Notice of BLM Director's Response to an Appeal From the Governor of New Mexico Regarding the Resource Management Plan Amendment for Federal Fluid Minerals Leasing and Development in Sierra and Otero Counties, 3550-3557 [05-1315]

Download as PDF 3550 Federal Register / Vol. 70, No. 15 / Tuesday, January 25, 2005 / Notices Barton Springs salamander, it will remain on the List under its current status. Information provided during this 5-year review could also affect the recommendations of the recovery plan for this species. Public Comments and New Information Solicited The Service solicits written comments on the draft recovery plan described above. All comments received by the date specified above will be considered prior to approval of the recovery plan. To ensure that the 5-year status review is complete and based on the best available scientific and commercial information, we are also soliciting new information from the public, concerned governmental agencies, Tribes, the scientific community, industry, environmental entities, and any other interested parties concerning the status of the Barton Springs salamander. Comments on the draft recovery plan and information and/or materials for the 5-year review should be provided to the U.S. Fish and Wildlife Service, Austin Ecological Services Field Office (see ADDRESSES section). Information submitted should be supported by documentation such as maps, bibliographic references, methods used to gather and analyze the data, and/or copies of any pertinent publications, reports, or letters by knowledgeable sources. Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Respondents may request that we withhold a respondent’s identity, as allowable by law. If you wish us to withhold your name or address, you must state this request prominently at the beginning of your comment. We will not, however, consider anonymous comments. To the extent consistent with applicable law, we will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. Comments and materials received will be available for public inspection, by appointment, during normal business hours (see ADDRESSES section). Authority This document is published under the authority of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.). VerDate jul<14>2003 13:14 Jan 24, 2005 Jkt 205001 Dated: December 3, 2004. H. Dale Hall, Regional Director, Region 2, Fish and Wildlife Service. [FR Doc. 05–1290 Filed 1–24–05; 8:45 am] BILLING CODE 4310–55–P DEPARTMENT OF THE INTERIOR Bureau of Land Management [NM–030–04–1610–DR] Notice of Availability of Record of Decision (ROD) and Resource Management Plan Amendment (RMPA) for Federal Fluid Minerals Leasing and Development in Sierra and Otero Counties Bureau of Land Management, Interior. ACTION: Notice of availability. AGENCY: SUMMARY: In accordance with the National Environmental Policy Act (NEPA), the Federal Land Policy and Management Act (FLPMA), and the Bureau of Land Management (BLM) management policies, the BLM announces the availability of the ROD/ RMPA for Federal fluid minerals leasing and development in Sierra and Otero Counties, New Mexico. The New Mexico State Director has signed the ROD/RMPA, which amends the White Sands RMP. ADDRESSES: Copies of the fluid minerals ROD/RMPA are available upon request from the Field Manager, Las Cruces Field Office, Bureau of Land Management, 1800 Marquess St., Las Cruces, NM 88005 or via the Internet at http://www.nm.blm.gov. FOR FURTHER INFORMATION CONTACT: Tom Phillips, RMPA Team Leader/Land Use Planner, 1800 Marquess St., Las Cruces, NM 88005. Telephone number is (505) 525–4377, email address is Tom_Phillips@nm.blm.gov. The fluid minerals RMPA was developed with broad public participation through a 6year public planning process. This RMPA addresses management of the Federal fluid mineral resources on approximately 2.1 million acres of public lands in the planning area. The fluid minerals RMPA is designed to identify which lands under BLM jurisdiction in Sierra and Otero Counties will be made available for potential fluid mineral leasing, and what measures are needed to manage those lands and protect other resource values. The approved fluid minerals RMPA is relatively unchanged from the proposed SUPPLEMENTARY INFORMATION: PO 00000 Frm 00044 Fmt 4703 Sfmt 4703 plan in the Proposed Resource Management Plan Amendment/Final Environmental Impact Statement (PRMPA/FEIS), dated December 2003. In response to the PRMPA/FEIS, the Governor of New Mexico submitted a Consistency Review that recommended adopting an alternative plan he had developed. This alternative was similar to an alternative that was analyzed by the BLM in the draft and final environmental impact statements; therefore, the BLM determined it did not require an additional public comment period. The Governor’s Consistency Review helped lead to the May 2004 PRMPA/FEIS Supplement that included the proposed closure of 35,790 acres to leasing. This closure was a change from the proposed plan in the PRMPA/FEIS where those acres were to be withheld from leasing for five years and re-evaluated. The BLM New Mexico State Director declined to accept the other recommendations made by the Governor, but replied with a written response addressing issues raised in the Consistency Review. Public comments on the supplement were taken for 30 days, and those comments have been considered and addressed in the ROD/ RMPA. The Governor appealed the State Director’s decision not to fully adopt his alternative plan to the BLM Director. The BLM Director has issued a final response affirming the State Director’s decision. All formal protests to the PRMPA/FEIS have also been resolved. Minor modifications have been made to the proposed plan as set forth in the PRMPA/FEIS and Supplement. The modifications corrected errors noted in the review of the PRMPA/FEIS and provide further clarification regarding some of the decisions. Linda S.C. Rundell, State Director. [FR Doc. 05–1316 Filed 1–24–05; 8:45 am] BILLING CODE 4310–FB–P DEPARTMENT OF THE INTERIOR Bureau of Land Management Notice of BLM Director’s Response to an Appeal From the Governor of New Mexico Regarding the Resource Management Plan Amendment for Federal Fluid Minerals Leasing and Development in Sierra and Otero Counties AGENCY: Bureau of Land Management, Interior. ACTION: E:\FR\FM\25JAN1.SGM Notice of availability. 25JAN1 Federal Register / Vol. 70, No. 15 / Tuesday, January 25, 2005 / Notices SUMMARY: In accordance with 43 CFR 1610.3–2(e), the Bureau of Land Management (BLM) is publishing the reasons for BLM’s rejection of the Governor of New Mexico’s appeal regarding the Resource Management Plan Amendment (RMPA) for Fluid Minerals Leasing and Development in Sierra and Otero Counties, New Mexico. FOR FURTHER INFORMATION CONTACT: Jordan Pope, Acting Group Manager; Planning, Assessment, and Community Support Group, 1620 L Street NW., Washington DC 22036. Telephone number (202) 452–5048. Email address Jordan_Pope@blm.gov. SUPPLEMENTARY INFORMATION: In response to the Proposed RMPA/Final Environmental Impact Statement (FEIS), dated December 2003, the Governor of New Mexico submitted a Consistency Review that recommended adopting an alternative plan he had developed. The Governor’s Consistency Review helped lead to the May 2004 PRMPA/FEIS Supplement that included the proposed closure of 35,790 acres. This closure was a change from the PRMPA/FEIS where those acres were to be withheld from leasing for five years and reevaluated. The BLM New Mexico State Director declined to accept the other recommendations made by the Governor, but replied with a written response addressing issues raised in the Consistency Review. The Governor appealed the State Director’s decision not to fully adopt his alternative plan to the BLM Director. The BLM Director has issued a final response affirming the State Director’s decision. The response to the Governor is printed below in its entirety. Dated: January 14, 2005. Francis R. Cherry, Jr., Acting Director. Honorable Bill Richardson, Governor of New Mexico, State Capitol, Santa Fe, New Mexico 87503 Dear Governor Richardson: This appeal concerns the ongoing land use planning amendment process for Sierra and Otero Counties in New Mexico. Currently, fluid minerals 1 operations are guided by the Resource Management Plan for the White Sands Resource Area (White Sands RMP). The portion of the White Sands RMP addressing fluid minerals has not been updated since the plan was first promulgated in 1986. Under the existing planning direction, the vast majority of land managed by the Bureau of Land Management (BLM) in Sierra and Otero Counties can be nominated and leased for oil and gas exploration and development. The BLM New Mexico State Office, as part of its oil and gas management discretion, has chosen not to lease any public 1 Primarily oil and natural gas. VerDate jul<14>2003 13:14 Jan 24, 2005 Jkt 205001 land since 1998 when it initiated this planning amendment process in response to an increase in leasing nominations. Governor Richardson, you have appealed the decision of BLM State Director Linda Rundell made in accordance with BLM planning regulations at 43 CFR 1610.3–2(e). Background In October 2000, the BLM Las Cruces, New Mexico Field Office released the Draft Resource Management Plan Amendment and Environmental Impact Statement for Federal Fluid Minerals Leasing and Development in Sierra and Otero Counties (Draft RMPA/EIS). The BLM began laying the groundwork for this draft in October, 1998 with the initiation of the National Environmental Policy Act (NEPA) scoping process. After releasing the Draft RMPA/EIS, BLM solicited and accepted public comments for an extensive period of time. BLM received numerous comments, and these comments helped lead to changes that BLM then incorporated in the December, 2003 Proposed Resource Management Plan Amendment and Final Environmental Impact Statement for Federal Fluid Minerals Leasing and Development in Sierra and Otero Counties (Proposed RMPA/EIS). BLM New Mexico State Director Linda Rundell made the Proposed RMPA/EIS available to you and the public. On March 5, 2004, you sent the State Director your Consistency Review of and Recommended Changes to the United States Department of the Interior, Bureau of Land Management’s Proposed Resource Management Plan Amendment and Final Environmental Impact Statement for Federal Fluid Minerals Leasing and Development in Sierra and Otero Counties (Consistency Review and Recommendations or CRR). There you recommended that the BLM adopt a management alternative that was similar to an alternative (Alternative B) that was first considered and analyzed by the BLM in the Draft RMPA/EIS. State Director Rundell subsequently responded to your Consistency Review and Recommendations on May 19, 2004. Although the State Director found that you had not presented any inconsistencies that required BLM to make further modifications, she did make a change to BLM’s proposed action based upon your recommendations. The BLM’s proposed action was changed to close 35,790 acres of desert grasslands and potential Aplomado falcon habitat to fluid minerals leasing. BLM described this change in the Supplement to Proposed Resource Management Plan Amendment and Final Environmental Impact Statement for Federal Fluid Minerals Leasing and Development in Sierra and Otero Counties (Supplement). The New Mexico BLM made the Supplement available to the public and posted it on the BLM Web site. The State Director also announced a formal public comment period associated with the Supplement that extended from May 28, 2004 until June 28, 2004. On June 16, 2004, you sent a letter appealing the State Director’s decision to me in Washington, DC, and I am now responding to that appeal. PO 00000 Frm 00045 Fmt 4703 Sfmt 4703 3551 Relevant Statutes and Regulations In deciding this appeal, I am guided by the BLM’s planning regulations in 43 CFR 1610.3–2 (Consistency requirements). These regulations implement section 202(c)(9) of the Federal Land Policy and Management Act of 1976 (FLPMA) which states in part: In the development and revision of land use plans, the Secretary shall * * * to the extent consistent with the laws governing the administration of the public lands, coordinate the land use inventory, planning, and management activities of or for such lands with the land use planning and management programs of other Federal departments and agencies and of the States and local governments within which the lands are located * * * by among other things, considering the policies of approved State and tribal land resource management programs. In implementing this directive, the Secretary shall, to the extent he finds practical, * * * assure that consideration is given to those State, local and tribal plans that are germane in the development of land use plans for public lands; assist in resolving, to the extent practical, inconsistencies between Federal and non-Federal Government plans, and shall provide for meaningful public involvement of State and local government officials, both elected and appointed, in the development of land use programs.* * * Such officials in each State are authorized to furnish advice to the Secretary with respect to the development and revision of land use plans. Land use plans of the Secretary under this section shall be consistent with State and local plans to the maximum extent he finds consistent with Federal law and the purposes of this Act. The ‘‘Consistency requirements’’ regulations state that RMP amendments shall be consistent with officially approved or adopted state ‘‘resource related plans, and the policies and programs contained therein * * * so long as the guidance and resource management plans are also consistent with the purposes, policies and programs of Federal laws and regulations applicable to public lands.’’ 43 CFR 1610.3–2(a). Also, in the absence of such plans, RMPs shall ‘‘to the maximum extent practical’’ be consistent with officially approved and adopted state ‘‘resource related policies and programs.’’ 43 CFR 1610.3–2(b). After a BLM State Director makes a proposed amendment available to a governor, the regulations provide a special means for noting inconsistencies and making recommendations: The Governor(s) shall have 60 days in which to identify inconsistencies and provide recommendations in writing to the State Director. * * * If the State Director does not accept the recommendations of the Governor(s), the State Director shall notify the Governor(s) and the Governor(s) shall have 30 days in which to submit a written appeal to the Director of the Bureau of Land Management. The Director shall accept the recommendations of the Governor(s) if he/ she determines that they provide for a reasonable balance between the national interest and the State’s interest. The Director shall communicate to the Governor(s) in writing and publish in the Federal Register the reasons for his/her determination to E:\FR\FM\25JAN1.SGM 25JAN1 3552 Federal Register / Vol. 70, No. 15 / Tuesday, January 25, 2005 / Notices accept or reject such Governor’s recommendations. 43 CFR 1610.3–2(e). While State Directors should always keep generally apprised of state, local, and tribal policies, plans, and programs, State Directors ‘‘shall not be accountable for ensuring consistency if they have not been notified, in writing, by State and local governments or Indian tribes of an apparent inconsistency.’’ 43 CFR 1610.3– 2(d). Thus, in reviewing this appeal, I have focused on your Consistency Review and Recommendations that you first submitted to State Director Rundell and the points raised in your appeal letter. I will first consider whether you have raised actual inconsistencies with officially approved state resource related plans, policies, and programs. If an actual inconsistency is raised, I will then consider whether a recommendation addresses that inconsistency and provides for a reasonable balance between the national interest and the State of New Mexico’s interest. Your appeal letter and Consistency Review and Recommendations also address a variety of issues in addition to possible inconsistencies with officially approved state resource related plans, policies, and programs. For example, you have expressed your view regarding BLM’s adherence to multiple use management under the Federal Land Policy and Management Act of 1976 (FLPMA) and shared suggestions regarding the environmental analysis made pursuant to the National Environmental Policy Act (NEPA). See e.g., Appeal, pp. 3, 12. It is certainly appropriate to share comments such as these in the midst of the overall RMP amendment process, but this appeal procedure is generally designed to address situations where the BLM proposed action would substantially impede a specific enforceable state resource related plan, program, or policy that is being applied on similarly situated non-federal lands. Your comments on other issues have been noted and considered, and many, if not all, of these issues have been addressed through the protest process. See 43 CFR 1610.5–2. For purposes of this appeal decision, though, I will focus on (1) the sections in your Consistency Review and Recommendations that allege specific inconsistencies with officially approved resource related State plans, policies, and programs (CRR, § II); and (2) your recommendations to address these potential inconsistencies (CRR, § III). I will address your potential inconsistencies and recommendations in the order you have presented them in your Consistency Review and Recommendations. Potential Inconsistencies With Resource Related State Plans, Policies, and Programs (i.) Study: Ecoregion-Based Conservation in the Chihuahuan Desert (CRR, § II. A.) You have asserted that the Proposed RMPA is inconsistent with a study entitled Ecoregion-Based Conservation in the Chihuahuan Desert. CRR, p. 6. This study was a collaborative effort of the World Wildlife Fund, CONABIO, The Nature Conservancy and other organizations. Although this may be a very useful scientific VerDate jul<14>2003 13:14 Jan 24, 2005 Jkt 205001 study, it is not a State of New Mexico resource related plan, policy, or program. It is, therefore, not a potential source for inconsistencies that are germane to this appeal decision. Your comments regarding this study have been noted, however, and have been considered as part of the decision making process for the proposed amendment. (ii.) Executive Order 2004–005 (CRR, § II. A.) After the Proposed RMPA/EIS was released in December 2003, you signed Executive Order 2004–005 on January 31, 2004. The order directed several state agencies to begin taking specific actions relevant to the Otero Mesa and Nutt grassland areas. Any potential inconsistencies with those agency actions are addressed in subsequent sections of this decision. (iii.) Proposal for a National Conservation Area (CRR, § II. A.) You have expressed a desire to see Congress designate approximately 643,754 acres as a National Conservation Area, and have requested that the BLM manage these areas consistent with your legislative request. While I appreciate your input on this issue, a request for federal congressional action is not a qualifying state plan, policy, or program that is directly relevant to this appeal. Should such a designation occur in the future, BLM will, of course, manage those lands in accordance with the congressional mandate. (iv.) Wildlife Conservation Act (CRR, § II. B.) You assert that the proposed plan is inconsistent with New Mexico Statutes sections 17–2–37 through 17–2–46, known as the Wildlife Conservation Act. That act establishes the New Mexico Department of Game and Fish (NMDGF) and defines its authority. You have not identified a specific inconsistency though, and I can find no inconsistency with the statutes you have cited. Specific NMDGF wildlife plans are discussed separately below. In your appeal letter, you have noted habitat fragmentation as a general concern. Certainly, this is a concern for the New Mexico BLM as well and the topic has been addressed in the environmental impact statement. See e.g., Proposed RMPA/EIS, pp. 4–32—4–34. BLM must continually balance the desire to minimize habitat fragmentation with other valuable uses that may contribute to fragmentation. This task is sometimes difficult. I have noted your concerns, but here you have not outlined a specific inconsistency with a state plan, program, or policy that is appropriate for this appeal review. (v.) New Mexico Game Management Plans/ Agreements (CCR, § II. C.) You have asserted that the ‘‘PRMPA/FEIS’’ change to standard lease terms and conditions in Alternative A (modified) is inconsistent with several of NMDGF’s specific endeavors and plans.’’ CRR, p. 13. You have mentioned antelope and aplomado falcon, but have not cited the existence of any state plan for these animals.2 State plans 2 It should be noted again that the State Director implemented your recommendation to close several PO 00000 Frm 00046 Fmt 4703 Sfmt 4703 are in place with respect to desert bighorn sheep and black-tailed prairie dogs. My staff and I have examined these plans and discuss them below. Bighorn Sheep Plan In August 2003, the NMDGF developed the Plan for the Recovery of Desert Bighorn Sheep in New Mexico: 2003–2013 (Bighorn Sheep Plan). The Bighorn Sheep Plan lists the Guadalupe and Sacramento Mountains in Otero County and the Caballo Mountains in Sierra County as unoccupied historic bighorn sheep habitat and as potential transplant areas.3 Bighorn Sheep Plan, p. 20 & Table 5. While bighorn sheep do not currently inhabit any BLM lands in the planning area, New Mexico BLM noted the possibility of bighorn sheep reintroduction in the Proposed RMPA/EIS. See e.g. Proposed RMPA/EIS pp. 3–23, 4–37, 4–39. The New Mexico BLM also recognized the Cornudas Mountains and Brokeoff Mountains as potential future bighorn habitat, but those areas are not listed as potential transplant areas in the Bighorn Sheep Plan. See Draft RMPA/EIS, p. 2–23, Table 2–7. You have stated your view that areas suitable for desert bighorn reintroduction ‘‘need to remain closed to oil and gas development.’’4 CRR, p. 14. The Bighorn Sheep Plan goal is to increase bighorn sheep populations to the point where the species can be removed from the state endangered species list. Bighorn Sheep Plan, p. 50. The plan includes a number of strategies for addressing individual issues related to the overall goal. However, the plan does not include a schedule of actions related to these strategies. The plan is described as ‘‘a broad scale document and as such is not specific in nature.’’ Bighorn Sheep Plan, p. iii. Thus, there is no timeframe for reintroducing bighorn sheep into specific areas, and often important barriers must be overcome before any transplant projects could be undertaken. In the Guadalupe and Sacramento Mountains, the plan notes that currently ‘‘aoudads, domestic sheep, and feral goats preclude transplants.’’ Id., at Table 5. Regarding the Caballo Mountains, past local public opposition is noted as a barrier to reintroduction. Id., at p. 20 & Table 5. Oil and gas activities are not discussed at length in the Bighorn Sheep Plan (with only a single paragraph devoted to the topic). Bighorn Sheep Plan, p. 37. The existence of this land use plan amendment process is noted in this section, but no recommendations are offered. Id. Interestingly, the plan says that in other potential habitat areas, federal lands have been withdrawn from leasing while state lands in the area have been leased. Id. No special provisions to accommodate bighorn habitat on state lands with oil and gas thousand acres of potential aplomado falcon habitat to leasing. 3 The Sacramento Mountains do not have historic accounts of bighorn sheep prior to the 1930s. Bighorn Sheep Plan, p. 20. 4 Currently, under the 1986 White Sands RMP that BLM is now attempting to amend, the majority of these areas are actually open for potential leasing. Little, if any, leasing has actually occurred though. E:\FR\FM\25JAN1.SGM 25JAN1 Federal Register / Vol. 70, No. 15 / Tuesday, January 25, 2005 / Notices potential have been described in the Bighorn Sheep Plan or in the Consistency Review and Recommendations. The Bighorn Sheep Plan’s objective is the following: To have a minimum of 500 free-ranging desert bighorn sheep in at least 3 geographically distinct self-sustaining populations, each of which contains at least 100 bighorn, and to delist the subspecies under the New Mexico Wildlife Conservation Act at that time. Bighorn Sheep Plan, p. 50. In spring 2003, there were an estimated 304 desert bighorn in New Mexico at six locations. Id., p. 6. The state plan identifies 12 potential transplant areas. Id., Table 5. Several of these areas have fewer issues that must be overcome before a transplant could occur than the potential transplant areas in the Caballo, Guadalupe, and Sacramento Mountains. Id. Thus, it does not appear that these areas are essential for achieving the Bighorn Sheep Plan goal. Additonally, it should be noted that merely making areas available for leasing in an RMP does not dictate that leases must be issued and development must occur. These areas have been open to leasing for decades without activities occurring. Further, under the standard lease terms and conditions, BLM retains the ability to prevent the location of surface disturbing activities in environmentally sensitive areas. The extreme slopes associated with bighorn sheep terrain, as a practical matter, may often prevent a conflict with oil and gas activities. See Bighorn Sheep Plan, p. 1 (‘‘Habitat Requirements’’). Several thousand acres of bighorn habitat in the Guadalupe, Sacramento, Cornudas, and Brokeoff Mountains are already slated for increased protection because they are included in ACECs, areas nominated for ACEC status, or Wilderness Study Areas and would be closed to leasing under the Proposed RMPA. In short, you have not pointed to an actual inconsistency between the BLM proposed action and the Bighorn Sheep Plan, and our review does not show any inconsistency. Both the Bighorn Sheep Plan and the BLM’s EIS suggest that, of the potential transplant locations in BLM’s planning area, the Caballo Mountains possess the best bighorn habitat. See Bighorn Sheep Plan, p. 20; Proposed RMPA/EIS, p. 4–39. However, the Bighorn Sheep Plan understates the problems associated with reoccupying this habitat. For example, in the Caballo Mountains area there are well over a hundred active mining claims and several hundred miles of roads crisscrossing the area. Many of these roads are regularly used by members of the local community. In 1992, BLM worked closely with the NMDGF to try to bring Bighorn Sheep to the area, but local opposition eventually prevented a transplant. New Mexico BLM sees no evidence that this situation has changed. Nevertheless, the New Mexico BLM State Director has agreed to defer any leasing in the Caballo Mountains for five years as the NMDGF continues to evaluate the area for possible reintroduction efforts. The State Director will then evaluate the progress of NMDGF, and, if BLM finds it unlikely that reintroduction would occur within the life of VerDate jul<14>2003 13:14 Jan 24, 2005 Jkt 205001 the Bighorn Sheep Plan, the area will be available for potential leasing at that time. Again, making the area available for potential leasing would not mean that leasing would necessarily occur, and historically little interest been expressed in obtaining fluid mineral leases in the Caballo Mountains. Black-Tailed Prairie Dog Plan The NMDGF completed the Conservation Management Strategic Plan for Black-Tailed Prairie Dogs in New Mexico (Prairie Dog Plan) in November, 2001. This plan is a ‘‘working plan’’ designed to guide activities ‘‘toward developing a final conservation and management strategy for black-tailed prairie dogs in New Mexico.’’ Prairie Dog Plan, p. 1. The New Mexico BLM participated in the Working Group that helped to craft the plan, along with several other federal agencies, state agencies and non-government organizations. Prairie Dog Plan, p. 23. The BLM also ‘‘supplied substantial assistance’’ with the baseline survey associated with the Prairie Dog Plan. Prairie Dog Plan, p. 38. The stated goal in the Prairie Dog Plan is to ‘‘determine and achieve an appropriate balance of conservation and management’’ of prairie dogs to preclude the listing of the species on either the national or state endangered species lists. Prairie Dog Plan, p. 10. The plan outlines a number of broad objectives and lists potential strategies. One objective is to achieve 97,000 acres of occupied habitat statewide within 10 years based upon a 6.5% annual increase. Prairie Dog Plan, p. 16. You have noted this objective as well as the objective to identify and encourage maintenance of important existing habitats. CRR, p. 14; see Prairie Dog Plan, p. 12. You have noted the unique characteristics of the small prairie dog colonies in Sierra and Otero Counties and have described them as ‘‘extremely vulnerable.’’ CRR, p. 14. You conclude that the ‘‘habitat loss and fragmentation that will very likely occur under Alternative A (modified) of the PRMPA/FEIS will be counterproductive to this plan’s population and distribution goal.’’ CRR, p. 14. As you may be aware, the State of New Mexico currently manages the black-tailed prairie dog as a ‘‘rodent pest’’ under the supervision of the Department of Agriculture, see Prairie Dog Plan, p. 24, and authorizes State agents to control prairie dog populations through lethal means on State and private lands. See generally, N.M. Stat. Ann. § 77–15 (Michie 2004) (‘‘Predatory Wild Animals and Rodent Pests’’). The prairie dog is not managed as wildlife by the NMDGF. I recognize, though, that the Prairie Dog Plan represents an important step on the part of the State towards increasing the population of prairie dogs. I find that the Proposed RMPA is already consistent with the goals and strategies of the Prairie Dog Plan. The Proposed RMPA protects the prairie dog as a ‘‘special status species.’’ See Proposed RMPA/EIS, pp. E–2, E–3. While the Fish and Wildlife Service recently decided that the black-tailed prairie dog did not warrant Endangered Species Act listing—which removes it as a formal special status species’New Mexico BLM will PO 00000 Frm 00047 Fmt 4703 Sfmt 4703 3553 continue to manage the black-tailed prairie dog as a de facto special status species in Sierra and Otero Counties under the Proposed RMPA. See 69 FR 51217 (August 18, 2004). Because of their special status species designation, BLM will specifically analyze and mitigate impacts to occupied prairie dog colonies in the planning area during site specific NEPA analysis. This action should further assist NMDGF in reaching the goals of the Prairie Dog Plan. (vi.) Noxious Weed Management Act (CRR, § II. D.) The New Mexico Noxious Weed Management Act authorizes the creation of weed control districts. You have not described any inconsistency with the act, its implementing regulations, or specific weed management plans in your Consistency Review and Recommendations. The New Mexico BLM has noted the problem of noxious weeds throughout the planning process and has committed itself to implementing site-specific preventative measures. See Proposed RMPA/EIS, Appendix B, p. B–9. In addition, the New Mexico BLM has been an active partner with state agencies and local officials in the battle against noxious weeds. In Otero County alone, BLM has annually provided over $10,000 worth of assistance since 1996 to support weed control efforts. Your comments on the efficacy of BLM measures has been noted, but you have not identified an actual inconsistency with a state plan, policy or program that can be addressed through this appeal procedure. (vii.) State Water Plan (CRR, § II. E.) The New Mexico State Water Plan was released on December 23, 2003. Your Consistency Review and Recommendations provides a general summary of the New Mexico State Water Plan’s goals; however, the description of potential inconsistencies focuses mainly on statements from the BLM’s Proposed RMPA/EIS without detailing how these statements are inconsistent with specific provisions in the State Water Plan. As you note in your appeal letter, these issues have been raised in separate protests, and they are more properly addressed in that context. Here, my focus is on any inconsistencies between the proposed plan and state plans, policies, or programs rather than on alleged inadequacies of the BLM’s NEPA analysis. The State Water Plan is only quoted once in your discussion. CRR, p. 20. There you state that an increase in the areas covered by standard lease terms and conditions is contrary to the following State Water Plan policy statement: ‘‘The State shall support and conduct watershed restoration projects with a high potential to increase the water supply or improve the quality of water.’’ You further explain that the Tularosa-Salt Basin Regional Water Plan lists watershed restoration as a potential source of up to 15,000 acre-feet of water. Then you conclude, ‘‘Therefore, standard lease terms and conditions are not adequate to properly safeguard such opportunities to ensure that future supplies of fresh water are adequately protected.’’ E:\FR\FM\25JAN1.SGM 25JAN1 3554 Federal Register / Vol. 70, No. 15 / Tuesday, January 25, 2005 / Notices I do not find an inconsistency between the Proposed RMPA and State support for watershed restoration. All riparian areas, wetlands, and playas in the planning area are subject to a quarter-mile ‘‘No Surface Occupancy’’ stipulation. Proposed RMPA/ EIS, p. D–6. Also, standard lease terms and conditions do have resource protection and reclamation provisions.5 Any wells will be subject to a casing and cementing program designed to protect groundwater resources and will be properly plugged when operations cease. See Proposed RMPA/EIS, pp. 4–15 to 4–17. As discussed below, the New Mexico BLM will continue to require that operators secure necessary State permits. Further, BLM agrees with you that it is ‘‘extremely important to implement best management practices in oil and gas operations’ to protect water resources. CRR, p. 21; Proposed RMPA/EIS, pp. B–4 to B–9. (iix.) Water Quality Control Commission Regulations (CRR, § II. (F)) Regarding the Water Quality Control Commission, you have cited section 74–6–12 of the state code, prohibiting water quality impairments that exceed standards. BLM agrees that water quality standards should not be exceeded. See e.g., Proposed RMPA/ EIS, p. 4–16. The BLM proposed plan requires casing measures to prevent fluid or gas migrations that could degrade groundwater. See Proposed RMPA/EIS, p. 4– 15. You have not described where water quality standards have been exceeded, or even where you believe standards might likely be exceeded because of the BLM proposed plan. I know the New Mexico BLM recognizes the importance of water resources, and I will further instruct local BLM officials to diligently monitor any operations that may occur in the planning area. (ix.) Executive Order for Proposed Rules on Pits and Injections Wells (CRR, § II. (G)) Your January 31, 2004 Executive Order 2004–005 directed that the Oil Conservation Division (OCD) ‘‘shall adopt a moratorium prohibiting the use of pits at Otero Mesa’’ and ‘‘shall immediately propose rules to prohibit pits associated with any oil and gas drilling at Otero Mesa.’’ The executive order also directed OCD to ‘‘prepare and propose regulations to implement produced water reinjection standards and controls.’’ As you can imagine, it was difficult for the State Director to assess consistency with rules that were not yet even proposed. Yet, even though the executive order was issued after the Proposed RMPA/EIS was published, State Director Rundell addressed the issue in her reply to your Consistency Review and 5 BLM has broad discretion under the standard lease terms to require actions that minimize environmental impacts. Section 6 of the standard lease terms requires, ‘‘Lessee shall conduct operations in a manner that minimizes adverse impacts to the land, air, and water, to cultural, biological, visual, and other resources and to other land uses or users. Lessee shall take reasonable measures deemed necessary by lessor [BLM] to accomplish the intent of this section.’’ Section 12 states, ‘‘At such time as all or portions of this lease are returned to lessor [BLM], lessee shall * * * reclaim the land as specified by lessor [BLM] * * *’’ VerDate jul<14>2003 13:14 Jan 24, 2005 Jkt 205001 Recommendations. She stated that ‘‘we will work with OCD as new State rules are finalized to make sure we adhere to them.’’ State Director’s CRR Response, p. 5. On August 13, 2004, OCD approved new rules that prohibit the use of pits over much of the planning area and place additional requirements on injection wells and related facilities used to dispose of produced water. These rules went into effect over seven months after the Proposed RMPA/EIS was published. In your appeal letter, you have described the New Mexico BLM position as ‘‘helpful’’ and, thus, there is apparently now no alleged inconsistency to address. Appeal, p. 12. To the extent you continue to be concerned, let me assure you that the New Mexico BLM will continue to require that operators secure necessary State permits. (x.) Cultural Resources Consultation Issues (CRR, § II. (H & J)) You expressed concern with the New Mexico BLM’s consultation process regarding cultural resources. While you have cited a number of federal statutes, regulations, and guidance documents, you have not discussed any alleged inconsistencies with state resource related plans, policies or programs. You have noted the existence of the New Mexico Cultural Properties Act, but you have not alleged any inconsistency with state plans, policies, or programs instituted under that statute. Ensuring that BLM properly consults with tribes and other relevant parties is a high priority for me, and I have noted your concerns. However, this consistency review appeal response is not the proper forum for examining the New Mexico BLM’s compliance with the federal statutes you have listed. Some of these issues were raised in protests, and they are more appropriately addressed in that context. Regarding your policy of government-togovernment relations with tribes, BLM agrees that tribes have certain sovereign powers and should be treated accordingly. Contrary to your statement in the Consistency Review and Recommendations, BLM regulations do not expect a state governor to review and recommend changes on behalf of tribes. BLM will certainly consider consistency related comments received directly from tribes and local governments. See 43 CFR 1610.3–2(c). The regulations merely establish a special procedure for state governors to raise inconsistencies with state resource related plans, programs, and policies. These regulations were promulgated in 1983, and I will consider your comments in determining whether a future modification of the regulations is warranted. (xi.) Scope of NEPA Alternatives (CRR, § II. (I)) Concerns about the application of NEPA and other federal statutes are not potential inconsistencies with state resource related plans, policies, and programs that can be addressed in this context. Your comments have been noted and will be considered in the decision making process. As you know, the New Mexico BLM did issue a Supplement in May, 2004 and accepted PO 00000 Frm 00048 Fmt 4703 Sfmt 4703 public comment regarding the proposed action. I understand that this action has not removed all your NEPA-related objections, but this appeal is not the proper place to address disagreements over the implementation of federal statutes. Again, some of these issues have been raised in protests, and they are more appropriately addressed in that context. (xii.) Alternative Energy Program (CRR, II. (K)) The Consistency Review and Recommendations notes various state laws that encourage alternative energy, but no inconsistencies with the proposed plan amendment are raised. As noted earlier, this amendment process focused on fluid minerals and was not designed to directly address other planning topics. Soon the New Mexico BLM will initiate a much broader planning process for Sierra, Otero, and Dona Ana Counties. Issues not directly addressed in this current planning amendment process’such as grazing, recreational uses, and alternative energy issues—will be addressed, and your input is welcomed during that process. Summary of Potential Inconsistencies I find that you have not raised any actual inconsistencies with state resource related plans, policies, or programs. Much of what was presented in your Consistency Review and Recommendations set forth objections to the BLM’s proposed plan amendment and the associated environmental analysis. While these comments are useful as part of the BLM planning process, this appeal decision only concerns inconsistencies with officially approved resource related state plans, policies, and programs. Comments that addressed federal statutes do not raise inconsistencies that can be addressed through the state consistency review appeal process. Many of the issues you raised were addressed previously through the protest procedure. As a general matter, you have not directed me to specific inconsistencies and, upon further review of the state plans, policies, and programs that you have cited, I have found no inconsistencies. Where you did identify officially approved state plans, such as the Bighorn Sheep Plan, Prairie Dog Plan, and State Water Plan, I have attempted to clarify BLM’s consistency and have directed New Mexico BLM to take actions that further assist the reaching of plan goals. Where the State has instituted recent regulatory changes regarding the use of pits and injection wells, the State Director has already agreed to continue the traditional New Mexico BLM policy of requiring federal lessees to secure necessary permits from State environmental regulators. I also note that several aspects of your recommended plan do not appear to be consistent with the current management of New Mexico state lands that are leased for oil and gas development. For example, the leased state lands in the Otero Mesa desert grassland area are not bound by the extensive ‘‘No Surface Occupancy’’ stipulations that you recommend for similar federal public lands. Additionally, several of your other recommended leasing stipulations—such as E:\FR\FM\25JAN1.SGM 25JAN1 Federal Register / Vol. 70, No. 15 / Tuesday, January 25, 2005 / Notices the recommended stipulation limiting drilling to one surface location per 1,440 acres—are not incorporated into State rules or fluid mineral leases. The measures in the BLM’s proposed plan would generally place more restrictions on oil and gas related activities than are currently present on nearby state lands. The BLM’s consistency review process exists to help prevent incompatible land management systems in areas of mixed management. Since the recommendations contained in your Consistency Review and Recommendations are generally not implemented on state lands, I find that there would not be discordant management between closely situated federal and state lands that might warrant the adoption of your recommendations. Discretionary Review of Governor’s Recommended Alternative The consistency review process is generally designed to highlight specific inconsistencies between proposed BLM actions and officially approved state resource related plans, policies, and programs. Although you have not raised the type of inconsistencies associated with review under section 1610.3–2 of the BLM planning regulations, I recognize that you have documented a variety of concerns and disagreements with the Proposed RMPA/EIS. You have presented an alternative course of action and recommended its full adoption. Therefore, in my discretion as BLM Director, I have decided to re-examine your recommended alternative in light of the federal and State interests involved. Federal and State Interests Under the Federal Land Policy and Management Act (FLPMA), BLM must ‘‘use and observe the principles of multiple use’’ when developing and revising land use plans. 43 U.S.C. 1712 (c)(1). Through the land use planning process BLM makes choices among a host of possible land uses. The multiple use mandate does not require that all uses be available upon every acre of public land. Indeed, the choice of one use in a particular area, by its very nature, may exclude some possible uses while being compatible with still others. Overall, however, the public lands managed by BLM are utilized by the nation in an astonishingly wide variety of ways. Here, the New Mexico BLM has proposed to amend the White Sands RMP. The White Sands RMP addresses a wide range of uses including recreational uses, wildlife habitat areas, and livestock grazing to name but a few. While the Proposed RMPA/EIS considers decision possibilities that relate primarily to oil and gas leasing, it does so with the implicit recognition that any decision may impact the availability of other uses. The integrated planning and NEPA analysis process is designed to insure that the impacts of any proposed action are clearly understood. BLM takes a similar view when it considers any RMP amendment focused on a particular subset of uses (such as the 1997 RMP amendment addressing Areas of Critical Environmental Concern).6 6 The White Sands RMP has been amended four times since it was adopted in 1986. VerDate jul<14>2003 13:14 Jan 24, 2005 Jkt 205001 In short, when making land use decisions BLM must balance a variety of interests. Of particular importance here is the national interest in domestic oil and gas production. In the Mining and Minerals Policy Act of 1970 Congress declared, [I]t is the continuing policy of the Federal Government in the national interest to foster and encourage private enterprise in (1) the development of economically sound and stable domestic mining, minerals,7 metal and mineral reclamation industries, [and] (2) the orderly and economic development of domestic mineral resources, reserves and reclamation of metals and minerals to help assure satisfaction of industrial, security and environmental needs * * * 30 U.S.C. 21a. Later, in the Federal Land Policy and Management Act of 1976 (FLPMA), Congress noted, [I]t is the policy of the United States that * * * the public lands be managed in a manner which recognizes the Nation’s need for domestic sources of minerals, food, timber, and fiber from the public lands including implementation of the Mining and Minerals Policy Act of 1970. * * * 43 U.S.C. 1701(a)(12). Thus, Congress has stated a strong national interest in the production of oil and gas on public lands. BLM, in keeping with the multiple use mandate, is charged with balancing this interest along with other valid interests as it manages the public lands entrusted to its supervision. Similarly, the State of New Mexico shares an interest in the development of oil and gas resources in Sierra and Otero Counties. The State of New Mexico would receive one half of the royalties paid on any oil or gas produced from these public lands. Also, the state is a major landowner within these two counties and has already leased thousands of acres of land for oil and gas development in this same area. Patrick H. Lyons, the State of New Mexico Commissioner of Public Lands, provided New Mexico BLM with written comments during the most recent public comment period. In his comments, the Commissioner stated, The state’s trust holding in the greater Otero Mesa area are second only to the federal acreage position and with these vast holdings comes a keen awareness of the potential to develop a secure, domestic energy resource and produce significant longterm revenue for New Mexico, while at the same time recognizing the need to harmonize development with environmental and cultural resource protection. Supplement comment letter of Commissioner Patrick H. Lyons, June 3, 2004. According to Commissioner Lyons, ‘‘[T]he State Land Office has leased approximately 80,000 acres of land in the area of Otero Mesa for oil and gas development.’’ Id. Commissioner Lyons noted that state mineral and surface lands are ‘‘held in trust to benefit important New Mexico institutions, most notably our public schools and universities.’’ Id. He concluded that the proposed plan 7 ‘‘Minerals’’ is specifically defined to include ‘‘all minerals and mineral fuels including oil, gas, coal, oil shale and uranium.’’ 30 U.S.C. 21a. PO 00000 Frm 00049 Fmt 4703 Sfmt 4703 3555 presented in the Proposed RMPA/EIS and the Supplement ‘‘allows balanced and sustainable development of oil and gas resources at Otero Mesa in southern New Mexico.’’ Id. The Commissioner also stated, ‘‘Any additional delays in the leasing and development process has the potential to deprive trust beneficiaries of much needed funding and is not in the best interest of the trust.’’ Id. Comments were also received from the Otero County Economic Development Council. The Council’s president stated, ‘‘We feel that the addition of an oil and natural gas industry to Otero County is an important diversification of our economy and will shore up the jobs lost in recent years to the decline in the forest industry. We feel that your plan adequately addresses the balance between this new industry and environmental concerns.’’ Supplement comment letter of Laura Bregler, June 1, 2004. I would be remiss if I did not give some consideration to the views of the Commissioner of Public Lands and local leaders when reviewing the balance of national and state interests. I am also aware, however, that many public leaders, organizations, and individuals from within and beyond New Mexico expressed a wide range of views on this topic. Some opposed any development; some supported your alternative; some supported the preferred plan in the Proposed RMPA/EIS; and some felt that the proposed plan placed too many restrictions on development. In your appeal you have noted the state’s interest in the natural character, water resources, wildlife, and cultural resources found in Sierra and Otero Counties. Clearly, there is a national interest in these as well. FLPMA, in addition to recognizing the need for domestic sources of minerals, also states it is the policy of the United States that, The public lands be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archaeological values; that, where appropriate, will preserve and protect certain public lands in their natural condition; that will provide food and habitat for fish and wildlife and domestic animals; and that will provide for outdoor recreation and human occupancy and use. 43 U.S.C. 1701(a)(8). I have taken these interests into account as I have considered your appeal. I recognize that the Chihuahuan Desert is a special place, and BLM plays an important role in the proper management of this region.8 8 Before addressing your recommendations, I would first like to correct two misunderstandings regarding the Reasonably Foreseeable Development Scenario (RFD) and the 5% rule in BLM’s proposed plan. In your appeal, you have stated that the proposed plan’s 5% rule allows ‘‘disturbance of 5,244 acres in the Otero Mesa grasslands.’’ (Appeal, p. 8). This is not accurate. The 5% rule is not a disturbance authorization; rather, it is a limitation applicable to every exploratory unit that will be formed in the Otero Mesa and Nutt desert grassland areas. See Proposed RMPA/EIS, pp. 2–28, D–10. The RFD’s short term disturbance figure of 1,589 acres is not E:\FR\FM\25JAN1.SGM Continued 25JAN1 3556 Federal Register / Vol. 70, No. 15 / Tuesday, January 25, 2005 / Notices Discussion of Recommendations You have recommended the following land designations for the approximately 2.1 million acre planning area: 310,554 acres of discretionary leasing closures; 333,200 acres that would be open to leasing but subject to a ‘‘No Surface Occupancy’’ stipulation; 894,264 acres open to leasing but subject to expanded stipulations; and 709,350 acres open subject to standard leasing terms and conditions. As you noted in your appeal, these recommendations are similar to ‘‘Alternative B,’’ first described in the Draft RMPA/EIS. Because of the similarities to that alternative (which has been before the public since 2000) and to other public comments that advocated similar measures, the State Director decided not to initiate a special public comment period regarding your recommendations. That specific decision is not the subject of this appeal; however, I note BLM received numerous comments addressing your recommendations in the May 28th through June 28th public comment period offered in association with the Supplement. These comments on your recommendations have been noted and are being considered in the ongoing decisionmaking process. One of your proposed stipulations, however, would limit drilling to one surface location per 1,440 acres. I believe the BLM’s current proposed plan balances the need to allow for exploration activities with the need to protect wildlife habitat, water resources and the overall environmental health of the area. After reviewing your appeal, however, I cannot say that your recommended plan provides a reasonable balance of the national and state interests involved because your plan would make exploration activities difficult or impossible over a majority of the planning area. expanded or affected in any way by the 5% rule. For example, even if the total disturbance within the entire planning area were still far below the 1,589 acre level, lessees within an exploratory unit could not disturb more than 5% of the surface area within that unit. Likewise, the lessees within an exploratory unit would not be exempt from the impact of a maximized RFD disturbance level merely because their particular unit only contained 1% disturbance at the time the overall 1,589 acre level was reached. Also, allow me to clarify the relationship between acres leased and acres disturbed. You state, ‘‘My recommended plan, in fact, provides more acreage for oil and gas activity than the BLM anticipates will be disturbed in its forecast of the Reasonable Foreseeable Development (RFD) in the two counties.’’ (Appeal, p. 2) Later, you state, ‘‘My plan certainly allows for development in more than the 1,600 acres needed to sustain the RFD. * * *’’ (Appeal, p. 4). However, simply opening more than 1,600 acres to leasing does not assure that any oil and gas development can occur. Disturbed acreage will normally be much smaller than the actual size of a mineral lease. This is because even a standard vertical well will normally produce from a subsurface area that is much larger than the disturbed drill pad area. Further, the RFD disturbance level is based on the projected success of exploration activities throughout this largely unexplored planning area. Undoubtedly, some areas will emerge as more desirable for drilling than others. The RFD does not assume that allowing operations on any random 1,589 acres within the planning area will lead to the level of activity forecasted. VerDate jul<14>2003 13:14 Jan 24, 2005 Jkt 205001 Your recommended plan would completely close 310,554 acres (15% of the planning area) to any drilling, including directional drilling from offsite well pads. Your recommendation would also place a ‘‘No Surface Occupancy’’ (NSO) stipulation on 333,200 acres (16% of the planning area). Under such a stipulation, exploration and development could only be done on the margins of the NSO areas via directional wells started offsite. Your proposal also includes twelve leasing stipulations. Some of these proposed stipulations closely parallel existing BLM best management practices (BMPs).9 However, your proposed stipulation allowing only one surface location per 1,440 acres would apply to some 894,264 acres (44% of the project area). This translates to one well pad per 21⁄4 square miles.10 As you acknowledge, this is not consistent with the current statewide rules for gas well spacing’one well per 160 acres. CRR, p. 42. This stipulation could limit the exploration flexibility needed to properly understand the subsurface resource. It could also produce a disincentive for exploration because, after an initial vertical well is drilled, directional drilling would be required. It is important to remember that Sierra and Otero Counties are frontier exploration areas. While some 101 wildcat wells have been drilled between 1925 and 2003, none have led to full production. Any alternative, therefore, must be able to adequately accommodate exploration activities if it can truly be said to meet the national and state interests associated with domestic oil and gas production. In your appeal you state, ‘‘Directional drilling allows for production and is the way to reconcile state and national policies in this area.’’ Appeal, p. 20. Directional drilling is an important and useful drilling technique that can limit surface disturbances over subsurface target areas. Directional drilling is generally most effective during the production phase of oil or gas development when the subsurface reservoir characteristics are better understood.11 This type of drilling 9 All BLM offices are instructed to consider applying certain BMPs, such as interim reclamation of well locations, in nearly all circumstances. Seasonal restrictions, requiring multiple wells from a single pad, and the burying of power lines and flow lines in or near roads are examples of BMPs implemented based on case-by-case analysis. See BLM Instruction Memorandum No. 2004–194. It is quite possible that these and other BMPs will be appropriate for well sites in Sierra and Otero Counties. BMPs are typically implemented as mandatory conditions of approval when BLM responds to site-specific Applications for Permits to Drill (APDs) with project-specific NEPA. 10 Given the relatively small number of wells anticipated under the RFD (141 total wells, of which 84 are projected to be producing wells) and the large size of the planning area, it is quite possible that no more than one surface location will be disturbed per 1,440 acres. In certain circumstances, however, it may be environmentally beneficial to cluster pads rather than widely spacing them. 11 I note that the Biodiversity Conservation Alliance article cited in your appeal focuses mainly on production phase efficiencies associated with directional drilling and contains less than two paragraphs addressing the directional drilling of exploratory wells. Erick M. Molvar, Drilling PO 00000 Frm 00050 Fmt 4703 Sfmt 4703 is strongly encouraged by the BLM when appropriate. See e.g., BLM Instruction Memorandum No. 2004–194. Directional wells undoubtedly have some value at the exploration stage, but it is highly unlikely that the large areas placed under your proposed NSO stipulation could be effectively explored using only directional wells. At least one expert familiar with the planning area, Ronald F. Broadhead (Associate Director and Principal Senior Petroleum Geologist of the New Mexico Bureau of Mines & Mineral Resources) has concluded, ‘‘In frontier exploration areas such as Sierra and Otero Counties, exploration and initial development must be accomplished through the drilling of vertical, and not horizontal, wells.’’ Draft RMPA/EIS comment letter of Ronald F. Broadhead, March 27, 2001, Proposed RMPA/EIS, Appendix G, p. G–I–45. As Mr. Broadhead has since clarified, his comments were not meant to suggest that some deviated wells (which, as he says, ‘‘are more similar to a vertical well than a horizontal well’’) could not be used in the exploration phase. Supplement comment letter of Ronald F. Broadhead, June 21, 2004. However, neither Mr. Broadhead nor any other recognized expert has suggested that deviated wells are capable of exploring the large NSO areas present in your recommended plan. For example, in Township 24 South, Range 13 East, your plan would place a three mile by six mile area under an NSO stipulation (sections 7–24). This 18 square mile rectangle is bounded either by non-federal land or by still more land subject to the NSO stipulation. Assuming that ground access for directional drilling was possible from the non-federal NSO boundaries, a well would face a minimum horizontal displacement of 1.5 miles in order to explore targets in the center of sections 13 through 18. Thus, the uncertainty associated with a frontier exploration area and the large contiguous tracts involved combine to make exploration in much of your NSO zone highly unfeasible. It is common knowledge that a directionally drilled well is more costly and complicated than a comparable depth single vertical well.12 While the added costs are often justified by the ability to hit multiple high value subsurface targets and to protect important surface resources, such is not Smarter: Using Directional Drilling to Reduce Oil and Gas Impacts in the Intermountain West, Biodiversity Conservation Alliance, p. 8, 16. 12 You provide an example in your Consistency Review and Recommendations estimating a 26% increase in per well costs between nine separate vertical wells and the more expensive nine directional wells drilled from a single drill pad. Consistency Review and Recommendations, p. 43. The per well cost differences would likely increase if fewer than nine wells were examined. A lesser number may be more realistic in a frontier exploration area. You did not discuss the horizontal displacement involved in your hypothetical situation, but it should be noted that your example was based on a drilling depth of 2,200 feet, while the area’s most successful well in recent years was over 7,000 feet deep. Reaching such depths could be more difficult when extensive horizontal offsets and fractured geology, common in sections of the planning area, are also involved. E:\FR\FM\25JAN1.SGM 25JAN1 Federal Register / Vol. 70, No. 15 / Tuesday, January 25, 2005 / Notices always the case in an exploration context. Higher exploration costs can reduce the likelihood that areas will be economically feasible to explore. Potentially productive areas that remain unexplored can prevent the nation and New Mexico from realizing the benefits of domestic energy production.13 Conclusion As previously discussed, you have not identified inconsistencies with state resource related plans, policies, and programs. Neither are your recommendations for federal public lands completely consistent with the management practices on state lands with oil and gas resources. Nevertheless, I have instructed the New Mexico BLM to take steps to further strengthen its support for the state plans, policies, and programs that you have noted. Among these steps are expanded protection for potential bighorn sheep habitat and occupied black-tailed prairie dog habitat in the planning area. Also, I have reviewed your complete recommended alternative as you requested. In short, your recommendations would place some 1,538,018 acres (75% of the planning area), either off-limits to drilling completely or under stipulations that place significant barriers to effective exploration and development. Such a plan is unbalanced. Your recommended plan does not give reasonable consideration to the federal and state interest in domestic energy exploration and production in Sierra and Otero Counties, and it adds little significant protection for other natural resources. I therefore cannot approve your recommended alternative and must deny your appeal. The BLM proposed plan allows a reasonable opportunity for exploration and development, but the plan does not ignore the important environmental interests of the area. The plan closes the six Areas of Critical Environmental Concern (ACEC) to leasing. It also closes eight areas that have been nominated for ACEC status. As you previously recommended, the BLM proposed plan will not allow any fluid mineral leasing in the 35,790 acres of potential Aplomado falcon habitat located in the Nutt and Otero Mesa grassland areas. The broader grassland areas are subject to protective stipulations, including the 5% maximum disturbance rule. All of this is under the umbrella of the RFDbased analysis that anticipates short term disturbance from oil and gas activities of 1,589 acres throughout this nearly 2.1 million acre planning area. That disturbed area is less than one-tenth of 1% of the entire planning area. The proposed plan also includes strict landscape reclamation standards that will be applied to any areas of disturbance. I believe the BLM proposed plan offers a reasonable balance between energy needs and environmental considerations and improves the management regime found in the currently effective 1986 White Sands RMP. 13 For example, the unleased areas closest to the successful Bennett Ranch well location would be subject to the NSO stipulation under your alternative. Under the Proposed RMPA/EIS plan this area would be subject to stipulations, such as the 5% rule, that would allow for the possibility of limited exploration with both vertical and directional wells. VerDate jul<14>2003 13:14 Jan 24, 2005 Jkt 205001 3557 Under that plan, some 96% of the planning area would be open to leasing without any special stipulations. Again, I thank you for your participation in the land use planning process for Sierra and Otero Counties. Your appeal is hereby denied, and I affirm the decision of the New Mexico State Director. Although I have denied this appeal, it is my hope that the New Mexico BLM and the State of New Mexico will continue to communicate and cooperate on future issues. Sincerely, Kathleen Clarke, Director, Bureau of Land Management. Dated: January 13, 2005. David D. Morlan, Chief Cadastral Surveyor, Nevada. [FR Doc. 05–1260 Filed 1–24–05; 8:45 am] [FR Doc. 05–1315 Filed 1–24–05; 8:45 am] AGENCY: BILLING CODE 4310–84–P DEPARTMENT OF THE INTERIOR Bureau of Land Management [NV–952–05–1420–BJ] Filing of Plats of Survey; Nevada Bureau of Land Management. Notice. AGENCY: ACTION: SUMMARY: The purpose of this notice is to inform the public and interested State and local government officials of the filing of Plats of Survey in Nevada. EFFECTIVE DATES: Filing is effective at 10 a.m. on the dates indicated below. FOR FURTHER INFORMATION CONTACT: David D. Morlan, Chief, Branch of Geographic Sciences, Bureau of Land Management (BLM), Nevada State Office, 1340 Financial Blvd., P.O. Box 12000, Reno, Nevada 89520, 775–861– 6541. SUPPLEMENTARY INFORMATION: 1. The Plat of Survey of the following described lands was officially filed at the Nevada State Office, Reno, Nevada, on December 16, 2004: The plat, in six (6) sheets, representing the dependent resurvey of a portion of the south boundary of T. 14 N., R. 25 E.; a portion of the subdivisional lines and Mineral Survey Nos. 4499, 4531, and 4778, and the subdivision of certain sections, Township 13 North, Range 25 East, Mount Diablo Meridian, Nevada, under Group No. 806, was accepted December 14, 2004. This survey was executed to meet certain administrative needs of the Bureau of Land Management. 2. The above-listed survey is now the basic record for describing the lands for all authorized purposes. This survey has been placed in the open files in the BLM Nevada State Office and is available to the public as a matter of information. Copies of the survey and related field notes may be furnished to the public upon payment of the appropriate fees. PO 00000 Frm 00051 Fmt 4703 Sfmt 4703 BILLING CODE 4310–HC–P DEPARTMENT OF THE INTERIOR Bureau of Reclamation Contra Costa Water District Alternative Intake Project, Contra Costa and San Joaquin Counties, CA Bureau of Reclamation, Interior. ACTION: Notice of Intent to prepare an environmental impact statement (EIS) and notice of scoping meetings. SUMMARY: Pursuant to section 102(2)(c) of the National Environmental Policy Act (NEPA), the Department of the Interior, Bureau of Reclamation (Reclamation) intends to prepare an EIS to evaluate Contra Costa Water District’s (CCWD’s) proposed Alternative Intake Project. The project purpose is to protect and improve water quality for CCWD’s customers. The proposed action includes the construction of a new intake and fish screen in the Central Delta, a pumping plant, and an associated pipeline from the new intake to CCWD’s Old River Pumping Plant on Old River. The proposed action would involve adding a new point of diversion to certain existing water rights held by CCWD and by Reclamation. In addition to the proposed action, other alternatives will be evaluated that may include different intake locations, desalination, and other treatment options. Potential Federal involvement may include the approval of an additional point of diversion pursuant to CCWD’s water service contract with Reclamation, and operational changes. The EIS will be combined with an Environmental Impact Report (EIR) prepared by CCWD pursuant to the California Environmental Quality Act (CEQA). DATES: Three public scoping meetings will be held to solicit comments from interested parties to assist in determining the scope of the environmental analysis, including the alternatives to be addressed, and to identify the significant environmental issues related to the proposed action. The meeting dates are: • Tuesday, February 15, 6–8 p.m. in Concord, California. • Wednesday, February 16, 10 a.m.– 12 p.m. in Sacramento, California. • Thursday, February 17, 6–8 p.m. in Antioch, California. E:\FR\FM\25JAN1.SGM 25JAN1

Agencies

[Federal Register Volume 70, Number 15 (Tuesday, January 25, 2005)]
[Notices]
[Pages 3550-3557]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-1315]


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DEPARTMENT OF THE INTERIOR

Bureau of Land Management


Notice of BLM Director's Response to an Appeal From the Governor 
of New Mexico Regarding the Resource Management Plan Amendment for 
Federal Fluid Minerals Leasing and Development in Sierra and Otero 
Counties

AGENCY: Bureau of Land Management, Interior.

ACTION: Notice of availability.

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[[Page 3551]]

SUMMARY: In accordance with 43 CFR 1610.3-2(e), the Bureau of Land 
Management (BLM) is publishing the reasons for BLM's rejection of the 
Governor of New Mexico's appeal regarding the Resource Management Plan 
Amendment (RMPA) for Fluid Minerals Leasing and Development in Sierra 
and Otero Counties, New Mexico.

FOR FURTHER INFORMATION CONTACT: Jordan Pope, Acting Group Manager; 
Planning, Assessment, and Community Support Group, 1620 L Street NW., 
Washington DC 22036. Telephone number (202) 452-5048. Email address 
Jordan--Pope@blm.gov.

SUPPLEMENTARY INFORMATION: In response to the Proposed RMPA/Final 
Environmental Impact Statement (FEIS), dated December 2003, the 
Governor of New Mexico submitted a Consistency Review that recommended 
adopting an alternative plan he had developed. The Governor's 
Consistency Review helped lead to the May 2004 PRMPA/FEIS Supplement 
that included the proposed closure of 35,790 acres. This closure was a 
change from the PRMPA/FEIS where those acres were to be withheld from 
leasing for five years and re-evaluated. The BLM New Mexico State 
Director declined to accept the other recommendations made by the 
Governor, but replied with a written response addressing issues raised 
in the Consistency Review. The Governor appealed the State Director's 
decision not to fully adopt his alternative plan to the BLM Director. 
The BLM Director has issued a final response affirming the State 
Director's decision. The response to the Governor is printed below in 
its entirety.

    Dated: January 14, 2005.
Francis R. Cherry, Jr.,
Acting Director.

Honorable Bill Richardson,
Governor of New Mexico, State Capitol, Santa Fe, New Mexico 87503

    Dear Governor Richardson: This appeal concerns the ongoing land 
use planning amendment process for Sierra and Otero Counties in New 
Mexico. Currently, fluid minerals \1\ operations are guided by the 
Resource Management Plan for the White Sands Resource Area (White 
Sands RMP). The portion of the White Sands RMP addressing fluid 
minerals has not been updated since the plan was first promulgated 
in 1986. Under the existing planning direction, the vast majority of 
land managed by the Bureau of Land Management (BLM) in Sierra and 
Otero Counties can be nominated and leased for oil and gas 
exploration and development. The BLM New Mexico State Office, as 
part of its oil and gas management discretion, has chosen not to 
lease any public land since 1998 when it initiated this planning 
amendment process in response to an increase in leasing nominations.
---------------------------------------------------------------------------

    \1\ Primarily oil and natural gas.
---------------------------------------------------------------------------

    Governor Richardson, you have appealed the decision of BLM State 
Director Linda Rundell made in accordance with BLM planning 
regulations at 43 CFR 1610.3-2(e).

Background

    In October 2000, the BLM Las Cruces, New Mexico Field Office 
released the Draft Resource Management Plan Amendment and 
Environmental Impact Statement for Federal Fluid Minerals Leasing 
and Development in Sierra and Otero Counties (Draft RMPA/EIS). The 
BLM began laying the groundwork for this draft in October, 1998 with 
the initiation of the National Environmental Policy Act (NEPA) 
scoping process. After releasing the Draft RMPA/EIS, BLM solicited 
and accepted public comments for an extensive period of time. BLM 
received numerous comments, and these comments helped lead to 
changes that BLM then incorporated in the December, 2003 Proposed 
Resource Management Plan Amendment and Final Environmental Impact 
Statement for Federal Fluid Minerals Leasing and Development in 
Sierra and Otero Counties (Proposed RMPA/EIS).
    BLM New Mexico State Director Linda Rundell made the Proposed 
RMPA/EIS available to you and the public. On March 5, 2004, you sent 
the State Director your Consistency Review of and Recommended 
Changes to the United States Department of the Interior, Bureau of 
Land Management's Proposed Resource Management Plan Amendment and 
Final Environmental Impact Statement for Federal Fluid Minerals 
Leasing and Development in Sierra and Otero Counties (Consistency 
Review and Recommendations or CRR). There you recommended that the 
BLM adopt a management alternative that was similar to an 
alternative (Alternative B) that was first considered and analyzed 
by the BLM in the Draft RMPA/EIS.
    State Director Rundell subsequently responded to your 
Consistency Review and Recommendations on May 19, 2004. Although the 
State Director found that you had not presented any inconsistencies 
that required BLM to make further modifications, she did make a 
change to BLM's proposed action based upon your recommendations. The 
BLM's proposed action was changed to close 35,790 acres of desert 
grasslands and potential Aplomado falcon habitat to fluid minerals 
leasing. BLM described this change in the Supplement to Proposed 
Resource Management Plan Amendment and Final Environmental Impact 
Statement for Federal Fluid Minerals Leasing and Development in 
Sierra and Otero Counties (Supplement). The New Mexico BLM made the 
Supplement available to the public and posted it on the BLM Web 
site. The State Director also announced a formal public comment 
period associated with the Supplement that extended from May 28, 
2004 until June 28, 2004. On June 16, 2004, you sent a letter 
appealing the State Director's decision to me in Washington, DC, and 
I am now responding to that appeal.

Relevant Statutes and Regulations

    In deciding this appeal, I am guided by the BLM's planning 
regulations in 43 CFR 1610.3-2 (Consistency requirements). These 
regulations implement section 202(c)(9) of the Federal Land Policy 
and Management Act of 1976 (FLPMA) which states in part:
    In the development and revision of land use plans, the Secretary 
shall * * * to the extent consistent with the laws governing the 
administration of the public lands, coordinate the land use 
inventory, planning, and management activities of or for such lands 
with the land use planning and management programs of other Federal 
departments and agencies and of the States and local governments 
within which the lands are located * * * by among other things, 
considering the policies of approved State and tribal land resource 
management programs. In implementing this directive, the Secretary 
shall, to the extent he finds practical, * * * assure that 
consideration is given to those State, local and tribal plans that 
are germane in the development of land use plans for public lands; 
assist in resolving, to the extent practical, inconsistencies 
between Federal and non-Federal Government plans, and shall provide 
for meaningful public involvement of State and local government 
officials, both elected and appointed, in the development of land 
use programs.* * * Such officials in each State are authorized to 
furnish advice to the Secretary with respect to the development and 
revision of land use plans. Land use plans of the Secretary under 
this section shall be consistent with State and local plans to the 
maximum extent he finds consistent with Federal law and the purposes 
of this Act.
    The ``Consistency requirements'' regulations state that RMP 
amendments shall be consistent with officially approved or adopted 
state ``resource related plans, and the policies and programs 
contained therein * * * so long as the guidance and resource 
management plans are also consistent with the purposes, policies and 
programs of Federal laws and regulations applicable to public 
lands.'' 43 CFR 1610.3-2(a). Also, in the absence of such plans, 
RMPs shall ``to the maximum extent practical'' be consistent with 
officially approved and adopted state ``resource related policies 
and programs.'' 43 CFR 1610.3-2(b). After a BLM State Director makes 
a proposed amendment available to a governor, the regulations 
provide a special means for noting inconsistencies and making 
recommendations:

    The Governor(s) shall have 60 days in which to identify 
inconsistencies and provide recommendations in writing to the State 
Director. * * * If the State Director does not accept the 
recommendations of the Governor(s), the State Director shall notify 
the Governor(s) and the Governor(s) shall have 30 days in which to 
submit a written appeal to the Director of the Bureau of Land 
Management. The Director shall accept the recommendations of the 
Governor(s) if he/she determines that they provide for a reasonable 
balance between the national interest and the State's interest. The 
Director shall communicate to the Governor(s) in writing and publish 
in the Federal Register the reasons for his/her determination to

[[Page 3552]]

accept or reject such Governor's recommendations.

43 CFR 1610.3-2(e). While State Directors should always keep 
generally apprised of state, local, and tribal policies, plans, and 
programs, State Directors ``shall not be accountable for ensuring 
consistency if they have not been notified, in writing, by State and 
local governments or Indian tribes of an apparent inconsistency.'' 
43 CFR 1610.3-2(d).
    Thus, in reviewing this appeal, I have focused on your 
Consistency Review and Recommendations that you first submitted to 
State Director Rundell and the points raised in your appeal letter. 
I will first consider whether you have raised actual inconsistencies 
with officially approved state resource related plans, policies, and 
programs. If an actual inconsistency is raised, I will then consider 
whether a recommendation addresses that inconsistency and provides 
for a reasonable balance between the national interest and the State 
of New Mexico's interest.
    Your appeal letter and Consistency Review and Recommendations 
also address a variety of issues in addition to possible 
inconsistencies with officially approved state resource related 
plans, policies, and programs. For example, you have expressed your 
view regarding BLM's adherence to multiple use management under the 
Federal Land Policy and Management Act of 1976 (FLPMA) and shared 
suggestions regarding the environmental analysis made pursuant to 
the National Environmental Policy Act (NEPA). See e.g., Appeal, pp. 
3, 12. It is certainly appropriate to share comments such as these 
in the midst of the overall RMP amendment process, but this appeal 
procedure is generally designed to address situations where the BLM 
proposed action would substantially impede a specific enforceable 
state resource related plan, program, or policy that is being 
applied on similarly situated non-federal lands. Your comments on 
other issues have been noted and considered, and many, if not all, 
of these issues have been addressed through the protest process. See 
43 CFR 1610.5-2. For purposes of this appeal decision, though, I 
will focus on (1) the sections in your Consistency Review and 
Recommendations that allege specific inconsistencies with officially 
approved resource related State plans, policies, and programs (CRR, 
Sec.  II); and (2) your recommendations to address these potential 
inconsistencies (CRR, Sec.  III). I will address your potential 
inconsistencies and recommendations in the order you have presented 
them in your Consistency Review and Recommendations.

Potential Inconsistencies With Resource Related State Plans, Policies, 
and Programs

(i.) Study: Ecoregion-Based Conservation in the Chihuahuan Desert 
(CRR, Sec.  II. A.)

    You have asserted that the Proposed RMPA is inconsistent with a 
study entitled Ecoregion-Based Conservation in the Chihuahuan 
Desert. CRR, p. 6. This study was a collaborative effort of the 
World Wildlife Fund, CONABIO, The Nature Conservancy and other 
organizations. Although this may be a very useful scientific study, 
it is not a State of New Mexico resource related plan, policy, or 
program. It is, therefore, not a potential source for 
inconsistencies that are germane to this appeal decision. Your 
comments regarding this study have been noted, however, and have 
been considered as part of the decision making process for the 
proposed amendment.

(ii.) Executive Order 2004-005 (CRR, Sec.  II. A.)

    After the Proposed RMPA/EIS was released in December 2003, you 
signed Executive Order 2004-005 on January 31, 2004. The order 
directed several state agencies to begin taking specific actions 
relevant to the Otero Mesa and Nutt grassland areas. Any potential 
inconsistencies with those agency actions are addressed in 
subsequent sections of this decision.

(iii.) Proposal for a National Conservation Area (CRR, Sec.  II. 
A.)

    You have expressed a desire to see Congress designate 
approximately 643,754 acres as a National Conservation Area, and 
have requested that the BLM manage these areas consistent with your 
legislative request. While I appreciate your input on this issue, a 
request for federal congressional action is not a qualifying state 
plan, policy, or program that is directly relevant to this appeal. 
Should such a designation occur in the future, BLM will, of course, 
manage those lands in accordance with the congressional mandate.

(iv.) Wildlife Conservation Act (CRR, Sec.  II. B.)

    You assert that the proposed plan is inconsistent with New 
Mexico Statutes sections 17-2-37 through 17-2-46, known as the 
Wildlife Conservation Act. That act establishes the New Mexico 
Department of Game and Fish (NMDGF) and defines its authority. You 
have not identified a specific inconsistency though, and I can find 
no inconsistency with the statutes you have cited. Specific NMDGF 
wildlife plans are discussed separately below. In your appeal 
letter, you have noted habitat fragmentation as a general concern. 
Certainly, this is a concern for the New Mexico BLM as well and the 
topic has been addressed in the environmental impact statement. See 
e.g., Proposed RMPA/EIS, pp. 4-32--4-34. BLM must continually 
balance the desire to minimize habitat fragmentation with other 
valuable uses that may contribute to fragmentation. This task is 
sometimes difficult. I have noted your concerns, but here you have 
not outlined a specific inconsistency with a state plan, program, or 
policy that is appropriate for this appeal review.

(v.) New Mexico Game Management Plans/Agreements (CCR, Sec.  II. 
C.)

    You have asserted that the ``PRMPA/FEIS'' change to standard 
lease terms and conditions in Alternative A (modified) is 
inconsistent with several of NMDGF's specific endeavors and plans.'' 
CRR, p. 13. You have mentioned antelope and aplomado falcon, but 
have not cited the existence of any state plan for these animals.\2\ 
State plans are in place with respect to desert bighorn sheep and 
black-tailed prairie dogs. My staff and I have examined these plans 
and discuss them below.
---------------------------------------------------------------------------

    \2\ It should be noted again that the State Director implemented 
your recommendation to close several thousand acres of potential 
aplomado falcon habitat to leasing.
---------------------------------------------------------------------------

Bighorn Sheep Plan

    In August 2003, the NMDGF developed the Plan for the Recovery of 
Desert Bighorn Sheep in New Mexico: 2003-2013 (Bighorn Sheep Plan). 
The Bighorn Sheep Plan lists the Guadalupe and Sacramento Mountains 
in Otero County and the Caballo Mountains in Sierra County as 
unoccupied historic bighorn sheep habitat and as potential 
transplant areas.\3\ Bighorn Sheep Plan, p. 20 & Table 5. While 
bighorn sheep do not currently inhabit any BLM lands in the planning 
area, New Mexico BLM noted the possibility of bighorn sheep 
reintroduction in the Proposed RMPA/EIS. See e.g. Proposed RMPA/EIS 
pp. 3-23, 4-37, 4-39. The New Mexico BLM also recognized the 
Cornudas Mountains and Brokeoff Mountains as potential future 
bighorn habitat, but those areas are not listed as potential 
transplant areas in the Bighorn Sheep Plan. See Draft RMPA/EIS, p. 
2-23, Table 2-7. You have stated your view that areas suitable for 
desert bighorn reintroduction ``need to remain closed to oil and gas 
development.''\4\ CRR, p. 14.
---------------------------------------------------------------------------

    \3\ The Sacramento Mountains do not have historic accounts of 
bighorn sheep prior to the 1930s. Bighorn Sheep Plan, p. 20.
    \4\ Currently, under the 1986 White Sands RMP that BLM is now 
attempting to amend, the majority of these areas are actually open 
for potential leasing. Little, if any, leasing has actually occurred 
though.
---------------------------------------------------------------------------

    The Bighorn Sheep Plan goal is to increase bighorn sheep 
populations to the point where the species can be removed from the 
state endangered species list. Bighorn Sheep Plan, p. 50. The plan 
includes a number of strategies for addressing individual issues 
related to the overall goal. However, the plan does not include a 
schedule of actions related to these strategies. The plan is 
described as ``a broad scale document and as such is not specific in 
nature.'' Bighorn Sheep Plan, p. iii. Thus, there is no timeframe 
for reintroducing bighorn sheep into specific areas, and often 
important barriers must be overcome before any transplant projects 
could be undertaken. In the Guadalupe and Sacramento Mountains, the 
plan notes that currently ``aoudads, domestic sheep, and feral goats 
preclude transplants.'' Id., at Table 5. Regarding the Caballo 
Mountains, past local public opposition is noted as a barrier to 
reintroduction. Id., at p. 20 & Table 5.
    Oil and gas activities are not discussed at length in the 
Bighorn Sheep Plan (with only a single paragraph devoted to the 
topic). Bighorn Sheep Plan, p. 37. The existence of this land use 
plan amendment process is noted in this section, but no 
recommendations are offered. Id. Interestingly, the plan says that 
in other potential habitat areas, federal lands have been withdrawn 
from leasing while state lands in the area have been leased. Id. No 
special provisions to accommodate bighorn habitat on state lands 
with oil and gas

[[Page 3553]]

potential have been described in the Bighorn Sheep Plan or in the 
Consistency Review and Recommendations.
    The Bighorn Sheep Plan's objective is the following:

    To have a minimum of 500 free-ranging desert bighorn sheep in at 
least 3 geographically distinct self-sustaining populations, each of 
which contains at least 100 bighorn, and to delist the subspecies 
under the New Mexico Wildlife Conservation Act at that time.

    Bighorn Sheep Plan, p. 50. In spring 2003, there were an 
estimated 304 desert bighorn in New Mexico at six locations. Id., p. 
6. The state plan identifies 12 potential transplant areas. Id., 
Table 5. Several of these areas have fewer issues that must be 
overcome before a transplant could occur than the potential 
transplant areas in the Caballo, Guadalupe, and Sacramento 
Mountains. Id. Thus, it does not appear that these areas are 
essential for achieving the Bighorn Sheep Plan goal.
    Additonally, it should be noted that merely making areas 
available for leasing in an RMP does not dictate that leases must be 
issued and development must occur. These areas have been open to 
leasing for decades without activities occurring. Further, under the 
standard lease terms and conditions, BLM retains the ability to 
prevent the location of surface disturbing activities in 
environmentally sensitive areas. The extreme slopes associated with 
bighorn sheep terrain, as a practical matter, may often prevent a 
conflict with oil and gas activities. See Bighorn Sheep Plan, p. 1 
(``Habitat Requirements''). Several thousand acres of bighorn 
habitat in the Guadalupe, Sacramento, Cornudas, and Brokeoff 
Mountains are already slated for increased protection because they 
are included in ACECs, areas nominated for ACEC status, or 
Wilderness Study Areas and would be closed to leasing under the 
Proposed RMPA. In short, you have not pointed to an actual 
inconsistency between the BLM proposed action and the Bighorn Sheep 
Plan, and our review does not show any inconsistency.
    Both the Bighorn Sheep Plan and the BLM's EIS suggest that, of 
the potential transplant locations in BLM's planning area, the 
Caballo Mountains possess the best bighorn habitat. See Bighorn 
Sheep Plan, p. 20; Proposed RMPA/EIS, p. 4-39. However, the Bighorn 
Sheep Plan understates the problems associated with reoccupying this 
habitat. For example, in the Caballo Mountains area there are well 
over a hundred active mining claims and several hundred miles of 
roads crisscrossing the area. Many of these roads are regularly used 
by members of the local community. In 1992, BLM worked closely with 
the NMDGF to try to bring Bighorn Sheep to the area, but local 
opposition eventually prevented a transplant. New Mexico BLM sees no 
evidence that this situation has changed.
    Nevertheless, the New Mexico BLM State Director has agreed to 
defer any leasing in the Caballo Mountains for five years as the 
NMDGF continues to evaluate the area for possible reintroduction 
efforts. The State Director will then evaluate the progress of 
NMDGF, and, if BLM finds it unlikely that reintroduction would occur 
within the life of the Bighorn Sheep Plan, the area will be 
available for potential leasing at that time. Again, making the area 
available for potential leasing would not mean that leasing would 
necessarily occur, and historically little interest been expressed 
in obtaining fluid mineral leases in the Caballo Mountains.

Black-Tailed Prairie Dog Plan

    The NMDGF completed the Conservation Management Strategic Plan 
for Black-Tailed Prairie Dogs in New Mexico (Prairie Dog Plan) in 
November, 2001. This plan is a ``working plan'' designed to guide 
activities ``toward developing a final conservation and management 
strategy for black-tailed prairie dogs in New Mexico.'' Prairie Dog 
Plan, p. 1. The New Mexico BLM participated in the Working Group 
that helped to craft the plan, along with several other federal 
agencies, state agencies and non-government organizations. Prairie 
Dog Plan, p. 23. The BLM also ``supplied substantial assistance'' 
with the baseline survey associated with the Prairie Dog Plan. 
Prairie Dog Plan, p. 38. The stated goal in the Prairie Dog Plan is 
to ``determine and achieve an appropriate balance of conservation 
and management'' of prairie dogs to preclude the listing of the 
species on either the national or state endangered species lists. 
Prairie Dog Plan, p. 10.
    The plan outlines a number of broad objectives and lists 
potential strategies. One objective is to achieve 97,000 acres of 
occupied habitat statewide within 10 years based upon a 6.5% annual 
increase. Prairie Dog Plan, p. 16. You have noted this objective as 
well as the objective to identify and encourage maintenance of 
important existing habitats. CRR, p. 14; see Prairie Dog Plan, p. 
12. You have noted the unique characteristics of the small prairie 
dog colonies in Sierra and Otero Counties and have described them as 
``extremely vulnerable.'' CRR, p. 14. You conclude that the 
``habitat loss and fragmentation that will very likely occur under 
Alternative A (modified) of the PRMPA/FEIS will be counterproductive 
to this plan's population and distribution goal.'' CRR, p. 14.
    As you may be aware, the State of New Mexico currently manages 
the black-tailed prairie dog as a ``rodent pest'' under the 
supervision of the Department of Agriculture, see Prairie Dog Plan, 
p. 24, and authorizes State agents to control prairie dog 
populations through lethal means on State and private lands. See 
generally, N.M. Stat. Ann. Sec.  77-15 (Michie 2004) (``Predatory 
Wild Animals and Rodent Pests''). The prairie dog is not managed as 
wildlife by the NMDGF. I recognize, though, that the Prairie Dog 
Plan represents an important step on the part of the State towards 
increasing the population of prairie dogs.
    I find that the Proposed RMPA is already consistent with the 
goals and strategies of the Prairie Dog Plan. The Proposed RMPA 
protects the prairie dog as a ``special status species.'' See 
Proposed RMPA/EIS, pp. E-2, E-3. While the Fish and Wildlife Service 
recently decided that the black-tailed prairie dog did not warrant 
Endangered Species Act listing--which removes it as a formal special 
status species'New Mexico BLM will continue to manage the black-
tailed prairie dog as a de facto special status species in Sierra 
and Otero Counties under the Proposed RMPA. See 69 FR 51217 (August 
18, 2004). Because of their special status species designation, BLM 
will specifically analyze and mitigate impacts to occupied prairie 
dog colonies in the planning area during site specific NEPA 
analysis. This action should further assist NMDGF in reaching the 
goals of the Prairie Dog Plan.

(vi.) Noxious Weed Management Act (CRR, Sec.  II. D.)

    The New Mexico Noxious Weed Management Act authorizes the 
creation of weed control districts. You have not described any 
inconsistency with the act, its implementing regulations, or 
specific weed management plans in your Consistency Review and 
Recommendations. The New Mexico BLM has noted the problem of noxious 
weeds throughout the planning process and has committed itself to 
implementing site-specific preventative measures. See Proposed RMPA/
EIS, Appendix B, p. B-9. In addition, the New Mexico BLM has been an 
active partner with state agencies and local officials in the battle 
against noxious weeds. In Otero County alone, BLM has annually 
provided over $10,000 worth of assistance since 1996 to support weed 
control efforts. Your comments on the efficacy of BLM measures has 
been noted, but you have not identified an actual inconsistency with 
a state plan, policy or program that can be addressed through this 
appeal procedure.

(vii.) State Water Plan (CRR, Sec.  II. E.)

    The New Mexico State Water Plan was released on December 23, 
2003. Your Consistency Review and Recommendations provides a general 
summary of the New Mexico State Water Plan's goals; however, the 
description of potential inconsistencies focuses mainly on 
statements from the BLM's Proposed RMPA/EIS without detailing how 
these statements are inconsistent with specific provisions in the 
State Water Plan. As you note in your appeal letter, these issues 
have been raised in separate protests, and they are more properly 
addressed in that context. Here, my focus is on any inconsistencies 
between the proposed plan and state plans, policies, or programs 
rather than on alleged inadequacies of the BLM's NEPA analysis.
    The State Water Plan is only quoted once in your discussion. 
CRR, p. 20. There you state that an increase in the areas covered by 
standard lease terms and conditions is contrary to the following 
State Water Plan policy statement: ``The State shall support and 
conduct watershed restoration projects with a high potential to 
increase the water supply or improve the quality of water.'' You 
further explain that the Tularosa-Salt Basin Regional Water Plan 
lists watershed restoration as a potential source of up to 15,000 
acre-feet of water. Then you conclude, ``Therefore, standard lease 
terms and conditions are not adequate to properly safeguard such 
opportunities to ensure that future supplies of fresh water are 
adequately protected.''

[[Page 3554]]

    I do not find an inconsistency between the Proposed RMPA and 
State support for watershed restoration. All riparian areas, 
wetlands, and playas in the planning area are subject to a quarter-
mile ``No Surface Occupancy'' stipulation. Proposed RMPA/EIS, p. D-
6. Also, standard lease terms and conditions do have resource 
protection and reclamation provisions.\5\ Any wells will be subject 
to a casing and cementing program designed to protect groundwater 
resources and will be properly plugged when operations cease. See 
Proposed RMPA/EIS, pp. 4-15 to 4-17. As discussed below, the New 
Mexico BLM will continue to require that operators secure necessary 
State permits. Further, BLM agrees with you that it is ``extremely 
important to implement best management practices in oil and gas 
operations' to protect water resources. CRR, p. 21; Proposed RMPA/
EIS, pp. B-4 to B-9.
---------------------------------------------------------------------------

    \5\ BLM has broad discretion under the standard lease terms to 
require actions that minimize environmental impacts. Section 6 of 
the standard lease terms requires, ``Lessee shall conduct operations 
in a manner that minimizes adverse impacts to the land, air, and 
water, to cultural, biological, visual, and other resources and to 
other land uses or users. Lessee shall take reasonable measures 
deemed necessary by lessor [BLM] to accomplish the intent of this 
section.'' Section 12 states, ``At such time as all or portions of 
this lease are returned to lessor [BLM], lessee shall * * * reclaim 
the land as specified by lessor [BLM] * * *''
---------------------------------------------------------------------------

(iix.) Water Quality Control Commission Regulations (CRR, Sec.  II. 
(F))

    Regarding the Water Quality Control Commission, you have cited 
section 74-6-12 of the state code, prohibiting water quality 
impairments that exceed standards. BLM agrees that water quality 
standards should not be exceeded. See e.g., Proposed RMPA/EIS, p. 4-
16. The BLM proposed plan requires casing measures to prevent fluid 
or gas migrations that could degrade groundwater. See Proposed RMPA/
EIS, p. 4-15. You have not described where water quality standards 
have been exceeded, or even where you believe standards might likely 
be exceeded because of the BLM proposed plan. I know the New Mexico 
BLM recognizes the importance of water resources, and I will further 
instruct local BLM officials to diligently monitor any operations 
that may occur in the planning area.

(ix.) Executive Order for Proposed Rules on Pits and Injections 
Wells (CRR, Sec.  II. (G))

    Your January 31, 2004 Executive Order 2004-005 directed that the 
Oil Conservation Division (OCD) ``shall adopt a moratorium 
prohibiting the use of pits at Otero Mesa'' and ``shall immediately 
propose rules to prohibit pits associated with any oil and gas 
drilling at Otero Mesa.'' The executive order also directed OCD to 
``prepare and propose regulations to implement produced water re-
injection standards and controls.'' As you can imagine, it was 
difficult for the State Director to assess consistency with rules 
that were not yet even proposed. Yet, even though the executive 
order was issued after the Proposed RMPA/EIS was published, State 
Director Rundell addressed the issue in her reply to your 
Consistency Review and Recommendations. She stated that ``we will 
work with OCD as new State rules are finalized to make sure we 
adhere to them.'' State Director's CRR Response, p. 5. On August 13, 
2004, OCD approved new rules that prohibit the use of pits over much 
of the planning area and place additional requirements on injection 
wells and related facilities used to dispose of produced water. 
These rules went into effect over seven months after the Proposed 
RMPA/EIS was published.
    In your appeal letter, you have described the New Mexico BLM 
position as ``helpful'' and, thus, there is apparently now no 
alleged inconsistency to address. Appeal, p. 12. To the extent you 
continue to be concerned, let me assure you that the New Mexico BLM 
will continue to require that operators secure necessary State 
permits.

(x.) Cultural Resources Consultation Issues (CRR, Sec.  II. (H & 
J))

    You expressed concern with the New Mexico BLM's consultation 
process regarding cultural resources. While you have cited a number 
of federal statutes, regulations, and guidance documents, you have 
not discussed any alleged inconsistencies with state resource 
related plans, policies or programs. You have noted the existence of 
the New Mexico Cultural Properties Act, but you have not alleged any 
inconsistency with state plans, policies, or programs instituted 
under that statute.
    Ensuring that BLM properly consults with tribes and other 
relevant parties is a high priority for me, and I have noted your 
concerns. However, this consistency review appeal response is not 
the proper forum for examining the New Mexico BLM's compliance with 
the federal statutes you have listed. Some of these issues were 
raised in protests, and they are more appropriately addressed in 
that context.
    Regarding your policy of government-to-government relations with 
tribes, BLM agrees that tribes have certain sovereign powers and 
should be treated accordingly. Contrary to your statement in the 
Consistency Review and Recommendations, BLM regulations do not 
expect a state governor to review and recommend changes on behalf of 
tribes. BLM will certainly consider consistency related comments 
received directly from tribes and local governments. See 43 CFR 
1610.3-2(c). The regulations merely establish a special procedure 
for state governors to raise inconsistencies with state resource 
related plans, programs, and policies. These regulations were 
promulgated in 1983, and I will consider your comments in 
determining whether a future modification of the regulations is 
warranted.

(xi.) Scope of NEPA Alternatives (CRR, Sec.  II. (I))

    Concerns about the application of NEPA and other federal 
statutes are not potential inconsistencies with state resource 
related plans, policies, and programs that can be addressed in this 
context. Your comments have been noted and will be considered in the 
decision making process. As you know, the New Mexico BLM did issue a 
Supplement in May, 2004 and accepted public comment regarding the 
proposed action. I understand that this action has not removed all 
your NEPA-related objections, but this appeal is not the proper 
place to address disagreements over the implementation of federal 
statutes. Again, some of these issues have been raised in protests, 
and they are more appropriately addressed in that context.

(xii.) Alternative Energy Program (CRR, II. (K))

    The Consistency Review and Recommendations notes various state 
laws that encourage alternative energy, but no inconsistencies with 
the proposed plan amendment are raised. As noted earlier, this 
amendment process focused on fluid minerals and was not designed to 
directly address other planning topics. Soon the New Mexico BLM will 
initiate a much broader planning process for Sierra, Otero, and Dona 
Ana Counties. Issues not directly addressed in this current planning 
amendment process'such as grazing, recreational uses, and 
alternative energy issues--will be addressed, and your input is 
welcomed during that process.

Summary of Potential Inconsistencies

    I find that you have not raised any actual inconsistencies with 
state resource related plans, policies, or programs. Much of what 
was presented in your Consistency Review and Recommendations set 
forth objections to the BLM's proposed plan amendment and the 
associated environmental analysis. While these comments are useful 
as part of the BLM planning process, this appeal decision only 
concerns inconsistencies with officially approved resource related 
state plans, policies, and programs. Comments that addressed federal 
statutes do not raise inconsistencies that can be addressed through 
the state consistency review appeal process. Many of the issues you 
raised were addressed previously through the protest procedure. As a 
general matter, you have not directed me to specific inconsistencies 
and, upon further review of the state plans, policies, and programs 
that you have cited, I have found no inconsistencies. Where you did 
identify officially approved state plans, such as the Bighorn Sheep 
Plan, Prairie Dog Plan, and State Water Plan, I have attempted to 
clarify BLM's consistency and have directed New Mexico BLM to take 
actions that further assist the reaching of plan goals. Where the 
State has instituted recent regulatory changes regarding the use of 
pits and injection wells, the State Director has already agreed to 
continue the traditional New Mexico BLM policy of requiring federal 
lessees to secure necessary permits from State environmental 
regulators.
    I also note that several aspects of your recommended plan do not 
appear to be consistent with the current management of New Mexico 
state lands that are leased for oil and gas development. For 
example, the leased state lands in the Otero Mesa desert grassland 
area are not bound by the extensive ``No Surface Occupancy'' 
stipulations that you recommend for similar federal public lands. 
Additionally, several of your other recommended leasing 
stipulations--such as

[[Page 3555]]

the recommended stipulation limiting drilling to one surface 
location per 1,440 acres--are not incorporated into State rules or 
fluid mineral leases. The measures in the BLM's proposed plan would 
generally place more restrictions on oil and gas related activities 
than are currently present on nearby state lands. The BLM's 
consistency review process exists to help prevent incompatible land 
management systems in areas of mixed management. Since the 
recommendations contained in your Consistency Review and 
Recommendations are generally not implemented on state lands, I find 
that there would not be discordant management between closely 
situated federal and state lands that might warrant the adoption of 
your recommendations.

Discretionary Review of Governor's Recommended Alternative

    The consistency review process is generally designed to 
highlight specific inconsistencies between proposed BLM actions and 
officially approved state resource related plans, policies, and 
programs. Although you have not raised the type of inconsistencies 
associated with review under section 1610.3-2 of the BLM planning 
regulations, I recognize that you have documented a variety of 
concerns and disagreements with the Proposed RMPA/EIS. You have 
presented an alternative course of action and recommended its full 
adoption. Therefore, in my discretion as BLM Director, I have 
decided to re-examine your recommended alternative in light of the 
federal and State interests involved.

Federal and State Interests

    Under the Federal Land Policy and Management Act (FLPMA), BLM 
must ``use and observe the principles of multiple use'' when 
developing and revising land use plans. 43 U.S.C. 1712 (c)(1). 
Through the land use planning process BLM makes choices among a host 
of possible land uses. The multiple use mandate does not require 
that all uses be available upon every acre of public land. Indeed, 
the choice of one use in a particular area, by its very nature, may 
exclude some possible uses while being compatible with still others. 
Overall, however, the public lands managed by BLM are utilized by 
the nation in an astonishingly wide variety of ways.
    Here, the New Mexico BLM has proposed to amend the White Sands 
RMP. The White Sands RMP addresses a wide range of uses including 
recreational uses, wildlife habitat areas, and livestock grazing to 
name but a few. While the Proposed RMPA/EIS considers decision 
possibilities that relate primarily to oil and gas leasing, it does 
so with the implicit recognition that any decision may impact the 
availability of other uses. The integrated planning and NEPA 
analysis process is designed to insure that the impacts of any 
proposed action are clearly understood. BLM takes a similar view 
when it considers any RMP amendment focused on a particular subset 
of uses (such as the 1997 RMP amendment addressing Areas of Critical 
Environmental Concern).\6\
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    \6\ The White Sands RMP has been amended four times since it was 
adopted in 1986.
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    In short, when making land use decisions BLM must balance a 
variety of interests. Of particular importance here is the national 
interest in domestic oil and gas production. In the Mining and 
Minerals Policy Act of 1970 Congress declared,

    [I]t is the continuing policy of the Federal Government in the 
national interest to foster and encourage private enterprise in (1) 
the development of economically sound and stable domestic mining, 
minerals,\7\ metal and mineral reclamation industries, [and] (2) the 
orderly and economic development of domestic mineral resources, 
reserves and reclamation of metals and minerals to help assure 
satisfaction of industrial, security and environmental needs * *

    *\7\ ``Minerals'' is specifically defined to include ``all 
minerals and mineral fuels including oil, gas, coal, oil shale and 
uranium.'' 30 U.S.C. 21a.
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30 U.S.C. 21a. Later, in the Federal Land Policy and Management Act 
of 1976 (FLPMA), Congress noted,

    [I]t is the policy of the United States that * * * the public 
lands be managed in a manner which recognizes the Nation's need for 
domestic sources of minerals, food, timber, and fiber from the 
public lands including implementation of the Mining and Minerals 
Policy Act of 1970. * * *

43 U.S.C. 1701(a)(12). Thus, Congress has stated a strong national 
interest in the production of oil and gas on public lands. BLM, in 
keeping with the multiple use mandate, is charged with balancing 
this interest along with other valid interests as it manages the 
public lands entrusted to its supervision.
    Similarly, the State of New Mexico shares an interest in the 
development of oil and gas resources in Sierra and Otero Counties. 
The State of New Mexico would receive one half of the royalties paid 
on any oil or gas produced from these public lands. Also, the state 
is a major landowner within these two counties and has already 
leased thousands of acres of land for oil and gas development in 
this same area. Patrick H. Lyons, the State of New Mexico 
Commissioner of Public Lands, provided New Mexico BLM with written 
comments during the most recent public comment period. In his 
comments, the Commissioner stated,

    The state's trust holding in the greater Otero Mesa area are 
second only to the federal acreage position and with these vast 
holdings comes a keen awareness of the potential to develop a 
secure, domestic energy resource and produce significant long-term 
revenue for New Mexico, while at the same time recognizing the need 
to harmonize development with environmental and cultural resource 
protection.

    Supplement comment letter of Commissioner Patrick H. Lyons, June 
3, 2004. According to Commissioner Lyons, ``[T]he State Land Office 
has leased approximately 80,000 acres of land in the area of Otero 
Mesa for oil and gas development.'' Id. Commissioner Lyons noted 
that state mineral and surface lands are ``held in trust to benefit 
important New Mexico institutions, most notably our public schools 
and universities.'' Id. He concluded that the proposed plan 
presented in the Proposed RMPA/EIS and the Supplement ``allows 
balanced and sustainable development of oil and gas resources at 
Otero Mesa in southern New Mexico.'' Id. The Commissioner also 
stated, ``Any additional delays in the leasing and development 
process has the potential to deprive trust beneficiaries of much 
needed funding and is not in the best interest of the trust.'' Id.
    Comments were also received from the Otero County Economic 
Development Council. The Council's president stated, ``We feel that 
the addition of an oil and natural gas industry to Otero County is 
an important diversification of our economy and will shore up the 
jobs lost in recent years to the decline in the forest industry. We 
feel that your plan adequately addresses the balance between this 
new industry and environmental concerns.'' Supplement comment letter 
of Laura Bregler, June 1, 2004.
    I would be remiss if I did not give some consideration to the 
views of the Commissioner of Public Lands and local leaders when 
reviewing the balance of national and state interests. I am also 
aware, however, that many public leaders, organizations, and 
individuals from within and beyond New Mexico expressed a wide range 
of views on this topic. Some opposed any development; some supported 
your alternative; some supported the preferred plan in the Proposed 
RMPA/EIS; and some felt that the proposed plan placed too many 
restrictions on development.
    In your appeal you have noted the state's interest in the 
natural character, water resources, wildlife, and cultural resources 
found in Sierra and Otero Counties. Clearly, there is a national 
interest in these as well. FLPMA, in addition to recognizing the 
need for domestic sources of minerals, also states it is the policy 
of the United States that,

    The public lands be managed in a manner that will protect the 
quality of scientific, scenic, historical, ecological, 
environmental, air and atmospheric, water resource, and 
archaeological values; that, where appropriate, will preserve and 
protect certain public lands in their natural condition; that will 
provide food and habitat for fish and wildlife and domestic animals; 
and that will provide for outdoor recreation and human occupancy and 
use.

    43 U.S.C. 1701(a)(8). I have taken these interests into account 
as I have considered your appeal. I recognize that the Chihuahuan 
Desert is a special place, and BLM plays an important role in the 
proper management of this region.\8\
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    \8\ Before addressing your recommendations, I would first like 
to correct two misunderstandings regarding the Reasonably 
Foreseeable Development Scenario (RFD) and the 5% rule in BLM's 
proposed plan.
    In your appeal, you have stated that the proposed plan's 5% rule 
allows ``disturbance of 5,244 acres in the Otero Mesa grasslands.'' 
(Appeal, p. 8). This is not accurate. The 5% rule is not a 
disturbance authorization; rather, it is a limitation applicable to 
every exploratory unit that will be formed in the Otero Mesa and 
Nutt desert grassland areas. See Proposed RMPA/EIS, pp. 2-28, D-10. 
The RFD's short term disturbance figure of 1,589 acres is not 
expanded or affected in any way by the 5% rule. For example, even if 
the total disturbance within the entire planning area were still far 
below the 1,589 acre level, lessees within an exploratory unit could 
not disturb more than 5% of the surface area within that unit. 
Likewise, the lessees within an exploratory unit would not be exempt 
from the impact of a maximized RFD disturbance level merely because 
their particular unit only contained 1% disturbance at the time the 
overall 1,589 acre level was reached.
    Also, allow me to clarify the relationship between acres leased 
and acres disturbed. You state, ``My recommended plan, in fact, 
provides more acreage for oil and gas activity than the BLM 
anticipates will be disturbed in its forecast of the Reasonable 
Foreseeable Development (RFD) in the two counties.'' (Appeal, p. 2) 
Later, you state, ``My plan certainly allows for development in more 
than the 1,600 acres needed to sustain the RFD. * * *'' (Appeal, p. 
4). However, simply opening more than 1,600 acres to leasing does 
not assure that any oil and gas development can occur. Disturbed 
acreage will normally be much smaller than the actual size of a 
mineral lease. This is because even a standard vertical well will 
normally produce from a subsurface area that is much larger than the 
disturbed drill pad area. Further, the RFD disturbance level is 
based on the projected success of exploration activities throughout 
this largely unexplored planning area. Undoubtedly, some areas will 
emerge as more desirable for drilling than others. The RFD does not 
assume that allowing operations on any random 1,589 acres within the 
planning area will lead to the level of activity forecasted.

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[[Page 3556]]

Discussion of Recommendations

    You have recommended the following land designations for the 
approximately 2.1 million acre planning area: 310,554 acres of 
discretionary leasing closures; 333,200 acres that would be open to 
leasing but subject to a ``No Surface Occupancy'' stipulation; 
894,264 acres open to leasing but subject to expanded stipulations; 
and 709,350 acres open subject to standard leasing terms and 
conditions. As you noted in your appeal, these recommendations are 
similar to ``Alternative B,'' first described in the Draft RMPA/EIS. 
Because of the similarities to that alternative (which has been 
before the public since 2000) and to other public comments that 
advocated similar measures, the State Director decided not to 
initiate a special public comment period regarding your 
recommendations. That specific decision is not the subject of this 
appeal; however, I note BLM received numerous comments addressing 
your recommendations in the May 28th through June 28th public 
comment period offered in association with the Supplement. These 
comments on your recommendations have been noted and are being 
considered in the ongoing decision-making process. One of your 
proposed stipulations, however, would limit drilling to one surface 
location per 1,440 acres.
    I believe the BLM's current proposed plan balances the need to 
allow for exploration activities with the need to protect wildlife 
habitat, water resources and the overall environmental health of the 
area. After reviewing your appeal, however, I cannot say that your 
recommended plan provides a reasonable balance of the national and 
state interests involved because your plan would make exploration 
activities difficult or impossible over a majority of the planning 
area.
    Your recommended plan would completely close 310,554 acres (15% 
of the planning area) to any drilling, including directional 
drilling from offsite well pads. Your recommendation would also 
place a ``No Surface Occupancy'' (NSO) stipulation on 333,200 acres 
(16% of the planning area). Under such a stipulation, exploration 
and development could only be done on the margins of the NSO areas 
via directional wells started offsite. Your proposal also includes 
twelve leasing stipulations. Some of these proposed stipulations 
closely parallel existing BLM best management practices (BMPs).\9\ 
However, your proposed stipulation allowing only one surface 
location per 1,440 acres would apply to some 894,264 acres (44% of 
the project area). This translates to one well pad per 2\1/4\ square 
miles.\10\ As you acknowledge, this is not consistent with the 
current statewide rules for gas well spacing'one well per 160 acres. 
CRR, p. 42. This stipulation could limit the exploration flexibility 
needed to properly understand the subsurface resource. It could also 
produce a disincentive for exploration because, after an initial 
vertical well is drilled, directional drilling would be required.
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    \9\ All BLM offices are instructed to consider applying certain 
BMPs, such as interim reclamation of well locations, in nearly all 
circumstances. Seasonal restrictions, requiring multiple wells from 
a single pad, and the burying of power lines and flow lines in or 
near roads are examples of BMPs implemented based on case-by-case 
analysis. See BLM Instruction Memorandum No. 2004-194. It is quite 
possible that these and other BMPs will be appropriate for well 
sites in Sierra and Otero Counties. BMPs are typically implemented 
as mandatory conditions of approval when BLM responds to site-
specific Applications for Permits to Drill (APDs) with project-
specific NEPA.
    \10\ Given the relatively small number of wells anticipated 
under the RFD (141 total wells, of which 84 are projected to be 
producing wells) and the large size of the planning area, it is 
quite possible that no more than one surface location will be 
disturbed per 1,440 acres. In certain circumstances, however, it may 
be environmentally beneficial to cluster pads rather than widely 
spacing them.
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    It is important to remember that Sierra and Otero Counties are 
frontier exploration areas. While some 101 wildcat wells have been 
drilled between 1925 and 2003, none have led to full production. Any 
alternative, therefore, must be able to adequately accommodate 
exploration activities if it can truly be said to meet the national 
and state interests associated with domestic oil and gas production.
    In your appeal you state, ``Directional drilling allows for 
production and is the way to reconcile state and national policies 
in this area.'' Appeal, p. 20. Directional drilling is an important 
and useful drilling technique that can limit surface disturbances 
over subsurface target areas. Directional drilling is generally most 
effective during the production phase of oil or gas development when 
the subsurface reservoir characteristics are better understood.\11\ 
This type of drilling is strongly encouraged by the BLM when 
appropriate. See e.g., BLM Instruction Memorandum No. 2004-194. 
Directional wells undoubtedly have some value at the exploration 
stage, but it is highly unlikely that the large areas placed under 
your proposed NSO stipulation could be effectively explored using 
only directional wells.
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    \11\ I note that the Biodiversity Conservation Alliance article 
cited in your appeal focuses mainly on production phase efficiencies 
associated with directional drilling and contains less than two 
paragraphs addressing the directional drilling of exploratory wells. 
Erick M. Molvar, Drilling Smarter: Using Directional Drilling to 
Reduce Oil and Gas Impacts in the Intermountain West, Biodiversity 
Conservation Alliance, p. 8, 16.
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    At least one expert familiar with the planning area, Ronald F. 
Broadhead (Associate Director and Principal Senior Petroleum 
Geologist of the New Mexico Bureau of Mines & Mineral Resources) has 
concluded, ``In frontier exploration areas such as Sierra and Otero 
Counties, exploration and initial development must be accomplished 
through the drilling of vertical, and not horizontal, wells.'' Draft 
RMPA/EIS comment letter of Ronald F. Broadhead, March 27, 2001, 
Proposed RMPA/EIS, Appendix G, p. G-I-45. As Mr. Broadhead has since 
clarified, his comments were not meant to suggest that some deviated 
wells (which, as he says, ``are more similar to a vertical well than 
a horizontal well'') could not be used in the exploration phase. 
Supplement comment letter of Ronald F. Broadhead, June 21, 2004. 
However, neither Mr. Broadhead nor any other recognized expert has 
suggested that deviated wells are capable of exploring the large NSO 
areas present in your recommended plan.
    For example, in Township 24 South, Range 13 East, your plan 
would place a three mile by six mile area under an NSO stipulation 
(sections 7-24). This 18 square mile rectangle is bounded either by 
non-federal land or by still more land subject to the NSO 
stipulation. Assuming that ground access for directional drilling 
was possible from the non-federal NSO boundaries, a well would face 
a minimum horizontal displacement of 1.5 miles in order to explore 
targets in the center of sections 13 through 18. Thus, the 
uncertainty associated with a frontier exploration area and the 
large contiguous tracts involved combine to make exploration in much 
of your NSO zone highly unfeasible.
    It is common knowledge that a directionally drilled well is more 
costly and complicated than a comparable depth single vertical 
well.\12\ While the added costs are often justified by the ability 
to hit multiple high value subsurface targets and to protect 
important surface resources, such is not

[[Page 3557]]

always the case in an exploration context. Higher exploration costs 
can reduce the likelihood that areas will be economically feasible 
to explore. Potentially productive areas that remain unexplored can 
prevent the nation and New Mexico from realizing the benefits of 
domestic energy production.\13\
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    \12\ You provide an example in your Consistency Review and 
Recommendations estimating a 26% increase in per well costs between 
nine separate vertical wells and the more expensive nine directional 
wells drilled from a single drill pad. Consistency Review and 
Recommendations, p. 43. The per well cost differences would likely 
increase if fewer than nine wells were examined. A lesser number may 
be more realistic in a frontier exploration area. You did not 
discuss the horizontal displacement involved in your hypothetical 
situation, but it should be noted that your example was based on a 
drilling depth of 2,200 feet, while the area's most successful well 
in recent years was over 7,000 feet deep. Reaching such depths could 
be more difficult when extensive horizontal offsets and fractured 
geology, common in sections of the planning area, are also involved.
    \13\ For example, the unleased areas closest to the successful 
Bennett Ranch well location would be subject to the NSO stipulation 
under your alternative. Under the Proposed RMPA/EIS plan this area 
would be subject to stipulations, such as the 5% rule, that would 
allow for the possibility of limited exploration with both vertical 
and directional wells.
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Conclusion

    As previously discussed, you have not identified inconsistencies 
with state resource related plans, policies, and programs. Neither 
are your recommendations for federal public lands completely 
consistent with the management practices on state lands with oil and 
gas resources. Nevertheless, I have instructed the New Mexico BLM to 
take steps to further strengthen its support for the state plans, 
policies, and programs that you have noted. Among these steps are 
expanded protection for potential bighorn sheep habitat and occupied 
black-tailed prairie dog habitat in the planning area.
    Also, I have reviewed your complete recommended alternative as 
you requested. In short, your recommendations would place some 
1,538,018 acres (75% of the planning area), either off-limits to 
drilling completely or under stipulations that place significant 
barriers to effective exploration and development. Such a plan is 
unbalanced. Your recommended plan does not give reasonable 
consideration to the federal and state interest in domestic energy 
exploration and production in Sierra and Otero Counties, and it adds 
little significant protection for other natural resources. I 
therefore cannot approve your recommended alternative and must deny 
your appeal.
    The BLM proposed plan allows a reasonable opportunity for 
exploration and development, but the plan does not ignore the 
important environmental interests of the area. The plan closes the 
six Areas of Critical Environmental Concern (ACEC) to leasing. It 
also closes eight areas that have been nominated for ACEC status. As 
you previously recommended, the BLM proposed plan will not allow any 
fluid mineral leasing in the 35,790 acres of potential Aplomado 
falcon habitat located in the Nutt and Otero Mesa grassland areas. 
The broader grassland areas are subject to protective stipulations, 
including the 5% maximum disturbance rule. All of this is under the 
umbrella of the RFD-based analysis that anticipates short term 
disturbance from oil and gas activities of 1,589 acres throughout 
this nearly 2.1 million acre planning area. That disturbed area is 
less than one-tenth of 1% of the entire planning area. The proposed 
plan also includes strict landscape reclamation standards that will 
be applied to any areas of disturbance. I believe the BLM proposed 
plan offers a reasonable balance between energy needs and 
environmental considerations and improves the management regime 
found in the currently effective 1986 White Sands RMP. Under that 
plan, some 96% of the planning area would be open to leasing without 
any special stipulations.
    Again, I thank you for your participation in the land use 
planning process for Sierra and Otero Counties. Your appeal is 
hereby denied, and I affirm the decision of the New Mexico State 
Director. Although I have denied this appeal, it is my hope that the 
New Mexico BLM and the State of New Mexico will continue to 
communicate and cooperate on future issues.

     Sincerely,

Kathleen Clarke,

Director, Bureau of Land Management.

[FR Doc. 05-1315 Filed 1-24-05; 8:45 am]
BILLING CODE 4310-84-P