United States Department of the Interior BUREAU OF LAND MANAGEMENT Wyoming State Of?ce PO. Box 1828 Cheyemie, WY 82003-1828 In Reply Refer to: 3100 (921Bargsten) MAY 2 9 2019 CERTIFIED MAIL RETURN RECEIPT REQUESTED Receipt N0. 91 7199 9991 7036 1885 1629 Receipt N0. 91 7199 9991 7036 1885 1933 Kelly Fuller Tracy Opp Western Watersheds Project EOG Resources, Inc. PO. Box 779 600 17th Street, Suite 1000N Depoe Bay, OR 97341 Denver, CO 80202 SDR No. (Part 2) DECISION AFFIRMED IN PART, REMANDED IN PART I STAY ON NEW AUTHORIZATIONS ISSUED On March 5, 2019, the Bureau of Land Management (BLM), Wyoming State Office (WSO) issued a decision (Part 1) responding to a request for State Director Review (SDR) and stay from Western Watersheds Project (WWP) and Center for Biological Diversity (CBD). VVWP and CBD have challenged a decision by the Casper Field Of?ce (CFO) documented in the Finding ofNo Signi?cant Impact and Decision Record (F for the Sand Creek Project Environmental Assessment The Sand Creek Project proponent is EOG Resources, Inc. (BOG), a Federal oil and gas lessee and operator. The March 5, 2019,- decision granted an extension of time (until April 4, 2019) for WWP and GED to submit supporting information, and inviting BOG to participate in the SDR process in accordance with WSO policy. On April 4, 2019, the WSO received the supplemental information filed by WWP and GED. On April 4, 2019, the WSO also received a document from Beatty Wozniak, P.C., representing ECG, and entitled Comments and Supporting Data on the Sand Creek Development Project Environmental Assessmen 1? ISSUES AND DISCUSSION and GED raised three new arguments in their supplemental information: (I) that the CFO ?was required to analyze both upstream and greenhouse gas emission prior to approving the Sand Creek project? (Supplement at page (2) the EA ?failed to take a hard look at impacts to migratmy birds and Project mitigation measures are inadequate to the potential harm? (Supplement at 1 The EA, and other project information are available at the e?Planning public internet site: page 11); and (3) the CF 0?s decision ?is improper because at least two of its underlying leases had expired prior to Project approval? (Supplement at page 11). We will address each of these new arguments in turn, below, and respond to the new issues raised by WWP and CBD. Since WWP and CBD did not provide any additional arguments or information related to their original claims (see SDR Part 1), and since the WSO found that WWP and original arguments were not sufficiently persuasive to grant a stay (id, pages we find no reason to change our ?ndings on WWP and original arguments. We affirm the decision with regard to WWP and original arguments. 1. Climate Change Impacts Arising from the Sand Creek Project?s Greenhouse Gas Emissions In their Supplement, WWP and CBD cite to several recent Federal district court decisions to support their argument that the CFO ?was required to quantify greenhouse gas emissions that would result from the Sand Creek oil and gas Project and did not.? (Supplement at page 2). We note that at least two of the Federal district court decisions cited by WWP and CBD (Supplement at page 3) include decisions that were issued after the decision and after the Part 1 decision, such as the March 19, 2019, decision in the District Court for the District of Columbia (WildEarz?h Guardians, er v. Zinke, er al., 1:16?cv?01724?RC) and the March 27, 2019, decision in the District Court for Colorado (Citizens for a Healthy ammuniiy v. US. Bureau OfLand A/[anagemenn No. 2019 WL 1382785). BLM Response 111 light of recent Federal district court decisions, the CFO has requested that the WSO remand this portion of their decision, to restore jurisdiction over the matter to the field of?ce (see Attachment 1) in order to prepare corrective NEPA analysis of GHGs and climate change. We agree that additional analysis of GHG emissions from the Sand Creek project and their effects is warranted. As requested,_we remand the decision described in the Sand Creek project FONSI and DR. While and until the CFO completes its additional analysis, the WSO is directing a stay of new CFO authorizations that could result in GHG emissions under the Sand Creek EA (new APD approvals or new Sundry Notice approvals for previously-unauthorized actual oil and gas operations). The US. Geological Survey recently found, ?Nationwide emissions from fossil fuels produced on Federal lands in 2014 were 1,279.0 million metric tons of carbon dioxide equivalent (MMT C02 Eq.) for carbon dioxide (CO2), 47.6 MMT C02 Eq. for methane (CH4), and 5.5 MMT CO2 Eq. for nitrous oxide (N20). Compared to 2005, the 2014 totals represent decreases in emissions for all three greenhouse gases (decreases of 6.1 percent for CO2, 10.5 percent for CH4, and 20.3 percent for In their supplement, WWP and CBD provide an estimate for the Sand Creek Project (Supplement at Page 6, estimating a total ?lifecycle GHG pollution? of ?up to 10,589,21036 tons? of about 9.6 or an average of around 0.3 using this estimate, the annual GHG emissions 2 Merrill, M.D., Sleeter, B.M., Freeman, P.A., Liu, 1., Warwick, P.D., and Reed, 8.0, 2018, Federal lands greenhouse gas emissions and sequestration in the United States?Estimates for 2005?14: US. Geological Survey Scientific Investigations Report 2018?5131, 31 i33/sir20185131. 3 We cannot vouch for the estimates provided by WWP and GED, and note some possible errors. For example, arising from production in the Sand Creek Project Area (under full development) would be approximately 0.02% of total GHG emissions from fossil fuels produced on Federal lands in 2014. The BLM recently4 estimated that Federal oil and gas leases in Wyoming could emit up to 27.1 C026 per year; under full development, and using WWP and GHG emissions estimates, the Sand Creek Project would contribute about 1 percent of the annual Wyoming Federal oil and gas GHG emissions. We ?nd there is no harm in allowing EOG to conduct operations under the few existing authorizations5 while the CFO remedies the procedural NEPA disclosure requirements for GHGs and climate change. We have determined that a stay on previouslyuanthorized activities is unnecessary while the CF 0 prepares its corrective NEPA analysis. 2. Migratory Birds In their Supplement, WWP and CBD cite the disclosure that impacts to birds protected under the Migratory Bird Treaty Act was possible, and that mitigation of these potential impacts ?would reduce but not eliminate the Project?s direct and indirect impacts to migratory birds.? (Supplement at page 11). As WWP and CBD acknowledge, ?most of the project is not on federal land? (Supplement at page 11), but believe the CFO has a duty to estimate the number of miles of ?undergrounded? (buried) power lines. WWP and CBD suggest that the Conditions of Approval (COAs) should require power line burial, since the EA acknowledges that some new power lines may be buried. BLM Response Other than for those power lines that are on?lease Federal oil and gas lease facilities owned and maintained by the lease operator or those that cross ELM-administered surface, construction and use of powerlines is not a Federal action requiring BLM authorization. In almost all cases, powerlines in the Sand Creek Project Area will be constructed and operated by third?party power companies on non-Federal surface, not the oil and gas lessee or their designated operator. In those cases, no BLM authorization is required (even when located on-lease, since a powerline owned and operated by a third party is not a lease facility),7 unless the powerline crosses BLMuadministered surface. As the EA acknowledges (at page 11), does not anticipate the installation of any of these utilities at this time; however, the need for them may arise in the future depending upon the well production; therefore, they are included in this NEPA analysis.? The EA also acknowledges the importantjurisdictional limits that exist within the mixed?ownership project area (see Attachment 1 to our Part 1 decision), stating (at page 51): he! following mitigation measures would be applied as COAs to split estate wells and as WWP and CEO estimated total natural gas production from the project area to be 81.172947 bcf, ?which would cause up to 6,035,160.94 tons [5,475,006 metric tons] of lifecycle C026 poliution.? (Supplement at page 6). However, the Environmentai Protection Agency?s GHG equivalencies calculator (avaiiable at indicates that this volume of natural gas would only contribute 4,47l,655 metric tons of C028, i8% less than WWP and CBD estimated. In addition, WWP and CBD also appear to overestimate the potential indirect emissions from the Sand Creek EA project. 4 Supplemental Environmental Assessment for the May 2015uAugust 2016 Sold and Issued Leases, 0000-201 at page 49. 5 On May l7, 2019, the CFO searched its records and found that the BLM has, to-date, authorized a total of 20 Federal APDs under the Sand Creek EA. 6 l6 U.S.C. 703 7 See, SDR at pages l5?17. recommend i-nitigation measures for fee-fee-fed wells: avoid collision and electrocution of raptors and other avifauna, power lines on Federal surface would be constructed in accordance with standards outlined in the Avian Protection Plan Guidelines (APLIC and USFWS .2005). In their EA, the CFO lists numerous other mitigation measures for the bene?ts of migratory birds (EA at pages 51-53). The EA also describes the potential effects, after mitigation, to migratory birds (EA at page 53, concluding: Residual impacts to migratory birds, raptors, and BLM sensitive species, such as habitat loss, disturbance, and mortality, would be negligible to minor after implementation of the mitigation measures and compliance with applicable state and Federal regulations. Furthermore, If any minor impacts to foraging or nesting habitat and individual species occur, they would be negligible over time. While WWP and CBD may believe the impacts to migratory birds are not adequately addressed in the EA, we find that the CFO carefully considered potential impacts that could arise from reasonably foreseeable future activities, weighed the limits to the authority within the mixed-ownership project area, and accurately concluded the potential impacts to migratory birds would be ?negligible.? The decision is entitled to deference in this regard (?the BLM, which is charged with managing wildlife habitat on public lands, does have expertise in wiidlife management, and its wildlife specialists participated in the preparation of the Their reasoned expert opinion, based on a ?rsthand knowiedge of the wildlife resources in the project areas, is entitled to considerable deference Wyoming Outdoor Council, et a1., E47 IBLA 110 (1998)). Furthermore, to the extent that WWP and CBD allege that potential incidental take under the MBTA is likely. from the Sand Creek project, the DOI has concluded that the META prohibition of take ?only applies only to direct and affirmative purposeful actions that reduce migratory birds, their eggs, or their nests, by killing or capturing, to human control.?3 The proposed action, as submitted by BOG, does not propose such actions, and so WWP and CBD are incorrect in asserting that the CFO must evaluate and mitigate take of META?protected birds within the Sand Creek EA. We affirm this portion of the decision. 3. Alleged Expiration of Federal Oil and Gas Leases WYW175928 and WY W17 7707 WWP and CEO allege that two Federal oil and gas leases within the Sand Creek project areas have and that ?[wjithout a valid lease, EOG Resources does not have a legal right to develop the portions of the Sand Creek project associated with those two leases.? (Supplement at page 12). BLM Response Lease WYW175928 was issued effective December 1, 2008, with a 10?year primary term. On July 17, 2018, EOG (a record title owner) requested a suspension of operations and production. On November 6, 2018, the CFO recommended approval of the suspension request, and on April 19, 2019, the WSO granted the suspension effective July 1, 2018, in accordance with BLM regulations and policy. 8 Solicitor?s Opinion, Memorandum ?Subject: The Migratory Bird Treaty Act Does Not Prohibit Incidental Take.? US. Department of the interior?s Office ofthe Soiicitor, December 22, 2017. public LR2000 database denotes the suspension, though WWP and CBD appear to have overlooked it. The lease is still valid and is currently authorized. Lease WYW177707 was issued effective January i, 2009, with a 10?year primary term. Under these terms, the lease would expire on December 3 l, 2018. This is currently shown in the LR2000 database. When a lease expires, the DOI Of?ce of Natural Resources Revenue (ONRR) submits a list of expiring leases to the BLM, who then coordinates with the ?eld office(s) to ensure that the conditions have not been met to extend or suspend lease expiration. In this case, the ONRR list was not received by the BLM for leases expiring in December 2018 until after the Federal government?s early 2019 lapse in appropriations. As a result, the coordination with the field of?ce was delayed, as was our determination as to whether the lease had expired, and the updates to information posted to LR2000. In a recent review of this lease conducted by the WSO and the CFO, we ?nd that the lease is currently held by production from the Catapult well (API number 49-009-3 865 7), and has not expired. We af?rm the authorizations as they pertain to operations on unexpired Federal oil and gas leases within Sand Creek Project Area. DECISION Consistent with the CF O?s request, we remand the decision described in the Sand Creek project FONSI and DR. While and until the CFO completes its supplementary analysis, the WSO is directing a stay of new CFO authorizations for previously?unauthorized actual operations that would result in additional greenhouse gas emissions under the Sand Creek EA. We af?rm the decision as it pertains to the remainder of WWP and arguments. This decision may be appealed to the Interior Board of Land Appeals, Of?ce of the Secretary, in accordance with the regulations contained in 43 CFR, Part 4 and Form 1842?1 (copy attached). If an appeal is taken, your notice of appeal must be ?led in this of?ce (at the above address) within 30 days from your receipt of this decision. The appellant has the burden of showing that the Decision appealed from is in error. If you Wish to ?le a petition (pursuant to regulation 43 CF for a stay of the effectiveness of this Decision during the time that your appeal is being reviewed by the Board, the petition for a stay must accompany your notice of appeal. A petition for a stay is required to show sufficient justi?cation based on the standards listed below. A copy of the notice of appeal and petition for a stay must also be submitted to each party named in this decision and to the Interior Board of Land Appeals and to the appropriate Of?ce of the Solicitor (see 43 CFR 4.413) at the same time the original documents are ?led with this of?ce. If you request a stay, you have the burden of proof to demonstrate that a stay should be granted. Standards for Obtaining a Stay Except as otherwise provided by law or other pertinent regulation, a petition for a stay of a decision pending appeal shall show sufficient justi?cation based on the following standards: I. The relative harm to the parties if the stay is granted or denied; 2. The likelihood of the appellant?s success of the merits; 3. The likelihcod of immediate and irreparable harm if the stay is not granted; and 4. Whether the public interest favci?s granting the stay. (5&9ng Deputy State Director Minerals and Lands Attachment (Form 1842? 1) cc: FM, Casper DM, High Plains District United States Department ef the lnterier BUREAU OF LAND MANAGEMENT Casper Field Office 2987 E?rospector Drive Casper, Wyoming 8260442968 May 23, 2019 In Reply Refer To: 3 1 60 Memorandum To: Deputy State Director for Minerals and Lands, Wyoming State Of?ce. From: Lonny Bagley f, fig 3 Field Manager, Casper ?m?f A 9?47 Subject: Remand of State Director Review for Sand Creek Environmental Assessment In light of the pending State Direct Review (SDR), on the Sand Creek Environmental Assessment (EA) I am requesting that the State Director remand the Sand Creek EA and so we may consider how best to remedy the concerns identi?ed about greenhouse gas emissions and climate change. Should you chose to remand this case, we would recommend a stay on new BLM authorizations for actual operations under the Sand Creek EA until a new decision is issued by the Casper Field Of?ce. sterner srare new? FSorm 18113242006 UNITED STATES eptem DEPARTMENT OF THE INTERIOR BUREAU OF LAND MANAGEMENT INFORMATION ON TAKING APPEALS TO THE INTERIOR BOARD OF LAND APPEALS DO NOT APPEAL UNLESS 1. This decision is adverse to you, AND 2. You believe it is incorrect IF YOU APPEAL, THE FOLLOWING PROCEDURES MUST BE FOLLOWED A person who wishes to appeal to the Interior Board of Land Appeals must ?le in the of?ce of the of?cer who made the decision (not the Interior Board of Land Appeals) a notice that he wishes to appeal. A person served 1' NOTICE OF with the decision being appealed must transmit the Notice of Appeal in time for it to be ?led in the of?ce where APPEAL it is required to be ?led within 30 days after the date of service. it a decision is published in the FEDERAL REGISTER, a person not served with the decision must transmit a Notice of Appeal in time for it to be ?led within 30 days after the date of publication (43 CFR 4.411 and 4.413). 2. WHERE TO FILE NOTICE OF APPEAL Bureau of Land Management 5353 Yellowstone Road, Cheyenne, WY 82009 or PO. Box 1828, Cheyenne, WY 82003 WITH COPY TO US Department of the Interior, Of?ce of the Solicitor, Rocky Mountain Region 755 Parfet Street #151, Lakewood, co 80215 3. STATEMENT OF REASONS Within 30 days after ?ling the Notice of Appeal, ?le a complete statement of the reasons why you are appealing. This must be ?led with the United States Department of the Interior, Of?ce of Hearings and Appeals, Interior Board of Land Appeals, 801 N. Quincy Street, MS 300-QC, Arlington, Virginia 22203. If you fully stated your reasons for appealing when ?ling the Notice of Appeal, no additional statement is necessary (43 CFR 4.412 and 4.413). WITH COPY TO SOLICITOR US. Department of the Interior, Of?ce of the Solicitor, Rocky Mountain Region 755 Parfet Street Lakewood, CO .80215 4. ADVERSE Within 15 days after each document is ?led, each adverse party named in the decision and the Regional Solicitor or Field Solicitor having jurisdiction over the State in which the appeai arose must be served with a igpyco??ga?) ?hep?orice of Appeal, the Statement of Reasons, and any other documents ?led . 3 . 5. PROOF OF SERVICE Within 15 days a?er any document is served on an adverse party, ?le proof of that service with the United States Department of the Interior, Of?ce of Hearings and Appeals, Interior Board of Land Appeals, 80E N. Quincy Street, MS BOO-QC, Ariington, Virginia 22203. This may consist of a certi?ed or registered mail "Return Receipt Card" signed by the adverse party (43. CFR 6. REQUEST FOR STAY Except where program-speci?c regulations place this decision in ?rli force and effect or provide for an automatic stay, the decision becomes effective upon the expiration of the time allowed for ?ling an appeal unless a petition for a stay is timely ?led together with a Notice oprpeal (43 CFR 4.21). If you wish to ?le a petition for a stay of the effectiveness of this decision during the time that your appeal is being reviewed by the Interior Board of Land Appeals, the petition for a stay must accompany your Notice of Appeoi (43 CFR 4.21 or 43 CFR 2801.10 or 43 CFR 288L10). A petition for a stay is required to show suf?cientjusti?cation based on the standards listed below. Copies of the Notice of Appeal and Petition for a Stay must also be submitted to each party named in this decision and to the Interior Board of Land Appeals and to the appropriate Of?ce of the Solicitor (43 CFR 4.4!3) at the same time the original documents are ?led with this of?ce. If you request a stay, you have the burden of proof to demonstrate that a stay should be granted. Standards for Obtaining a Stay. Except as otherwise provided by iaw or other pertinent regulations, a petition for a stay of a decision pending appeal shall show suf?cientjusti?cation based on the foIIOWing standards: (1) the relative harm to the parties if the stay is granted or denied, (2) the iikelihood of the appeliant's success on the merits, (3) the iikelihood of immediate and irreparable harm if the stay is not granted, and (4) whether the public interest favors granting the stay. Unless these procedures are followed, your appeal will be subject to dismissal (43 CFR 4.402). Be certain that all communications are identi?ed by serial number of the case being appealed. NOTE: A document is not ?led until it is actually received in the proper of?ce (43 CFR See 43 CFR Part 4, Subpart for general rules relating to procedures and practice involving appeals. . (Continued on page 2) 43 CFR SUBPART 182 INFORMATION Sec. 1321.10 Where are BLM of?ces located? In addition to the Headquarters Of?ce in Washington, DC. and seven national level support and service centers, BLM operates 12 State Of?ces each having several subsidiary of?ces called Field Of?ces. The addresses of the State Of?ces can be found in the most recent edition of 43 CFR 1821.10. The State Of?ce geographical areas of jurisdiction are as follows: STATE OFFICES AND AREAS OF JURISDICTION: Alaska State Of?ce Alaska Arizona State Of?ce Arizona California State Of?ce California Colorado State Of?ce Colorado Eastern States Of?ce Arkansas, Iowa, Louisiana, Minnesota, Missouri and, ail States east of the Mississippi River Idaho State Of?ce Idaho Montana State Of?ce Montana, North Dakota and South Dakota Nevada State Of?ce Nevada New Mexico State Of?ce New Mexico, Kansas, Oklahoma and Texas Oregon State Of?ce -- Oregon and Washington Utah State Of?ce Utah Wyoming State Of?ce Wyoming and Nebraska A list of the names, addresses, and geographical areas of jurisdiction of all Field Of?ces of the Bureau of Land Management can be obtained at the above addresses or any of?ce of the Bureau of Land Management, including the Washington Of?ce, Bureau of Land Management, 1849 Street, NW, Washington, DC 20240. - (Form 1842-1, September 2006)