New BLM planning process for managing sage grouse may offer relief to Utah energy producers

The U.S. Bureau of Land Management (BLM) has released for public comment, draft planning documents that may relieve Utah energy producers from regulatory restrictions imposed to protect the greater sage grouse by the previous administration. The BLM’s preferred alternative for amending 14 resource management plans (RMPs) in Utah will release 448,600 acres of land — mostly in oil-and-gas rich Uintah County — from restrictive federal management directives, create additional flexibility for project developers in addressing impacts on the species and align federal actions with Utah’s successful sage grouse management program.

The sage grouse, a chicken-sized bird that inhabits sagebrush steppe ecosystems in the inland West, has been the subject of years of federal litigation brought by environmental organizations contesting the adequacy of efforts to reverse declines in grouse habitat and populations. There is no question that sage grouse populations have been declining across the West for years, but little agreement otherwise exists on primary causes for the decline. Predation, climate change, destruction of sagebrush habitat by wildfire, oil and gas development and livestock grazing have all been hotly debated, with much energy spent on legal efforts to either place federal public lands off-limits to significant development in the name of the grouse or to open those lands for greater use.

In 2010, the U.S. Fish and Wildlife Service made a preliminary determination that threats to the greater sage grouse were sufficiently severe that listing of the species as threatened under the federal Endangered Species Act (ESA) was warranted. A listing under the ESA would impose significant federal regulatory controls on all development in grouse habitat — over 134,000 square miles spread across the interior Western states. Faced with a regulatory and economic train wreck, multiple Western governors convened state-level task forces to improve state management of sage grouse, in hopes of arresting population declines and improving habitat without an ESA listing. At the same time, BLM and the U.S. Forest Service undertook revisions of their governing land use plans to provide protections for the sage grouse on federal public lands.

“The State of Utah’s Conservation Plan for Greater Sage Grouse in Utah,” first released in 2013 and revised on multiple occasions since that time, relies on the knowledge of state wildlife officials and local sage grouse working groups to identify the best-quality occupied habitat in the state, identify opportunity zones for improving habitat and populations, and create a flexible system for mitigating necessary disturbances to grouse habitat. State-identified top-tier habitat — titled Sage Grouse Management Areas or SGMAs — are estimated to contain over 96 percent of the sage grouse populations in the state. Utah’s Division of Wildlife Resources (UDWR) has managed an aggressive program to improve grouse habitat through vegetation treatment, particularly removal of pinyon juniper woodlands that have encroached on sage habitats. Finally, Utah has created a state-level mitigation bank that allows some disturbance of habitat in SGMAs, while creating or improving other habitat at a four-to-one ratio.

The federal land agencies initially took a different approach from Utah. Rather than identifying a single class of sage grouse habitat, BLM identified a top tier of habitat called Sagebrush Focal Areas (SFAs), a middle tier of Priority Habitat Management Areas (PHMAs), and a lower tier of habitat called General Habitat Management Areas (GHMAs). Significant limitations on surface disturbance, mineral leasing and construction of new areas were imposed on over 2,500,000 acres in the three categories in Utah. When the federal plans incorporating these concepts were released in 2015, the State of Utah identified a number of significant legal and factual flaws in the plans. These included the fact that the almost 450,000 acres of federal GHMAs contained almost no sage grouse, that Utah was treated more harshly in terms of management restrictions than directly adjacent population areas in Wyoming, and that federal mapping of habitat areas was based on outdated and inaccurate data.

Utah filed litigation challenging the federal sage grouse plans in late 2015 in federal district court in Salt Lake City. Other states and industry groups filed similar challenges in other courts. In the aftermath of the 2016 federal election and a federal court decision in Nevada invalidating a portion of BLM’s plan in that state, BLM changed course.

On March 29, 2017, Secretary of the Interior Ryan Zinke issued Secretarial Order 3349, titled “American Energy Independence.” In that order, Zinke directed department staff to identify obstacles to responsible energy development on federal public lands. The department’s review identified certain portions of the BLM’s sage grouse plan amendments as presenting unnecessary obstacles to energy development, and in particular echoed some of Utah’s complaints about the prior federal plans. On June 7, 2017, Zinke issued Secretarial Order 3353 directing better federal coordination with state sage grouse conservation efforts and on Oct. 5, 2017, the BLM commenced formal amendment of the 2015 plans.

The preliminary result of this new planning effort in Utah — a Draft Resource Management Plan Amendment and Environmental Impact Statement — was released for public comment on May 4. The draft studies two alternatives: leaving the 2015 BLM plans in place, and a preferred “Management Alignment Alternative” that seeks to coordinate BLM’s plans and efforts and those of the state of Utah as closely as possible.

Notably, the preferred alternative would condense SFAs into PHMAs, which would generally coincide with SGMAs. The federal category of GHMAs would be done away with in its entirety, since BLM recognizes that although GHMAs are large in size, few sage grouse are located in these areas (less than 4 percent of state sage grouse populations). Other common-sense changes include taking into account that not all lands in PHMAs are actual habitat; allowing site-specific modifications to development restrictions based on on-the-ground conditions; and relying, to the extent possible, on state wildlife managers’ data and expertise.

For Utah’s energy industry, the elimination of the GHMA category will, in itself, have benefits. Of the 448,600 acres of GHMA in Utah, 245,000 acres are located in energy-rich Uintah County, with more than half of the rest in Carbon County. In total, 188,000 acres of these lands are currently “held by production,” with active oil and gas activity ongoing. Given the minimal proportion of actual grouse habitat in these areas, removal of a substantial layer of regulatory control is likely to be welcomed by the industry.

These changes are not final. The deadline for comments on the BLM’s new draft plan amendment and EIS is early August. Environmental groups have already filed litigation in Idaho and Montana to halt BLM’s plan amendment process and litigation seems likely in Utah once the new plans are finalized. The greater sage grouse seems likely to be a point of conflict in public lands management for more years to come.

John W. Andrews is an attorney with the Salt Lake City office of Snell & Wilmer. He focuses his practice in environmental and natural resources and has more than 30 years of practice experience in public lands, real estate, minerals and Native American law issues.