Fish and Wildlife Service (hereafter called the “Service”) has a responsibility to protect the surface estate of the Refuge and its associated resources. But without a comprehensive conservation plan (CCP), the Service can not determine what currently exists on the Refuge. So it is misleading to state that the Service is protecting the Refuge with this EA. Again, this can be corrected with an EIS.

• A CCP has not been completed due to lack of adequately trained professionals to undertake this multi-year evaluation. At least that is what the EA states. Yet the EA also states that it will provide trained environmental monitors, a biologist, and archeologist plus additional USFWS law enforcement personnel to Lexam (see page 2-1). How is it that a federal agency who can’t do what the law mandates, i.e., assess the current resources within the Refuge, afford to pay for staff who will perform functions for a private oil and gas company?

• The EA states that it will continue to consult with local emergency response personnel (page 1-18) who would then be available should an emergency develop. It is misleading to assume that local staff can continue to consult and provide emergency assistance without financial support from Lexam or the federal government who is, at the same time, supporting oil and gas exploration on the Refuge. The inference is that the community most impacted, Crestone, can pay for these services. That is because the EA also states that Crestone is not low income nor inhabited by minorities (who historically have lower incomes than Caucasians). The truth is quite a bit different. Saguache county median family income is $23,638, which means 22.7% of the population lives below poverty. In addition, 45.4% are persons of Hispanic or Latino origin (http://quickfacts.census.gov/qfd/states/08/08109.html). People move out of Crestone because they can not find sustainable jobs in the town. Draining Crestone’s tax base by having its emergency staff help Lexam is an unfortunate and insensitive proposition. Stating that Crestone is not low-income nor minority demonstrates how little the Service knows about the community closest to where drilling is proposed. The staff that are responsible for the EA never walked down a street in Crestone. If the EA staff is so ignorant of the major town which would be impacted by drilling, how sensitive are they to the remainder of the San Luis Valley?

• The EA states that the use of the surface estate is reasonable and does not cause undue surface disturbance (page 1-4) because of the limited scope of Lexam’s proposed drilling project (page 1-6). This is misleading at best, and most assuredly not the truth. According to various statements throughout the EA, this project will:

1. Span a time period of at least 6 months (in addition to one month of road building before drilling begins, as well as the time necessary after project completion for total reclamation activities).
2. During those months drilling with occur all day and all night.
3. There will be trucks and other vehicles, including ATVs (again, according to this EA document on page 2.5), going into and out of the Refuge at unprecedented numbers. The EA states that there will be 30-60 trucks needed for location preparation; 250 truckloads of equipment per well; and at least bi-weekly transportation of septic waste and other trash. This does not even include the traffic of workmen and supervising personnel.
4. There will be strong lighting provided for the drilling rigs and this is discussed at great length (page 4-20). Since the EA states that only one tree exists on the proposed site, there will be no shield to protect against such reflections. Currently a person can look across the valley from Crestone and see the San Juans which are over 50 miles away. Lights from Moffat are readily apparent in Crestone; lights from Crestone can be seen 14-16 miles away on Highway #17. It is not true as the EA states that drill sight lighting will not be seen over 2 miles away from the source of those lights. Nocturnal animals will most assuredly be negatively impacted by these strong lights, if there are any nocturnal animals left after drilling begins.
5. The Service is required to abide by the Migratory Bird Treaty Act and Migratory Bird Conservation Act (page 1-8). Yet some of our area’s most important birds and fish will, according to the EA (pages 3-24 to 3-31) be impacted negatively by drilling. In fact, the bald eagle, the Ferruginous hawk, the American Peregrine falcon, and the Greater Sandhill crane, as well as other birds and fish, have all been documented within the project area. Birds will not stay in an area resounding with noise from 24/7 drilling equipment.
6. The EA states that all vehicles entering the refuge will be power-washed to prevent soil contamination and introduction of plants not indigenous to the area (p. 1-4). This water, dripping from large transport trucks, will seep into the soil; further runoff may go into the wetlands. This most assuredly will unduly impact the surface estate. Or is Lexam’s plan to pack all this water out of the Refuge? Or is this washing of vehicles to occur at the junction of the T-road and the “Lexam” Road?
7. The EA states that roads and drill pads will cover a surface area of approximately 14 acres. Later in the document (page 3-1) the EA revises the project area to 5,200 acres. It is not clear what would happen on these additional acres, but what is clear is that Lexam will be disturbing a significant portion of the Refuge. It is not true that this event will not seriously impact the surface estate.
8. According to the EA 32% of the project (32% of the 5,200 acres) is on wetlands (section 3.5.1.1) yet the EA states that no “long-term” damage to fish and aquatic life is expected. At best this is a gross underestimation of damage that could occur; at worst this is a lie. Certainly without a CCP no one knows the extent of the aquatic life existing there now. How could anyone suggest a judgment on the ‘long-term impact’ of any man-made activity on this property?
9. Full-scale drilling is scheduled from August 1 through April 30th (See item #13, page 2-2). It is during this period that large animals such as elk mate, and migratory birds breed and nest. It is not true that such drilling will have no significant surface disturbance.
10. According to the EA (page 3-18) the entire project area (5,200 acres) is considered pronghorn winter range; the eastern half of the project area is considered mule deer winter range; and elk populations within the project area peak during winter months. Drilling will occur during winter months.
11. Other wetlands, specifically the La Blanca Wetlands located between the Baca Wildlife Refuge and its wetlands and the Sand Dunes National Park is closed to people between February 15th and July 15th. The sign at the gate indicates such closure is for breeding and nesting of birds. How can breeding and nesting activities be protected in one sensitive area and not in a contiguous area? Therefore it is not true and very misleading to say, as the EA does, that surface disturbance in the Baca will not occur with drilling. The inconsistencies in federal interpretation of policies are alarming. Application of such inconsistencies appears illegal.

In all fairness, there are some statements in the EA that are probably correct.

• Lexam will probably not have to fence the drill pads to protect animals from entry (page 2-2, item #14). Every animal within a 10-mile radius will have fled the area because of the noise, air pollution, and out-right fear.
• The EA is probably correct: most Lexam drillers will reside in Alamosa because of the number of restaurants and hotel rooms available. However, it is also a fair assumption that men who work 12-hour shifts, as this EA states, may not be keen on adding two additional hours per day traveling to and from work. That doesn’t allow much time for a beer after work.
• The EA does in fact prohibit all fires in the project area. And it even prohibits litter from cigarettes. Amazing, cigarette smoking allowed in an area the EA itself states will contain hazardous chemicals.
• It is true, as the EA states, that most of the almost 50,000 responses to the Service expressing non-support for oil and gas drilling in the Baca National Wildlife Refuge were generated through an e-mail alert sent to 650,000 members of the Natural Resource Defense Council. Fourteen thousand (14,000) responses were from Colorado residents disgruntled by this proposed project. But in fairness, and according to statements made by you, Mr. Mike Blenden, 1,000 of those letters came from citizens here in the Valley. All responses except three (3) were very concerned about proposed drilling (page 5-2). So in all fairness, there are some people who support this project: 3.

Sincerely,

Bonnie M. Orkow, Ph.D.

86 Baca Grant Way North, Crestone, CO 81131 And 200 Adams Street, Denver, CO. 80206

CC: Jay Slack, Acting Director, U.S. Fish and Wildlife Services

Representative John Salazar

Senator Ken Salazar

Senator Wayne Allard

Governor Bill Ritter

David Neslin, Acting Director, Colorado Oil and Gas Conservation Commission

Saguache Board of County Commissioners
______________________________________________________________________________________________________________

February 22, 2008

Mike Blenden
Baca National Wildlife Refuge
Alamosa/Monte Vista National Wildlife Refuge Complex
9383 El Rancho Lane
Alamosa, CO 81101

Dear Mike Blenden:

The San Luis Valley should remain a region without gas and oil drilling. Regarding the potential for gas and oil, it should be noted that San Luis Valley is the northern extension of the Rio Grande Rift, which is one of five major rifts in the world, and that there is no significant production of oil and gas in any of them. Although many exploration wells have been drilled to depths of over two miles in the Rio Grande Rift to the south, there have been no big finds of gas and oil. However, Lexam, the company that wants to profit by invading our public wetlands in the Great Sand Dunes National Park and Reserve claims that test wells they drilled in 1995 had “oil shows.”

ENRI, a private consulting group paid by Lexam, whose interests were being represented, prepared the Draft EA resulting in a FONSI (Findings of No Significant Impact). What would you expect if you paid for an outcome? It recommends that Lexam’s proposed drilling should go forward. To suggest that drilling three 14,000 foot exploratory gas wells through sensitive wetlands and into one of the continents largest and most valuable aquifers is preposterous. In order to come to this conclusion, ENRI and the Administration of the Baca National Wildlife Refuge had to ignore significant impacts, including potential groundwater contamination, air pollution, noise pollution, light pollution, damage to sensitive riparian ecosystems, enormous agricultural areas, damage to archaeological sites and sacred areas of modern Native Americans, and damage to the surrounding communities as well as to the Great Sand Dunes National Park and Preserve.

How does our present government justify intrusion by corporate interests into public lands and public parks without the consent and guidance of its citizens? This is not an issue simply of obtaining an Environmental Impact Statement. It is an issue where inhabitants of the region and U.S. citizens should decide whether drilling for oil and gas should take place in the Baca National Wildlife Refuge (BNWR) Wetlands along the Sangre de Cristo Mountains. It is an issue of whether the government can invite intrusion by corporate interests into public lands and public parks without the consent and guidance of its citizens

Gas and oil mining in the rest of the Rocky Mountains is having tremendously adverse impacts on the environment, destroying pristine natural beauty, sullying wetlands, and polluting our water. Let’s protect the agricultural lands, wild lands and wetlands of our nation.

Sincerely,

Thomas B. French

Thomas B. French, HC 68 Box 139 , 506 Upper Ranchitos Rd. Taos, NM 87571, 505 758-3827

_______________________________________________________________________________________________________________

Michael Blenden 2/28/08
U.S. Fish and Wildlife Service
9383 El Rancho Lane
Alamosa, CO 81101
Email: [email protected]

1) The present cabinet boasts more CEO’s than any in history. Most come from the energy, extractive and manufacturing sectors that rely on giant subsidies and create the worst pollution. Almost all the top positions at the agencies that protect our environment and oversee our resources have been filled by former lobbyists for the biggest polluters in the very businesses that these ministries oversee. These men and women seem to have entered government with the express purpose of subverting the agencies they now command.

Robert F. Kennedy, Jr., Crimes Against Nature: How George W. Bush and His Corporate Pals Are Plundering the Country and Hijacking Our Democracy (2006)

2) The U.S. government is being run like a franchise by private corporations.

Michael Ruppert

3) Laws are like cobwebs, strong enough to detain only the weak, and too weak to hold the strong.

Anarcharis, 500 B.C.

4) The 20th century has been characterized by three developments of great political importance: the growth of democracy, the growth of corporate power, and the growth of corporate propaganda as a means of protecting corporate power against democracy.

Alex Carey

5) A government should not solicit input from its citizens for the purpose of decision-making if they are simply going to ignore it.

Taos citizen at public hearing

I am attaching the bound contents of my Water Watch Alliance website (http://WaterWatchAlliance.googlepages.com) with this letter. I understand that Lexam paid ENSR nearly a million dollars to come up with their FONSI (“finding of no significant impact’) in the Draft EA submitted on January 18, 2008. By contrast, I have a staff of only one and no budget at all. Nonetheless, on this website (this volume) and in this letter, I have documented that the proposed gas drilling activity by Lexam would have many, many adverse and significant impacts to our unique and irreplaceable San Luis Valley. I invite you to consider the information and perspectives in this document, along with this letter, as my input regarding the draft EA. I suggest that the amount of truthful and useful information in this website/document probably far surpasses that included in the draft EA, which we should best regard as “corporate propaganda,” as per quote 4 above. I hope that this information I and others are supplying you might be useful for those groups or individuals charged with writing the Environmental Impact Statement that NEPA so clearly mandates in this case.

Under the present Bush administration, the oil and gas industry has commandeered our federal agencies and federal lands for its own purposes. The analogy of “the fox guarding the chicken coop” is an appropriate one. Thus, it is not surprising that the Baca National Wildlife Refuge (BNWR) has been out of compliance with the National Environmental Policy Act (NEPA) from the very beginning and remains so today. The Draft Environmental Assessment, a FONSI (“finding of no significant impact”) written by ENSR, is a cynical whitewash of a document that generally fails to address impacts and certainly fails to fulfill the requirements of NEPA. Because the impacts of the proposed drilling activity are indeed significant, adverse, cumulative, and controversial, as defined by NEPA, this draft EA fails to meet NEPA requirements. Rather, it will be necessary for the USFWS to conduct a full-scale Environmental Impact Statement in order to comply with the law.

As a resident of the Baca community, I have been involved in the public process regarding the proposed Lexam drilling since it first began in August, 2006. The experience has been frustrating, mainly because representatives of the BNWR, ENSR, and Lexam have acted in concert to subvert and undermine the NEPA process. For these individuals, the proposed drilling has always been a “done deal.” And though they are now legally bound to give the appearance of complying with NEPA, they have continually undermined and circumvented the NEPA process itself. Representatives of the BNWR have apparently even redefined NEPA so that, to them, it is simply means they need to try to mitigate Lexam’s activities. Hopefully, Federal judges will not accept the USFWS attempts to redefine NEPA. The Bush/Cheney administration program of turning the Rocky Mountain states into an “energy colony” and “national sacrifice zone” was never debated by Congress or approved by the American people. The American people reject this desecration of our land and this subversion of our democracy.

Based on the information I have compiled herein, I conclude that the relative value of the BNWR surface estate plus that of the priceless groundwater underneath the San Luis Valley far surpasses any amount of natural gas which might underlie the BNWR.

History of NEPA on the BACA

The BNWR began working to facilitate Lexam’s drilling project BEFORE initiating the NEPA process. In fact, Ron Garcia, Manager of the BNWR, initially informed our community that the BNWR was NOT legally required to comply with NEPA. The way the project was introduced to our Crestone/Baca community indicates that representatives of the BNWR had already been working with Lexam, other federal agencies (the National Park Service and the BLM), and the Sonoran Institute (a non-profit organization) to limit the scope and effectiveness of public response. This a priori collusion between government and industry suggests that the BNWR is acting on orders from senior officials in the Department of the Interior and/or the White House itself to “expedite” this drill play rather than follow the federal laws that are in place to protect public lands and public health and ensure that the American citizens have a role in the decision-making process. Unfortunately, similar attempts to circumvent NEPA are now also happening elsewhere in the U.S. due to this administration’s disregard for law (htt://pubs.acs.org/subscribe/journals/esthagw/2007/nov/policy/jp_nepa.html).
Only after the Energy Minerals Law Center lawyers sued the BNWR did the BNWR belatedly “decide” to initiate the NEPA process. How they did it, again, indicates their primary purpose was to do an end-run around NEPA. Ron Garcia, BNWR Manager, emailed 52 people from our community at 4:44 pm on August 7, 2007, notifying us that the BNWR was initiating a scoping process/Environmental Assessment at a public meeting to be held 10 days later, on Friday, August 17th, from 5:00 to 8:00 pm. His email was entitled: “Notice of Public Meeting to Discuss Resource Protection Issues Related to Gas Exploration Activities on Baca National Wildlife Refuge.” The notice did not state: “issues related to proposed gas exploration activities.” For the BNWR, it has always been and remains a “done deal,” even though NEPA law requires a fair and open process with public input and acquisition of relevant scientific data to determine if there are significant impacts associated with the proposed project.

Again, that the BNWR did NOT give customary notice of this meeting in our local newspapers and gave us only 9 days to prepare for the meeting indicates they were trying to limit our public input and response. Nonetheless, citizens from our community filled the scoping process meeting on August 17th and argued passionately and persuasively for three hours that drilling on the BNWR; 1) would degrade the surface estate and resources of the wildlife refuge and therefore is not a “reasonable or compatible use” of the refuge, 2) is not compatible with the cultural values of our community and region, and 3) would cause serious contamination of water, air, and degrade our roads and communities, as well as wildlife habitats in this still pristine and spectacular area. No one from the BNWR recorded our comments. Rather, Michael Blenden instructed us earnestly to write down our scoping comments, send them to him, and by law, the BNWR and ENSR would have to respond to each comment. Over the next 30 days, some 48,500 people sent in responses that were overwhelmingly in opposition to the drilling. This in itself indicates that the proposed action is extremely controversial and unpopular. However, based on the contents of the Draft EA, it appears that our written comments have almost entirely been ignored.

What is NEPA?

According to NEPA lawyer Travis Stills, NEPA (National Environmental Policy Act of 1969) is the “Magna Carta of environmental protection” and was written in order to address the problem of “agency capture,” i.e., situations where federal agencies and industry “forget who is who and start acting like each other.” (Clearly, the way this NEPA process has unfolded indicates that “agency capture” has occurred, despite NEPA.) NEPA is an “action forcing process” that mandates public participation and an interdisciplinary approach in the acquisition of relevant scientific data so that decisions affecting special areas and communities are not just made by industry alone. NEPA mandates that the BNWR understand and respect the “cultural values” of the San Luis Valley and our Crestone/Baca community. It also requires that cumulative, synergistic impacts be examined and that “alternatives” to satisfy the “purpose and need” of the project be considered and assessed.

NEPA mandates the disclosure of impacts, alternatives, and projected mitigation measures. One of two kinds of studies must be completed before a proposed project can go forward on federal land. An Environmental Assessment (EA) is used when there are “no significant impacts” (i.e., no unique and exceptional circumstances) associated with the proposed project. A more rigorous Environmental Impact Statement (EIS) is required when there are “significant impacts” associated with the proposed project.

1) Impacts that may be both beneficial and adverse.

2) degree to which the proposed action affects public health and safety.

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) degree to which effects on the quality of the human environment are likely to be controversial.

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

6) 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) degree to which it is reasonable to expect cumulatively significant impacts on the environment.

8) 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) degree to which the action may adversely impact an endangered or threatened species or its habitat- as determined under the Endangered Species Act of 1973.

10) whether an action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment.

Note that the proposed drilling meets each of these ten criteria for “significant” in terms of context and intensity!

As we will see, even a cursory examination of the many issues related to drilling three 14,000-foot gas test wells on sensitive wetlands in the BNWR, indicates that the proposed action has very severe impacts, and thus, is highly significant in each of the above ten categories.

Despite the abundance of severe and significant impacts associated with the proposed project, the BNWR selected a private contractor, ENSR, to write an EA rather than an EIS. Note again, that EA’s are appropriate only when there is a finding of “no significant impact” (FONSI). However, industry prefers EAs because they are typically written in a relatively a short time interval and do not require the acquisition of new, baseline scientific data. In addition, the fact that Lexam itself paid ENSR to write the EA is clear conflict of interest. By contrast, a full-blown Environmental Impact Statement (EIS) is a much more thorough study requiring acquisition of new scientific data and normally takes about two years to complete. And EIS also involves the participation of the EPA (Environmental Protection Agency).

The BNWR called a public meeting on February 12, 2008, as required by NEPA, to obtain input from our community on the Draft EA. Lexam and ENSR representatives were in attendance, as well as those of the USFWS. That the issue is “controversial” is indicated by the fact that the room was packed with about 75 people and the meeting lasted 4 hours. The community unanimously argued that “significant impacts” are associated with the proposed project, and thus, a full Environmental Impact Statement must be completed. Community members demonstrated their knowledge and understanding of NEPA and the issues. We argued that 1) the context and intensity of expected impacts associated with the proposed drilling all indicate “significant impacts,” and 2) that the Draft EA does not address the many specific issues we as a community had already raised in the approximately 48,500 letters submitted during the scoping process.

ASSESSMENT OF THE DRAFT ENVIRONMENTAL ASSESSMENT: A “FONSI” (FINDING OF “NO SIGNIFICANT IMPACT”) AND CLASSIC WHITEWASH!

The BNWR released the Draft EA on January 18, 2008 (http://www.fws.gov/alamosa/BacaNWR.html). My observations about the draft EA are that Blenden and ENSR are in violation of the NEPA policy in several keys ways:

#6 (above, under intensity of impacts) requires that NEPA examine 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 (above) talks about “degree to which it is reasonable to expect cumulatively significant impacts on the environment”

3) The document starts with the a priori assumption that Lexam will drill and the role of the BNWR is to help mitigate impacts. The first sentence of page 1-1 is: “The purpose of the Environmental Assessment (EA) is to ensure that initial exploration of the mineral estate under the Baca National Wildlife Refuge (Refuge) by Lexam Explorations (U.S.A.) Inc. (Lexam) is conducted in a reasonable manner.” Thus, the letter and spirit of the NEPA process are thrown out the window in the first sentence. It is not surprising then, that the rest of the document is nothing more than boiler-plate whitewash. But we know from experience that “he who pays the piper (in this case, Lexam) calls the tune (in this case the Draft EA).”

4) There is no Conclusions section at all in the document that specifically states how ENSR has arrived at the conclusion that there are “no significant impacts” or that explains how ENSR came to this conclusion. Rather, “no significant” or “minimum” impacts are simply stated and repeated throughout, without any backup by facts or data, throughout the document. Thus, regarding soils, the EA finds “minimal long-term impact,” regarding air quality: “minimum short-term impact,” regarding water; “impacts to groundwater quality less than significant” and “no impact on water use;” regarding vegetation and habitats;” less than significant impacts” and “impacts minimal,” etc.

5) For all intents and purposes, then, the EA was written for and by Lexam. The Manager of the EA project was William Berg, an oil geologist. During the public meeting of February 12, 2008, it became clear from his comments that he himself has worked in the oil/gas industry. And when I asked him directly if it would even have been possible for ENSR to have concluded that there were significant impacts and to recommend an EIS, he replied that that was not possible. Thus, it appears that indeed, “the fix is in,” the document begins with its ruling premise (no significant impacts) and then simply supports that conclusion as best it can. This is the opposite of the scientific method. Examples which indicate the built-in bias favoring Lexam’s project include:

a). On page 2-11, the EA states: “Any action by the USFWS to totally deny Lexam the reasonable opportunity to explore for minerals would likely be considered by Lexam an unconstitutional “taking” of their private property (mineral estate) without just compensation (U.S. Constitution, Amendment V). Therefore, this alternative was considered and eliminated from detailed analysis.” The EA fails to acknowledge that the application of the legal concept of a “taking” is very controversial. Over the past two decades, it has increasingly been advanced and manipulated by corporations for their own benefit, of course. However, under the Exploring Constitutional Conflicts website, we read: “The Court has had difficulty to determine when a regulation becomes a taking. There is “no set formula” and courts “must look to the particular circumstances of the case.” So on this critical issue, ENSR and the BNWR, and by extension, Lexam, have assumed that courts would rule in their favor, when in fact, they may not. Furthermore, why should the American government extend civil liberties of American citizens (in this case the 5th Amendment of the Bill of Rights) to a Canadian corporation, which is neither an American citizen nor a real person, but rather a legal fiction. Let’s be clear: Lexam is a Canadian corporation listed on the Toronto Stock Exchange. It should have no legal claim to the American Bill of Rights. If it does, surely those laws are “repugnant to the constitution” and should be declared illegal.

(“All laws which are repugnant to the Constitution are null and void” Marbury vs. Madison, 5 US (2 Cranch) 137, 174, 176 (1803). From Citizen’s Rule Book.

Specific issues ignored by the Draft EA that I raised in my scoping letter 9/5/07

Like so many others who worked hard to submit scoping comments, my comments were ignored by the BNWR and ENSR in the draft EA. I attach a copy of my 9/507 scoping letter for reference. On page 2, I mention that, by their own admission, Lexam hopes to strike on the order of a tcf (trillion cubic feet) of natural gas. Indeed, they would not want to invest about $30 million to drill three 14,000-foot test wells unless they felt there was a high probability of success. Hence, by NEPA’s own criteria, we must look at the drilling of the test wells as a “precedent setting activity” that could result in “cumulative impacts” and synergistic effects in the event of “success” and the commencement of full-scale gas production. Indeed, if gas is struck by the test wells no new permit is required to begin extracting fossil fuels. This issue is not addressed in the draft EA, but rather, is obfuscated and dodged in Michael Blenden’s cover letter when he blithely states that “the scope of this EA does not address production of natural gas and oil from any of the wells described above. If necessary, the Service regulation of production and associated transportation would be the subject of a separate analysis pursuant to the NEPA.” These statements, in the second paragraph of Blenden’s cover letter, indicate that the USFWS has failed to recognize the “precedent setting” nature of the proposed drilling or the “cumulative impacts,” and “synergistic effects” of production and transportation of natural gas on the BNWR. Thus, the USFWS is out of compliance with NEPA from the very beginning. In my graduate computer classes, we had a phrase: “garbage in, garbage out,” or GI-GO. If your assumptions are erroneous, you conclusions will be erroneous as well.

On page 7, I asked the question whether this drill-play may have something to do with a government-corporate strategy that might relate to Vice President Cheney’s Energy Task Force. Is this why they are trying to get into “the best places first” as former National Forest Supervisor Gloria Flora observed. Could this proposed activity have anything to do with U.N. Agenda 21? And although this issue was not addressed in the Draft EA, I would like to pose an additional question: Might this project relate to a relatively secret mega-project by U.S. Federal Agencies to build “Energy Corridors on Federal Lands in the 11 Western States?” A pending EIS on this project describes that the lead agencies for this proposed project are the US Department of Energy, U.S. Department of the Interior, BLM, US Forest Service, U.S. Department of Defense, U.S. Fish and Wildlife Service, the State of Wyoming and 10 other agencies. Might this gas play then relate to a future energy corridor being planned for the area along the present Highway 50 in Colorado? If so, why all the secrecy?

In my scoping letter, I identified 15 areas of concern and adverse impacts. I don’t space or energy to do a point-by-point analysis. However, examination of just a few of the critical areas will reveal that these many of these impacts are significant based on NEPA definitions.

I) Impacts on groundwater and water quality

In my scoping letter of 9/507, I detail many ways in which the proposed drilling and related activities could and would contaminate surface and groundwater. These include:

a) the sensitive nature of the aquifers
b) near-term impacts of aquifer pollution on humans, in terms of drinking water and irrigation
c) contamination of aquifer wells already in existence.
d) long-term contamination of aquifers by gas drilling, hydraulic fracturing, evaporation ponds, leaks, spills, accidents, additions of produced water at the surface, etc. (page 2)
e) potential impacts of water contamination on downstream users (page 1) based on Rio Grande Compact.
f) specific chemical pollutants/contaminants, methane, fracturing fluids, B-tex (benzene, toluene, ethyl benzene, zylene), diesel feul, hydrogen sulfide, heavy metals, VOCs, formaldehyde and PAH’s (Colborn, 1997). Propolene glycol used on well pads is fatal for animals.
g) deterioration of concrete casings over time will cause future pollution of aquifer
h) and why should local county officials accept that each gas well is automatically exempt from following the safety standards for clean water outlined in the Clean Water Act and Safe Drinking Water Act?

Note that each of the above factors and all of them taken cumulatively would have significant impacts as defined by NEPA criteria, including:

#2 – affects public health and safety,
#3 – affects parklands, farmlands, wetlands, ecologically critical areas,
#4 – affects on quality of human environment are controversial,
#5 – highly uncertain, unique, unknown risks,
#6- sets a precedent for future action,
#7) cumulative impacts,
#9) action may threaten endangered or threatened species.
#10) threatens violation of federal, state or local law.

Interestingly, during the public meeting on the draft EA, William Berg, main author of the draft EA and himself an oil geologist, challenged me to prove that gas drilling on the Baca Refuge would contaminate the aquifer. Of course, no one can prove a future occurrence. However, the sheer number of accidents that have occurred in the gas fields of Colorado resulting in pollution of wells, ponds, and aquifers, explosion of buildings, etc. is proof that this kind of activity frequently pollutes groundwater. As Peggy Utesch of the Grand Valley Citizen’s Alliance stated regarding EnCana’s drilling activities near Silt, Colorado: “We know there are accidents every day. All you have to do is look at the (COGC) Commissions’ reports.” I document many accidents associated with gas drilling activity on my website: http://WaterWatchAlliance.googlepages.com. Please go to the page on Accidents in the Gas Fields.

These kinds of impacts, by and large, are not addressed at all in the Draft EA. Therefore, a full EIS is required. To the concerns I raised in my scoping letter, I would now add the following concerns:

The Regulations Fall Short!

San Luis Valley Water: A Fragile Abundance

A 1974 geological report estimates that aquifers in the San Luis Valley hold 2 billion acre feet of water, of which at least 140 million acre-feet is potable. At the (2001) going rate of $5,000 to $12,000 per acre-foot, the value of this water is over $700 billion to $1.7 trillion. In other words: It is priceless!

How Oil and Gas Operations Can Contaminate Groundwater

In gas drilling, serious pollution can come from both the surface (from evaporation ponds, drilling pits, condensate, leachate, spills, etc.) and from the subsurface (by mixing of water with toxic drilling fluids, cuttings, and oil and gas). Drilling fluids used in the “hydraulic fracturing” process, used in 90% of gas wells, are exempt from regulation by the Clean Water Act. Each “frack” or “shot” requires a million gallons and causes mini-earthquakes at depth. “Fracking” fluids include a toxic suite of chemicals, including B-Tex (benzene, toluene, ethyl benzene and xylene), heavy metals, diesel fuel, VOC’s (volatile organic compounds), formaldehyde, methane, and hydrogen sulfide. Of the 245 chemicals used, 91% have adverse health effects and 35% have endocrine disrupting effects (www.endocrinedisruption.org). Through evaporation and leaching, these chemicals also contaminate air and soils.

If coal beds are found, the mining of coal-bed methane (CBM) gas is even more toxic. Then, drillers 1) pump enormous quantities of briny “produced water” to the surface, and 2) enlarge the borehole by injecting high-pressure gas into the well. Gas and oil themselves evaporate easily, dissolve in water, and are toxic. One component, benzene, is carcinogenic. Because hydrocarbons are less dense than water, they rapidly move upward through aquifers. Hence, gas and oil can leak upward from the confined aquifer into the unconfined (surface) aquifer. One quart of oil can contaminate 250,000 gallons of water! And concentrations of methane gas above 10 mg/l are ignitable. Well water from the confined aquifer between Alamosa and Moffat already has ignitable levels of methane. A new house east of Mosca exploded in 2003! Finally, concrete well casings typically deteriorate after 20 years, so old wells can also be a major source of pollution.

For more information, check http://WaterWatchAlliance.googlepages.com.

II) Potential Impacts from Hydraulic Fracturing and Mining of Coal Bed Methane (CBM) Gas

To consider the even more profound and adverse impacts associated with hydraulic fracturing and mining of coalbed methane gas, please refer to the appropriate sections of my website (appended volume).

III) Air pollution

Gas wells cause photochemical smog. Photochemical smog is formed where volatile organic compounds and nitrogen oxides mix in the presence of sunlight. Although often termed “haze” when associated with gas wells, the chemicals and the effects are identical to that of smog in our large western cities and include a loss of visibility and formation of secondary pollutants such as ground level ozone and sulfur trioxide. Today, the clear atmospheric conditions in the San Luis Valley are some of the best for solar electrical generation in the entire U.S. Obviously, formation of haze (smog) here will “significantly” reduce this areas potential to lead the nation in generation of clean electrical energy from the sun.

In addition, other toxic carcinogenic compounds emitted from drill pads, include ground level ozone (with damaging health effects for humans, animals, plants and crops), B-tex, PM-10, as well as pollution from evaporation ponds, dust from trucks and roads, toxic leaks from pipelines. Ozone is the single greatest cause of asthma.

Flaring of gas from wells emits great quantities of VOCs and nitrogen oxides. Gas operations south of Silt Colorado have caused illness amongst local residents and die-off of goat herds.

I could continue to point out the egregious inadequacies of the Draft EA in terms of each of the categories of impacts I outlined before, including health concerns, impacts on wildlife, noise, light and dust pollution, damage to roads by heavy vehicles, infrastructure requirements, etc. But I imagine other concerned individuals will address these topics adequately. I can only hope that the USFWS and will be compelled to follow NEPA more carefully in the future.

The San Luis Valley is unique and irreplaceable national treasure. We are seeing here a battle between the mineral estate and the surface estate. Not represented at the table is the value of the most valuable estate of all, the water, which is owned by the people of Colorado. Although it is impossible to place a value on the wealth of the surface estate and the water, they are certainly worth infinitely more than the minerals under the BNWR.

Sincerely,

Dr. Eric Karlstrom, Professor of Geography, Coordinator, Water Watch Alliance
P.O. Box 54, Crestone, CO 81131; Email: [email protected]
CC:

Governor Bill Ritter: 136 State Capitol, Denver, CO 80203-1729. Phone: 800-283-7215 or 303-866-2471, fax- 303-866-2003, Email: www.Colorado.gov

Senator Ken Salazar: 702 Hart Senate Office Building, Washington, D.C. 20519
Washington, D.C.- phone- 202-224-5852, fax 202-228-5036. Alamosa office: 609 Main St. #110, Alamosa, CO 81101; email: [email protected], phone: 719-587-0096, fax: 719-587-5137, Denver office: toll free phone 866-455-9866, phone 303-455-7600, fax- 303- 455-8851, Email: salazar.senate.gov/contact/email.cfm

Senator Wayne Allard: 525 Dirksen Senate Office Building, Washington, D.C., 20519
Washington, D.C.: phone- 202-224-5941, fax- 202-224-6471. Denver office: phone- 303-220-7414, fax- 303-220-8126. Email: allard.senate.gov/

U.S. Representative John Salazar: 1531 Longworth House Office Building, Washington, D.C. 20515 Washington, D.C.- 202-225-4761, fax- 202-226-9669. Alamosa office: 609 Main Street, Alamosa, CO 81101; Email: [email protected]. phone- 719-587-5105, fax- 719-587-5137. Email: house.gov/salazar/contact.shtml

State Senator Gail Schwartz- 200 E. Colfax, Denver, CO 80203, Capitol phone: 303-866-4871
Email: [email protected]

State Representative Tom Massey (R- Dist. 60) 200 E. Colfax, Denver, CO 80203, Capitol phone: 303-866-2747, 303-866-2346, Email: [email protected]
Saguache County Commissioners: P.O. Box 655, Saguache, CO 81149 1) Linda Joseph: phone- 719-256-5003, Email: [email protected] 2). Sam Pace- 719-256-4660 3) Michael J. Spearman-719-754-2486

Colorado Department of Wildlife: Wendy Wallis, Phone: 303-291-7208
Email: [email protected]

David Neslin, COGCC, 1120 Lincoln Street, Suite 801, Denver, CO 80203 (303-894-2400)

David B. Martin, Colorado Department of Public Health and Environment, 4300 Cherry Creek Drive South, Denver, CO 80246-1530, (800-886-7689)

Jay Slack, USFWS, 134 Union Ave., Lakewood, CO 80228

Robbie Roberts, U.S. EPA Region 8, 1595 Wynkoop St., Denver,CO 80202-1129

APPENDIX B: LETTER TO BNWR DURING THE “SCOPING PROCESS:” (Most of substantive concerns in this letter are not addressed in the Draft EA.)

LETTER FROM DR. ERIC KARLSTROM

Mike Blenden 9/5/07
U.S. Fish & Wildlife Service
Baca National Wildlife Refuge
Alamosa/Monte Vista National Wildlife Refuge Complex
9383 El Rancho Lane,
Alamosa, CO 81101
Email: [email protected]

Comments and Concerns Re: proposed exploratory gas-well drilling by Canadian firm, Lexam Explorations, Inc. on Baca National Wildlife Refuge

At a recent meeting with our Crestone/Baca community (8/17/07), the USFWS initiated an EA/scoping phase of the NEPA process, requesting that local citizens write-in our concerns re: the proposed drilling of two 14,000’ gas test wells by a Canadian corporation, Lexam Explorations, Inc., on the BNWR. We of Water Watch Alliance (WWA, formerly San Luis Valley Citizen’s Alliance) and I as a citizen of the Baca have many concerns regarding the adverse impacts of Lexam’s proposed drilling on sensitive wetlands of the Wildlife Refuge within 1.5 miles of the Baca community. It is our (WWA) opinion that there are numerous reasons that gas and oil exploratory drilling on the Baca Refuge constitutes an “incompatible use” with that of protecting and preserving fish and wildlife habitats as well as the health and viability of human communities and agricultural operations in the San Luis Valley (SLV). In addition, “downstream” communities in New Mexico, Texas, and Mexico, located in the lower portions of the Rio Grande drainage basin, may also be adversely affected by contamination of surface water from the drilling project. The rights of these downstream users are protected by the Rio Grande Compact. We conclude that: 1) many of the inevitable damages caused by gas exploration drilling in this sensitive area cannot be mitigated and therefore should not be allowed, and 2) due to directives from Washington, D.C., the USFWS is out of compliance with many of the federal regulations it is bound by law to follow and enforce.

It is mandated by law that the BFWR conduct a full-blown NEPA process. Even so, the BNWR announced last fall that it was not required to conduct a NEPA process. Today, it is conducting this process, but only in response to a lawsuit filed by our SLVEC/WWA lawyers. The BNWR is now conducting an Environmental Assessment, which suffices as the short version to fulfill legal requirements when the proposed activity is found to cause no significant impacts. However, given the well-documented, adverse impacts of gas drilling elsewhere in Colorado and the West (OGAP, 2005) and given the extremely sensitive nature of wetland ecosystems and aquifers on and under the Baca Wildlife Refuge, we of WWA believe that the USFWS is legally and morally obligated to conduct a full-blown EIS (Environmental Impact Statement) as well as complete their own Management Plan before allowing any drilling to occur on the Refuge. By conducting a full-scale Management Plan, the BNWR will be able to establish base-line data on air quality, water quality, and the ecosystem itself, including delineation of sensitive species requirements, etc. We would hope these data would be shared with local and state health officials, the POA, Saguache County officials, etc. before any exploratory drilling is allowed.

Our group of concerned citizens chose to call ourselves the Water Watch Alliance because it became clear to us that the gigantic reservoir of water stored in aquifers beneath the San Luis Valley is a priceless resource both now and in the future. It is our goal to protect this resource against potential long-term contamination by large-scale gas/oil operations. We believe that an honest and adequate EIS process will indicate that drilling should not occur on the BNWR. We should be seeking federal legislation to insure that the SLV remains protected in perpetuity as a “No-Go Zone,” as the Valle Vidal and Otero Mesa of New Mexico have now been designated. Whereas the NEPA process permits federal agencies to use Environmental Assessment’s alone when there are no “unique and exceptional circumstances” and “no significant impacts,” we feel that drilling two 14,000’ gas wells through sensitive wetlands and through a series of priceless aquifers on the newly-created BNWR would certainly have significant, adverse impacts and thus, this certainly qualifies as a “unique and exceptional circumstance.”

Lexam Explorations, Inc., which owns 75% of the mineral rights, is a small Canadian company that has never operated an oil or gas well. They will use subcontractors to carry out their drilling; they don’t intend to operate anything. The remaining 25% of the mineral rights are owned by Conoco-Phillips. If Lexam “strikes it rich” and finds a “tcf” (trillion cubic feet) of natural gas, as they hope, their $20 million investment could provide a windfall financial profit for their 2200 shareholders of between $1 billion and $18 billion. Lexam would then immediately sell out to major oil companies such as Conoco-Phillips, which would then proceed to turn the SLV into a toxic, industrial park. I have visited the gas fields south of Silt, Colorado and talked with local property owners there whose lives have become a prolonged nightmare. People’s health, quality of life, and property values are severely and adversely impacted. In addition, it is now well understood that burning fossil fuels contributes to global climate change. One estimate is that the burning of a “tcf” of natural gas would produce about 150 million tons of carbon dioxide, a greenhouse gas. In Europe, production of this amount of CO2 would be taxed at the rate of nearly $2 billion.

William Blake’s image of “Dark Satanic Mills” dotting the 19th century English countryside might then be an apt description of what our own San Luis Valley could look like as an industrial gas field. Meanwhile, the collective benefit to the nation of a successful gas play here would be to obtain sufficient natural gas to supply the US for perhaps a couple weeks only. And the equivalent amount of energy can now be much less harmfully produced using green energy, including solar, wind, and geothermal energy, which, ironically, are very abundant in the SLV.

Adverse impacts that accompany gas and oil drilling:

1) Pollution and degradation of surface water (wetlands) and subsurface water in the unconfined and confined aquifers. Much of the BNWR consists of seasonal wetlands, which are among the most sensitive and important ecosystems in terms of their importance for supporting a large variety of species. Underneath the BNWR is 14,000’ to 15,000’ of sediments overlying Precambrian bedrock. An impermeable layer of clay, 10 to 80’ thick separates the surface (unconfined) from the subsurface (confined) aquifers. However, there are probably as many as 30 distinct aquifers contained within the confined aquifer (Dr. James McCalpin, pers. comm., 2007). Water pressure increases as you descend in the aquifer, therefore (polluted?) water will tend to rise (and mix) through the aquitards and aquifers. In the unconfined aquifer, water table is quite shallow (about 12’ or less) and hence, any addition of pollutants will likely contaminate surface water essential to a wide variety of human and non-human users, both in the near-term and in the future. This relatively shallow unconfined aquifer provides drinking water to our Baca community and most other SLV communities. It also provides the water needed for fish and wildlife, including over 70 species of rare plants and animals, agriculture in the San Luis Valley, and water usage throughout the Rio Grande basin.

There are currently about 7000 wells in the SLV, of which about 1800 are “deep wells” that penetrate the confined aquifer. There is a significant danger of contaminants from the Lexam drilling operation leaking and irrevocably polluting the San Luis Valley aquifers. If the drillers encounter the Dakota Sandstone, a “reservoir rock” that they hope to find, they will in probably use hydraulic fracturing fluids, which can be highly toxic. This poses a threat to the whole Rio Grande region’s water supply and wildlife for future generations. The state of Colorado, which technically owns most of the water, has recently imposed a moratorium on drilling in the confined aquifer. Why is Lexam Explorations, Inc. exempt from this moratorium? Given the magnitude of adverse impacts of the drilling and the potential future value of water in the aquifer (probably many billions of dollars), exploratory gas drilling is an “incompatible use” with the Wildlife Refuge.

Chemical contamination of groundwater: Dr. Theo Colborn has analyzed the chemical compounds involved in the gas well drilling process by studying Material Safety Data Sheets. Of particular concern is the process of hydraulic fracturing which utilizes a suite of especially dangerous chemicals. Such fracturing operations may require up to a million gallons of fluid per well (Gwen Eifle, OGAP, pers. communication, 2007). Colborn determined that of the 245 chemicals commonly used in drilling, 91% have adverse health effects and there is no information on the other 9%. Of the 91%, 35% are endocrine disrupters for people and wildlife. Some of the most toxic chemicals include BTEX (benzene, tolumene, ethylbenzene and xylene) which are carcinogenic, methane, diesel fuel, hydrogen sulfide, heavy metals, VOCs (volatile organic compounds), formaldehyde and PAHs (Colborn, 1997). On viewing the list of chemicals used, Professor Clay Bridgford, an ex-military man in Crestone, referred to this suite of chemicals as “a laundry list for chemical warfare.” Many of these chemicals have been found in contaminated wells and in grab samples for air quality near gas wells in Colorado and elsewhere in the west (OGAP, 2005).

According to OGAP’s Gwen Lachelt (pers. comm., 2007), due to the current industry-friendly administration, every chemical used is considered propriety by the gas and oil drilling industry and this industry is exempt from following the Clean Water Act and other laws that limit and regulate use of toxic chemicals in the U.S. Drillers also use propolene glycol (an antifreeze) on well pads. When ingested, this chemical is fatal for animals. Hence, pad areas always need to be fenced. However, in practice, they typically are not fenced (OGAP, 2005).

Even closed-loop systems still utilize open, evaporation pits, which often contaminate surface water, poison creatures, and add toxic pollutants to the air.

Inadequacy of concrete well casing: The COGCC issued a permit to Lexam specifying that they only need to use double concrete casing in the well for the upper 3500’ of 14,000’ wells. Clearly, there is great potential for contamination of the confined aquifer if the well hits gas and oil and if the casing leaks in the future. . It is well-known that cement casings lose their integrity over time and can become a source of groundwater contamination for decades and centuries (OGAP, 2005). It is also commonly known that one quart of oil can contaminate up to 250,000 gallons of water. Thus, double concrete casing should extend the entire depth of any well.

Needs of future generations: Future generations of humans and other organisms will depend on the quality and quantity of water in the SLV aquifers. A recent study on global warming concluded that by the year 2050, Colorado residents will have to subsist on 30% less water than present. Contamination of the water supply, then, could have disastrous consequences. Two individuals, Canadian Maurice Strong (AWDI) and local Colorado-resident, Gary Boyce (the Baca Corporation), tried, unsuccessfully, to make billions by exporting water from the SLV to the Denver area. So we can speculate that the value of the water is potentially as great or possibly much greater than that of any oil or gas that may be present. Clearly, more scientific studies are required to determine the potential value of the SLV aquifers as well as to determine how best to protect the quality and quantity of the aquifers.

Water from the Rio Grande River is allocated to three states (Colorado, New Mexico, and Texas) and Mexico and is regulated by the Rio Grande Compact. Potential degradation of water in the SLV aquifers could affect the quality of surface water available to downstream users in these areas in the future. We hope that the Rio Grande Water Conservation District becomes more involved in this issue to help protect water quality and quantity for farmers and downstream users.

Solution: A moratorium on drilling. Because access to fresh potable water in the semi-arid West will probably increase in the future, the Governor of New Mexico has recently imposed a moratorium on gas and oil drilling on the Otero Mesa until such scientific studies are complete. We suggest that our governor and/or our federal representatives do the same in this region.

2) Air pollution: Chemicals used in natural gas development are dangerous to the health of living creatures (animals, plants and humans) who happen to live near the drilling operations. Emissions from drilling pads emit carcinogenic toxic chemicals into surrounding public lands and communities. Ground level ozone causes degenerative health problems for humans, wildlife, plants and agricultural crops. It is the #1 cause of asthma. Because ground-level ozone is produced at every gas well pad, each well needs a special permit to exceed air quality standards required by the state and U.S. government. In addition, after gas comes to the surface, a dehydrator is used to separate the gas from the condensate, which includes a complex of volatile carcinogens, called BTEX, which includes ethyl benzene, xylene, and tolumine. In addition, PM-10 (airborne particulate matter less than 10 microns in diameter) has serious negative impacts on crops and human health. In order to monitor air quality in the BNFWR, it will be necessary to coordinate activities with the following organizations: Colorado Air Quality Control Commission, Colorado Water Quality Control Commission, Colorado Division of Wildlife, Local county weed programs, Bureau of Land Management, and Saguache County. It will also be necessary to conduct preliminary baseline studies on present air quality.

3) Health Concerns: Based on analysis of data in the Chemicals Used in Natural Gas Development Spreadsheets, Dr. Theo Colborn found that of the chemicals used, 49% can cause skin/sensory organ toxicity, 47% can cause respiratory problems, 47% are neurotoxins, 43% are gastro-intestinal/liver toxicants, 38% are kidney toxicants, 33% are carcinogenic, 29% are cardio/vascular/blood toxicants, 27% are immune system toxicants, 25% are developmental toxicants, and 13% are endocrine disruptors. In addition, of the chemicals on the list, 20% are biocide products that kill all life. Of the chemicals that are soluble in water (13%), 72% are neurotoxicants, 61% are gastro-intestinal/liver toxicants, 61% are reproductive toxicants, 61% are skin and sensory organ toxicants, 56% are respiratory toxicants, 50% are kidney toxicants, 39% are cardiovascular toxicants, 28% are endocrine disruptors, and 22% are wildlife toxicants. Furthermore, And furthermore, of the chemicals used in natural gas drilling that vaporize, 66% are neurotoxicants, 60% are gastro-intestinal/liver toxicants, 52% are respiratory toxicants, 45% are kidney toxicants, 43% are reproductive toxicants, 37% are cardiovascular/blood toxicants, 33% are carcinogens, 27% are immuno-toxicants, 14% are endocrine disruptors, and 4% are wildlife toxicants.

4) Impacts upon wildlife: Rare flora and fauna in the San Luis Valley, some found nowhere else in the world, include, the Great Sand Dunes tiger beetle, the giant sand treader cricket, the Rio Grande cutthroat trout, the southwestern willow flycatcher, and the slender spiderflower. Other species found in the area include the bald eagle, sandhill crane, pronghorn antelope, elk, mule deer, bighorn sheep, mountain goats, mountain lion and black bear.

5) Noise, light, and dust pollution: The proposed drilling, located about 1.5 to 2 miles west of the Baca residential community, will produce inevitable noise, light, and dust pollution which will degrade the quality of life for members of the Baca community as well as the habitats of fish and wildlife on the Refuge. In addition, heavy truck traffic associated with various aspects of the operation will significantly increase noise and dust. Compressor stations, if built, produce noise as loud as a jet airliner “24-7” (24 hours a day, 7 days a week. Crestone/Baca includes many spiritual groups and individuals who have moved here because of the pristine beauty of nature and the awesome and profound silence that the area affords. These spiritual groups will be adversely impacted by the drilling operations, in particular.

6) Damage to local roads due to use of heavy vehicles: We can expect that heavy traffic by heavy vehicles will result in damage to local roads and the increase of traffic accidents. Will Lexam pay for the damage their operation causes to existing infrastructure?

7) Infrastructure requirements: There is currently no infrastructure in the SLV that would support gas production. Building such an infrastructure would require construction of gas pipelines, gas compressors, building of innumerable gas well pads, building extra roads, etc. The synergistic effects of these kinds of operations would significantly degrade the pristine quality and quality of life in the San Luis Valley for many residents. Oil spills, truck crashes and highway deaths resulting from those crashes would be highly likely.

8) Boom-town effects: If Lexam strikes gas, we can expect that a suite of highly disruptive “boom-town effects” would accompany the gas boom. Other communities which have been subjected to this process have experienced varying degrees of chaos, social upheaval, negative impacts on schools, emergency services, crime rates, etc. And typically, after gas companies create problems, the local tax payers have pay the cost of the damages, road repair, etc. This pattern repeats in many ways, with local communities paying for extra schools, roads, etc. that industry needs in order to function. Meanwhile, what percentageof the profits are shared with local counties? Often, little to none.

9) Damage to local cultural, spiritual and native American values: The NEPA process requires that the USFWS try to understand the cultural values of the Crestone/Baca community. Our community is comprised of numerous communities and individuals committed to the preservation of pristine nature, developing more sustainable living models, and pursuing spiritual retreat in one of the world’s truly magnificent natural settings. Every fall for many years, for example, our town has sponsored an energy fair, which displays alternative and renewable means of creating energy. The San Luis Valley itself has long been acknowledged as one of the great spiritual centers of the world. It is commonly claimed around here that since pre-historic times when several Native American nations would gather in this “Bloodless Valley” bloodshed between peoples’ was not permitted. Mount Blanca, at the southern end of the valley, is one of the four sacred mountains of creation for Hopi and Navajo Indians. In practice, both the SLV and Mount Blanca are such recognized as cultural/spiritual sites of great importance to various Native American groups. And over the past few decades, the Baca Grande community has become home to many international spiritual centers and spiritual masters of various faiths including Christian, Buddhist, Hindu and others. These diverse cultures, faiths and retreat centers provide the sanctuary and retreat that both residents and visitors seek.

We believe that our cultural identity, our “sense of place,” and the continued health and integrity of our human and natural ecosystems is more important than Lexam’s short-term profit potential on the Toronto stock exchange. In practice, these “wild-cat” speculators are not only trying to mine for resources, they are also mining their own investors. It seems these people are motivated more by short-term personal gain than by a larger vision for or commitment to the future of our society or our environment. The fact that they are from Canada means they have little or no understanding of or regard for the values of our community. To us, national security or “homeland security” means clean air and water, a healthy environment, healthy communities, safe neighborhoods, healthy food, and minimum impact on the physical environment, etc. Certainly, our idea of prosperity is not compatible with a quick “wild-cat” gas play. To us, the potential threat by the Lexam drill play to the water and ecosystems of the SLV is not an acceptable risk. By contrast, we note and are concerned by the cynical, “public be damned” attitude typical of fossil fuel companies and “the oilies”. In a moment of candor, one industry geologist reportedly admitted to the Colorado legislature: “The industry is not happy until there is a hole drilled every 40 acres.”

Perhaps the inevitable question now is: Is the fossil fuel industry today more powerful than the U.S. government? Given that our president and vice president are both fossil fuel industry insiders and have manipulated our government so as to remove the impediments of federal regulations in an effort to maximize industry’s profits, it seems that yes, the oil/gas companies are now more powerful than our government.

Bitter Root National Forest Supervisor Gloria Flora stated: “Why are they going to the best places first? They are going to the best places first because if they can get in there, there is nowhere they can’t get in.” (I paraphrase, her actual comment can be heard on the excellent movie- A Land Out of Time). Could Lexam be acting in coordination with a government/corporate strategy, perhaps outlined in Vice President Cheney’s (still classified) Energy Task Force documents? Could their strategy, in fact, be to drill in the most environmentally sensitive areas as soon as possible so as to derail any possible citizen opposition to their goal of turning the American West into a national energy colony, or in fact, a “National Sacrifice Area?” Could it be a deliberate plan to lower or even destroy property values of American citizens? Or might it be part of a larger UN Agenda 21, whereby lands are to be confiscated from the American people in order to be designated as federal lands, only to be later offered up to corporations through federal sell-offs and mineral-rights give-aways? All these questions should be addressed and answered by the Draft EA if it is to be in compliance with the NEPA process and not merely a whitewash.

There are several federal laws that protect Native American sacred places. These include the National Historic Preservation Act (NHPA) and its implementing regulations at 36 CRF Part 800:

a. Installations must determine whether they have any properties of traditional religious or cultural significance to Native Americans.
b. Installations with such properties are required to follow the requirements of Section 106 of NHPA regarding consultation with Native Americans if the BRAC activity constitutes an undertaking as defined in the ACHP regulation (36 CFR 800.16(y)). Further information on Section 106 is available at ACHP website at www.achp.gov/work106.html.

Since native peoples in antiquity typically camped near water and since there are abundant seasonal wetlands on the BFWR, there are undoubtedly countless artifacts and sites on the Baca Refuge which have not been catalogued or recorded. Again, the BNWR needs to complete a survey of actual resources on the Refuge before allowing any drilling to occur.

In addition, the American Indian Religious Freedom Act (AIRFA) of 1978 states:

It shall be the policy of the United States to protect and preserve for Americans their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian…, including, but not limited to access to sites, use and possession of sacred objects.

Has the BNWR queried all the native groups which might believe that sacred sites are located on the Refuge?

The Preservation of Sacred Sites as revised by President Clinton in 1996 Executive Order 13007 states:

In managing federal lands, each executive branch agency with statutory or administrative responsibility for the management of federal lands shall… avoid adversely affecting the physical integrity of such sacred sites.

Other pertinent laws include:

Native American Graves Protection and Repatriation Act (NAGPRA) and its implementing regulations at 43 CFR 10, the Archaeological Resources Protection Act (ARPA), NEPA Executive Orders 13175, 12898, and DOD Instruction 4715.3.

In addition to many potential sacred sites on the 100,000 acre lease area of the BNWR, there are many spiritual groups located a few miles to the east of the proposed wells in the Crestone/Baca community. These include a Carmelite Catholic monastery, a Hindu Ashram, several Tibetan Buddhist temples and retreat spaces, a Zen Buddhist retreat center, etc.

10) Inadequacy of inspections. Whereas the number of oil and gas wells in Colorado has climbed 30% to 29,000 since 2000, the COGCC inspections have not kept pace. The state has just 8 inspectors, just one for every 3,625 wells. Therefore, we recommend that a qualified engineer be added to the team of inspectors. Deb Phenecie of the Baca Grande Water and Sanitation district is an engineer, she has experience in the gas fields of Wyoming, and she has volunteered to be an inspector.

Peggy Utesch, a member of the Grand Valley Citizen’s Alliance in Garfield County, stated: “We know that every day there are accidents and incidents in the field- just look at the commissioner’s reports.” Based on the track record of the COGCC, we at WWA do not believe they have the capability to adequately monitor drilling activities on the BNWR.

11) Inadequacy of $10,000 bond: Given the potential value of water stored under the San Luis Valley is probably many billions of dollars, a more accurate and adequate bonding amount might be $5 billion.

12) Pressure on government agencies to expedite gas and oil drilling and downplay adverse environmental impacts: In 2001, President Bush signed Executive Order 13212 (Actions to Expedite Energy-Related Projects) which mandated that all federal agencies put new oil, gas, and coal projects on a fast-track, priority footing. Simultaneously, the Bush administration drastically cut funding to federal agencies and regulatory agencies, so they are now typically too short-staffed and under-funded to enforce the existing laws that regulate the oil/gas industry and protect communities and the environment. In particular, this administration has targeted the USF&WS with draconian cutbacks. One recent study showed that 90% of the changes that local people wanted were already in the existing rules and laws, but that these laws were no longer being enforced. Of course, it is well known that Bush and Cheney have deep roots in the oil/gas industry.

BLM research biologist Steve Belinda told Washington Post reporter Blaine Harden: “The BLM is pushing the biologists to be what I call “biostitutes”, rather than allow them to be experts in the wildlife they are supposed to be managing.” Even a GAO report released in February, 2005, concluded that the BLM is so focused on issuing oil and gas drilling permits that it is neglecting its responsibility to protect the land and other resources (http:www.gao.gov/ew.items/d05418.pdf)

13) Legal and constitutional issues: Lexam’s acquisition of mineral rights:.

Canadian billionaire Maurice Strong of AWDI (American Water Development, Inc.) severed the mineral rights from the surface rights on the Baca Grande Ranch when he owned the ranch back in the 1970’s. Lexam Explorations, Inc., is headed by another Canadian billionaire, Rob McEwen, the former CEO (and still largest shareholder) of Canada’s Goldcorp Inc. and current CEO of U.S. Gold. Lexam purchased 50% of the hard mineral rights from Baca Minerals (Strong) in 1987 and the other 50% of the oil and gas rights on the Baca Grande ranch from Newhall Land and Farming Company for $1 million. It acquired an additional 25% of the oil and gas rights from the Baca Corporation in 1996 from Gary Boyce for $1 million. Boyce, in turn, purchased these rights from Maurice Strong. The remaining 25% of the oil and gas rights is owned by Conoco-Phillips.

Lexam acquired surface access and use by fee simple ownership and a Surface Use Agreement with AWDI (i.e., Maurice Strong) in 1992 for $1 million. This agreement is a 20-year paid up lease that is binding on surface owners who may be successors in the ownership to AWDI. This agreement can be extended if there is production on the property. Surface rights were held temporarily by the Nature Conservancy for about three years, during which time the U.S. government passed the requisite legislation and raised the needed cash to purchase the 100,000 acre Baca Grande Ranch in order to establish the new Great Sand Dunes National Park and Baca National Fish and Wildlife Refuge.

Attempts by a Colorado Springs lawyer to obtain some of the property transfer documents via Freedom of Information Act apparently failed. Thus, there is reason to suspect that government and business have acted secretly and in collusion in this matter. We would like a full disclosure of pertinent legal documents concerning the transfer of mineral rights to Lexam.

Meanwhile, the Lexam proposed drilling comes at a time when the U.S. Congress has not yet defined the mission and purpose of the BNWR. And BNWR has not completed its own Management Plan. And whereas the BNWR denies American citizens’ access to the Refuge because there has been no Management Plan, Lexam has full access. What is wrong with this picture? Additionally, apparently responding to orders from individuals higher up in government, the BFWR tried to issue a permit to Lexam last summer (2006) and then retracted the permit within days after being notified it had no authority to issue such a permit. Nevertheless, the new BFWR stated to our Crestone/Baca community last fall that they did not feel they needed to perform a NEPA process and the drilling could go ahead without the completion of this process. It was only after being sued by SLVEC/WWA alliance attorneys that the BFWR decided they would initiate a NEPA process.

On 8/7/07, the BFWR notified the Crestone/Baca community by email that the EA/scoping process would begin with a public meeting on 8/17/07, effectively giving us only 9 days to organize and prepare our public input. Our community was not notified of the meeting through normal publicity channels, such as the Crestone Eagle, which comes out on the first of each month. Our subsequent requests for a postponement of this meeting and then, an extension of the comment period from 30 days to 45 days have fallen on deaf ears. It is hard to avoid the conclusion that the BNFWR is placing the Lexam drilling project on “fast-track,” as per directives from above. Thus, it is quite likely the NEPA process in this case will be a whitewash and a sham. Nonetheless, of course, we hope that it will be a genuine, thorough, and honest appraisal of the many significant impacts attendant upon drilling projects of this scope.

Re: the NEPA Process, the Energy Mining Law Center notes that the surface owner has the legal authority to gather input regarding proposed projects and to impose “reasonable alternatives.” Federal agencies have the legal mandate to participate honestly in the NEPA process. And they have the right to determine what comprises “reasonable use” for access and development of minerals. The 1969 National Environmental Policy Act (NEPA) was designed to prevent “Agency Capture,” a process in which industry and federal agencies act cooperatively to advance the interests of industry. The law was written to insure that ultimately, decisions require significant community input and input from experts in various fields; the decisions are not to be made by those with the greatest vested interests and the biggest bank accounts, i.e., the “oilies.”

I am not a lawyer, but it seems there may be several important constitutional issues here: A) The Nature Conservancy acted as “middle man” in the sale of the land from the Baca Corporation to the USFWS. Was their role legally appropriate? B) Did Maurice Strong, a Canadian citizen, have the legal right to sever surface from subsurface rights and sell these to different entities? C) Should subsurface mineral rights really be considered superior to surface rights? D) Re: the sale of surface and subsurface property rights, the entities involved include Maurice Strong (AWDI), Gary Boyce (the Baca Corporation), Rob McEwan (Lexam), Baca Minerals, the Newhall Land and Farming Company, Petro-Hunt, Chevron, SONAT, Conoco-Phillips, the Nature Conservancy, and the USF&WS. Were the sales of these properties legal? Or would FOIA information reveal insider deals? Finally, E) should the “property right” of a Canadian corporation supercede those of American citizens and the U.S. government itself?

14) Control of Noxious Weeds: Noxious weed invasion is a significant threat to agriculture and wildlife habitat, rivaling urban sprawl in acres of habitat lost in many rural counties. Studies document that the number one way weeds are spread is from seeds transported on truck tires. In conjunction with local governments, the gas industry must be accountable to mitigate any spread of noxious weeds that may result from drilling operations.

We are also concerned about potential impacts to the area’s organic agricultural activities. Management of noxious weeds will apply to all areas disturbed by drilling operations, including but not limited to existing roadways and borrow pits, new roads, pipeline cuts, and well pads.

15) Conflicts of interest?

It has come to our attention that the Draft EA will be written by a consulting team that is being paid by Lexam. There is an old phrase: “He who pays the piper calls the tune.” I sincerely hope that this team will follow the NEPA process in good faith, listen to the opinions and views expressed by we American citizens, who really own the BFWR, and conduct not only an EIS but a Management Plan before considering allowing foreign investors to drill on our precious Baca National Wildlife Refuge.

Sincerely,

Dr. Eric Karlstrom
Professor of Geography
Water Watch Alliance
P.O. Box 54
Crestone, CO 81131
Email: [email protected]

References:

The Rifle, Silt, New Castle Community Development Plan, January 1, 2006
A Project of the Grand Valley Citizens’ Alliance.
Management Guidelines for Oil & Gas Development (August 4, 2005), Colorado Mule Deer Assoc.
Oil and Gas at Your Door? A Landowner’s Guide to Oil and Gas Development, 2nd Edition, Oil and Gas Accountability Project (OGAP), 2005

CC: Governor Bill Ritter: 136 State Capitol, Denver, CO 80203-1729. Phone: 800-283-7215 or 303-866-2471, fax- 303-866-2003, Email: www.Colorado.gov

State Senator Gail Schwartz- 200 E. Colfax, Denver, CO 80203, Capitol phone: 303-866-4871
Email: [email protected]

State Representative Tom Massey (R- Dist. 60) 200 E. Colfax, Denver, CO 80203, Capitol phone: 303-866-2747, 303-866-2346, Email: [email protected]
Saguache County Commissioners: 1) Linda Joseph: phone- 719-256-5003, Email: [email protected] 2). Sam Pace- 719-256-4660 3) Michael J. Spearman-719-754-2486

Colorado Department of Wildlife Wendy Wallis, Phone: 303-291-7208
Email: [email protected]