Uncategorized

THE STATE OF WYOMING has been informed by the federal government—once again—that some of its policies related to the pumping and dumping of coal-bed methane water violate the Clean Water Act.

In a letter dated Nov. 13, 2009, the Environmental Protection Agency instructed the Wyoming Department of Environmental Quality that it cannot modify drainage-wide water discharge permits in the Pumpkin Creek and Willow Creek watersheds, as the DEQ has proposed.

The proposed changes for these two particular drainages would contravene federal law because they would fail to protect native grasses in the area, according to the EPA.

These are the only so-called general watershed permits to have been issued by the DEQ. As opposed to traditional permits for individual sources of pollution, the DEQ has attempted to streamline the permitting process by creating a general permit for one type of pollution throughout an entire drainage.

“The two drainages in question flow into the Powder River, and the Wyoming Outdoor Council has argued from the start that these drainage-wide coal-bed methane permits violate the law,” said Steve Jones, watershed protection program attorney with the Council.

The Council believes the traditional approach of issuing individual permits ensures greater public participation and more careful scrutiny, Jones said.

OUTDOOR COUNCIL APPEALED THE PERMITS

The two permits in question were issued in September of 2006, but were appealed by the Wyoming Outdoor Council. After a hearing on these permits in April of 2008, the state’s Environmental Quality Council substantially modified them to better protect for the growth and production of natives grasses.

Native grasses are important to ranchers in that their cattle or other livestock utilize such grasses as a primary food source and thus the ability of ranchers’ cattle to grow and thrive is directly connected to the health of native grasses in riparian areas along the streams and creeks of the Powder River Basin.

In August of 2009, one year after the EQC imposed substantially stricter requirements on the watershed general permits, the DEQ moved to eliminate the restrictions through proposed major modifications to them. These permit revisions would have eliminated protections for native grasses because they would have allowed higher levels of salty water to be dumped into each drainage.

The DEQ attempted to make the drainage-wide water dumping acceptable by employing the dubious approach of using “irrigation waivers,” where landowners in each drainage had signed statements indicating that they waived any concerns they might have had for protecting native grasses within their respective property.

The EPA said the DEQ cannot accept such waivers, because it plainly violates the federal Clean Water Act.

“Basically, the EPA told the DEQ that individual landowners cannot waive the requirements of the Clean Water Act,” Jones said. “No individual has the power to waive such statutory requirements.”

The Wyoming Outdoor Council made a similar argument against the waivers in September.

LINKS:

* For a copy of the EPA’s November 13 letter to the Wyoming DEQ, click here.
* For a copy of the Wyoming Outdoor Council’s comments on the proposed 2009 irrigation waiver in the Pumpkin Creek area, click here.
* And for the comments on the proposed waiver in the Willow Creek area click here.

Media Contact: Steve Jones, Wyoming Outdoor Council, 307-332-7031 x12; steve@wyomingoutdoorcouncil.org.

Photo by Scott Copeland

THE FEDERAL ENVIRONMENTAL PROTECTION AGENCY has significant concerns about Wyoming’s proposed plan to reduce haze generated by polluters such as coal-fired power plants and trona mining operations.

The EPA sent a letter to Wyoming’s Department of Environmental Quality at the end of October, which indicates that Wyoming’s latest revision of a federally mandated air pollution plan has failed to honor specific requests previously made by the EPA.

Click here to read a copy of the letter.

Callie A. Videtich, the EPA’s regional director for its air program, was the signatory of the EPA’s most recent letter to the Cowboy State.

“It appears that the state did not address many of the concerns we detailed in [previous] letters,” Videtich wrote in the October correspondence.

And Wyoming’s current approach to air quality modeling is also likely deficient, according to Videtich, and could require a do-over.

Wyoming’s latest proposed plan represents an attempt to fulfill the requirements of a decade-old EPA rule intended to reduce haze over Class I areas, which are special landscapes throughout the United States.

“We believe the EPA’s most recent correspondence indicates that unless the DEQ makes substantive changes to its plan, it’s possible the EPA will reject it,” said Bruce Pendery, program director for the Wyoming Outdoor Council.

If the EPA were to reject Wyoming’s plan, the federal government could impose its own haze control plan—a possibility the DEQ likely wants to avoid because it would mean a loss of control over the decision-making process related to how the reductions would be accomplished.

REGIONAL HAZE RULE

Wyoming, like all states, is required by the EPA’s 1999 regional haze rule to create a plan to manage industrial air pollutants—such as sulfur dioxide and oxides of nitrogen—that cause haze and can potentially ruin views over some of the nation’s most prized landscapes.

The pollutants that this rule is meant to address can also be dangerous to people exposed to them.

In Wyoming, much of the haze-producing air pollution comes from the state’s five coal-fired power plants and its three major trona mines. One of the most effective ways for the state to make the required reductions will be to oblige the power plants and mines to use what’s called the best available retrofit technology, or BART, to clean up their emissions.

“The state has a big job to do implementing BART and managing these pollutants,” Pendery said. “But it is critical that we achieve significant, maximum pollution control to protect these Class I areas, because they are some of our premier, treasured landscapes that people flock to Wyoming to see.”

REDUCING HAZE IN WYOMING, SOME BACKGROUND

To meet the requirements of the regional haze rule, the Wyoming DEQ has been working toward compliance for several years.

In 2003 the State adopted provisions related to the control of sulfur dioxide from large industrial sources. Sulfur dioxide is a key component of haze. More recently the state has been moving toward putting in place “best available retrofit technology,” or BART, requirements to control oxides of nitrogen and particulate matter emissions. Eight sources of air pollution in Wyoming have been determined to be “subject to BART,” because they cause or contribute to visibility impairment in at least one Class I area.

These eight sources are the Naughton, Jim Bridger, Laramie River, Dave Johnston and Wyodak coal-fired power plants, and the Granger, Westvaco, and Green River Works trona operations.

The EPA has offered many comments on the state’s attempts to comply with the regional haze rule so far, and these comments have generally been critical of Wyoming’s efforts.

Among other things, the EPA has said the proposed BART permitting conditions for coal-fired power plant have been deficient because Wyoming did not provide for sufficient controls of nitrogen oxides and particulate matter.

In its comments on the state’s draft implementation plan, the EPA expressed concerns about Wyoming’s long-term strategy to reach natural visibility conditions, saying several of the state’s plans to postpone pollution control measures—or not to ensure their federal enforceability—were unacceptable.

“Since the EPA will ultimately have to approve the state’s plan, it may well get the last word on these issues,” Pendery said.

THE OUTDOOR COUNCIL’S ENGAGEMENT

In addition to the EPA’s comments on the state’s compliance efforts toward the regional haze rule, the Outdoor Council has also participated in the process, submitting comments on the BART proposals, and on the state’s draft implementation plan.

The Council’s principle concern with the BART proposals has been that the DEQ has not proposed requiring selective catalytic reduction for control of nitrogen oxides (NOX).

Selective catalytic reduction would achieve much greater levels of pollution control, and the EPA supported this view in its comments.

“The consequence of the state not putting in place more stringent requirements now is that more stringent requirements will have to be put in place in the future,” Pendery said. “And we doubt that postponing needed decisions is going to make achieving the Clean Air Act’s air quality goals for Class I areas any easier.”

The Air Quality Division seems to be taking a minimalist approach to reducing regional haze, he said, which is inadequate because Wyoming residents value such things as being able to see the Wind River Range from Rock Springs.

“Clean, clear air and expansive views, are qualities of Wyoming that are universally cherished by its residents,” Pendery said.

LINKS:

* You can read the Wyoming Outdoor Council’s and coalition partner’s comments on the BART permit proposals by clicking here and the Council’s comments on the proposed state implementation plan by clicking here.

* The Council’s comments on the trona plant BART permit proposals can be found at the regional haze section of our website here.

* You can get information on Wyoming’s regional haze rule compliance efforts at http:// deq.state.wy.us/aqd/regionalhaze.asp.

Media Contact: Bruce Pendery, Wyoming Outdoor Council, 435-752-2111, bruce@wyomingoutdoorcouncil.org

Photo by Jeff Vanuga

THE LOOMING THREAT that the greater sage-grouse might be listed as an endangered species spurred Wyoming to adopt a new approach to protect the celebrated bird.

As a result, the Cowboy State has emerged as the regional leader in re-thinking sage-grouse policies, focusing its conservation efforts on sage-grouse “core” habitat areas.

Following Wyoming’s lead, Montana’s state game agency recently announced its own “core area” strategy.

There is some disagreement amongst Wyoming’s conservation community about the value of this core area approach, said Sophie Osborn, wildlife biologist with the Wyoming Outdoor Council.

But Osborn said while the approach has some limitations, she believes Wyoming’s attempt to conserve core sage-grouse habitat might be the West’s best bet for maintaining viable sage-grouse populations, and for keeping the bird off the endangered species list.

Click here for a map of Wyoming’s core sage-grouse habitat areas.

If properly implemented, Wyoming’s approach could offer other states a model for finding a balance between energy development and the protection of this vulnerable species, Osborn said.

A MAJORITY OF THE NATION’S GREATER SAGE-GROUSE NOW LIVE IN WYOMING

Sage-grouse numbers have been in decline throughout the West for decades, and today 54 percent of the remaining greater sage-grouse in the United States live in Wyoming.

The U.S. Fish and Wildlife Service’s decision whether to list the sage-grouse as an endangered species will be swayed, at least in part, by the strength and efficacy of Wyoming’s policies toward the bird.

One criterion for the federal government’s ultimate listing decision, Osborn said, is the answer to the following question. Are there regulatory mechanisms in place that will adequately protect the species?

“That’s why Wyoming has worked so hard to develop this core sage-grouse concept,” Osborn said. “To make sure there is an existing, adequate regulatory mechanism in place.”

Wyoming’s actions will likely play a key role in determining whether overall sage-grouse populations begin to stabilize or continue to decline.

“State and federal agencies, conservation groups, the energy industry—they all understand that what we do in Wyoming really matters,” Osborn said. “It might seem as if we’re obsessing over this bird, but Wyoming has to get this right, and we all know it.”

In addition to the ecological motivations for preserving sage-grouse “core” areas, there are also economic incentives for keeping these grouse populations healthy.

If the sage-grouse were listed as an endangered species, energy extraction and other types of development could be subjected to more stringent regulations and possibly curtailed throughout the bird’s range, and not only in core habitat areas. In a state that relies heavily on revenues from mineral extraction operations, such a possibility gets lawmakers’ attention.

Sometimes just the threat of an endangered species listing can be the impetus for better wildlife management and development policies, Osborn said.

WIND DEVELOPERS LEFT OUT IN THE COLD?

The burgeoning wind energy industry has had a particularly difficult time adapting to Wyoming’s sage-grouse core area conservation strategy.

As part of this strategy, Wyoming will not permit the development of wind farms in core areas until wind developers can show that their activities will not have a negative impact on sage-grouse populations.

In a letter sent to Secretary of the Interior Ken Salazar in July 2009, wind industry representatives warned that such a requirement would abruptly halt wind energy development in Wyoming’s core areas and have “deleterious effects on renewable energy development across the Western United States.”

The Wyoming governor’s office maintains, however, that 86 percent of the state’s “economically viable wind areas” are outside of sage-grouse core areas, and so the state still has ample opportunity to develop wind, without placing its, and the West’s, sage-grouse populations at risk.

Some developers—frustrated by their inability to build wind farms in core areas until the effect of turbines on grouse is studied—feel that the wind industry was left out of the process when sage-grouse core areas were developed.

But Bob Budd, head of the Governor’s sage-grouse task force, said wind energy development had not yet emerged as a prominent issue when the team developed the core area strategy. The push for widespread wind development is a relatively recent phenomenon in Wyoming.

A representative of the wind energy industry has since joined the Governor’s sage-grouse team.

Horizon Wind Energy’s Simpson Ridge Project near Medicine Bow was an early casualty of the state’s rigorous stance on protecting core areas, even after the company committed to doing research to document the impacts of turbines on grouse.

However, bird advocates and energy watchdog groups, including the Wyoming Outdoor Council, argue that Horizon knew from the start about the important sage-grouse breeding areas near the company’s proposed wind farm, and the company’s promise to spearhead a research study was simply an attempt to justify sacrificing these areas.

“If, as we suspect, turbines cause grouse declines and displacement, we risk losing our healthiest grouse populations by conducting these studies in core areas,” Osborn said. “Studies should be conducted in non-core areas, where we have fewer grouse to lose; otherwise, we increase the risk of an endangered species listing for the grouse.”

Osborn’s comments echo those of the U.S. Fish and Wildlife Service, which stated in July 2009 that building wind farms in core areas, even for research purposes, “would negate the usefulness of the core area concept,” and undermine a key regulatory mechanism designed by Wyoming to protect its grouse populations.

Soon after the Fish and Wildlife Service issued its statement in support of making core areas off-limits to wind development, Horizon withdrew its construction and research proposal, because the project would have enveloped, and threatened, 15 active sage-grouse breeding grounds, or leks—where these chicken-like birds perform their distinctive courtship displays and choose mates.

Although the impacts of oil and gas development on sage-grouse are fairly well understood, scientists have yet to examine the effect of wind turbines on grouse. Until these impacts are known, agencies must rely on indirect, but relevant, scientific information that suggests that grouse will be displaced by wind turbines.

INTRODUCING TALL STRUCTURES INTO A SHORT ECOSYSTEM

Having evolved in open, treeless habitat—in what some refer to as the “sagebrush sea”—sage-grouse show a strong aversion to vertical structures. Tall objects do not occur in the bird’s natural surroundings, and they can be used as perches by raptors that prey on grouse.

Sage-grouse populations have declined where trees, transmission lines, and oil and gas development have encroached on their habitat, Osborn said. In addition, grouse have been eliminated from habitats fragmented by roads and other forms of development.

Given these facts—coupled with the threat that sage-grouse could be listed as an endangered species without a robust state-level regulatory mechanism—the wind industry will have to focus for now on developing wind farms in areas with few or no sage-grouse, such as in the eastern portion of the state, Osborn said.

Many people in Wyoming and beyond view sage-grouse core area protection as the best hope for safeguarding a declining species, and the best chance to avoid an endangered species listing that would complicate not just wind energy, but all types of energy development in the West.

ON THE HEELS OF a recent independent report that called a proposed Wyoming water policy “scientifically indefensible,” the federal government on Tuesday voiced its own opposition to the policy—suggesting that if the rules were officially adopted by the state, Wyoming would not be in compliance with the federal Clean Water Act.

The proposed rules in question have to do with how the Cowboy State regulates groundwater that is pumped up from coal seams and dumped on the surface during coal-bed methane production. Most of Wyoming’s coal-bed methane operations are in the state’s Powder River Basin, east of the Big Horn Mountains.

Although Wyoming’s Department of Environmental Quality scrapped the proposed rules last week—following a damning independent scientific report that was commissioned by the state—the provisions outlined in the proposal still constitute the DEQ’s de facto policy for regulating the water that is produced during coal-bed methane operations.

Water pumped up from coal seams is often salty and otherwise impure, and can damage native grasses that support Wyoming wildlife and can ruin a variety of habitats such as seasonal wetlands and streams.

In comments submitted on September 29 to Wyoming’s Environmental Quality Council—which is the state’s environmental rulemaking body—the EPA stated:

“… several of the provisions do not appear to be consistent with the (Clean Water Act)… and the [EPA] would recommend the (Assistant Regional Administrator) disapprove those (Water Quality Standards). Accordingly, our recommendation is that (the rules) should not be adopted as proposed. Even if retained as a policy, EPA has significant concerns regarding whether its implementation is consistent with Wyoming’s approved (Water Quality Standards).”

To read the full document submitted by the EPA on September 29, click here.

The Wyoming Outdoor Council has long argued these proposed rules are inadequate, and that the DEQ should do more to regulate not only the quality of the water produced in coal-bed methane operations, but the quantity, as well.

Wyoming Gov. Dave Freudenthal has also long had concerns about the proposed rules.

Media Contact: Steve Jones, Wyoming Outdoor Council, 307-332-7031 x12; steve@wyomingoutdoorcouncil.org.

A FEDERAL LAND MANAGEMENT PLAN for southwestern Wyoming — which most observers assumed would be completed during the final days of President George W. Bush’s administration — has yet to be published.

And correspondence sent to the Wyoming Outdoor Council this week confirms the Bureau of Land Management’s Kemmerer resource management plan is still in play, and could still be modified before the agency issues its final record of decision.

The Outdoor Council believes the Kemmerer plan, as drafted in 2008, has some serious inadequacies — most notably its failure to follow a precedent of balance set by the recently revised Pinedale resource plan revision.

Bureau of Land Management Director Robert V. Abbey wrote to the Wyoming Outdoor Council, in a letter received on Tuesday, that the BLM’s Kemmerer field office is still finalizing its responses to protests of the 2008 draft plan, and will be working “with the BLM Washington Office, and the Department [of the Interior] prior to signing” the final plan.

In contrast to the proposed Kemmerer plan, the new Pinedale plan, finalized in 2008, designates nearly 50 percent of the BLM lands in the Pinedale field office as unavailable for future oil and gas leasing, in order to protect such things as pronghorn, elk and mule deer migration corridors, critical wildlife habitat and recreation opportunities.

But the latest Kemmerer plan would make less than 15 percent of its public lands off-limits.

The Kemmerer area, similar to the Pinedale region, contains crucial wildlife habitat and critical migration corridors that should be afforded some protection, the Council believes.

The Outdoor Council is asking land managers to work to achieve a greater balance between open spaces and industrial energy development in western Wyoming.

For a copy of Robert V. Abbey’s recent letter to the Wyoming Outdoor Council click here.

For the Wyoming Outdoor Council’s September 29 response to Abbey’s letter, click here.

For the Wyoming Outdoor Council’s original letter to Secretary of the Interior Ken Salazar, click here.

Media Contact: Bruce Pendery, Wyoming Outdoor Council, 435-752-2111, bruce@wyomingoutdoorcouncil.org