environmental protection in the federal coal leasing program

Environmental Protection in the FederalCoal Leasing Program

May 1984

NTIS order #PB84-222413

.

Recommended Citation:Environmental Protection in the Federal Coal Leasing Program (Washington, D. C.: U.S.Congress, Office of Technology Assessment, OTA-E-237, May 1984).

Library of Congress Catalog Card Number 84-601068

For sale by the Superintendent of DocumentsU.S. Government Printing Office, Washington, D.C. 20402

Foreword

This report responds to a request by the House and Senate Committees on Ap-propriations, as mandated in the Conference Committee Report on the Departmentof the Interior and Related Agencies Appropriations Bill for fiscal year 1984, to assessthe ability of the Federal coal leasing program to ensure the development of leasesin an environmentally compatible manner. This study builds on earlier OTA reports,An Assessment of the Development and Production Potential of Federal Coal Leasesand The Direct Use of Coal, and will contribute to future work on surface minereclamation.

The assessment addresses the recent controversy surrounding the implementationof the environmental protection aspects of the Federal coal leasing program. It discussesthe adequacy of the regulatory provisions of the program to ensure the environmentalcompatibility of Federal lease tracts, including the 1982 changes in program policy andregulations. The Bureau of Land Management’s implementation of the leasing programlegislation and regulations is evaluated, with emphasis on the adequacy of data andanalyses to support land use planning and environmental impact assessment. The reportassesses the characteristics of tracts proposed for leasing since 1979, to determinewhether any of those tracts will be particularly difficult to develop under current en-vironmental laws and regulations. It also assesses the potential for cumulative environ-mental impacts upon the development of several lease tracts in one area. Finally, thereport presents policy options Congress could consider that seek to restore predictabilityand stability to the leasing program.

In the course of this assessment, OTA drew on the expertise of many individualsand organizations. In particular, we are grateful for the generous assistance of theworkshop participants and the project’s contractors, who prepared background analyses.We would also like to acknowledge the efforts of the numerous reviewers who gavetheir time to ensure the accuracy and comprehensiveness of this report. Finally, weare especially grateful to the Bureau of Land Management and its field personnel, withoutwhose cheerful and candid cooperation this assessment would not have been possible.

Director

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Coal Leasing Workshop Participants

Michael Rieber, ChairmanUniversity of Arizona

David Alberswerth Leslie LehmannNational Wildlife Federation Northern Energy Resource Co.

Daniel P. Baker Lorin NielsenConsolidation Coal Co. Utah Department of Natural Resources

Paige B. Beville Charles RechAnaconda Minerals Co. Meridian Land & Minerals Co.

Carol CondieNew Mexico Archaeological Council

Maggie FoxSierra Club Southwest

AlIan GarnaasAlexandria, Va.

Sheridan GlenArch Minerals Co.

Robert JacksonSunbelt Mining Co., Inc.

Dewitt JohnColorado Department of Natural Resources

August KellerNorth Dakota Energy Development

Impact Office

Charles RoybalNew Mexico Energy and Minerals

Department

Mel SchillingOffice of Surface Mining

Christopher SeglemColorado Westmoreland, Inc.

Pat SweeneyWestern Organization of Resource Councils

Tom WalkerBureau of Land Management

Geoff WebbFriends of the Earth

Mark WelshColorado Open Space Council

Laura King Warren WhiteNatural Resources Defense Council Wyoming State Planning Coordinator

NOTE: The workshop participants provided advice and comment throughout the assessment, but the members do notnecessarily approve, disapprove, or endorse this report, for which OTA assumes full responsibility.

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OTA Project Staff

Lionel S. Johns, Assistant Director, OTAEnergy, Materials, and International Security Division

Richard E. Rowberg, Energy and Materials Program Manager

Jenifer Robison, Project Director

John Bendall Joanne Seder

Administrative Staff

Lillian Quigg Edna Saunders

Contributors

Donald Crane AlIan Garnaas John Hardaway Brace Hayden

Dan Kimball Douglas Larson Robert Uram

Contractors

James Cannon Deborah Pederson

Charles Reith Robert Stoecker

Acknowledgments

OTA thanks the following people who provided information or reviewed part or all of this report or thebackground reports:

Mark Adkins, Getty Oil Co.Tom Altmeyer, Mining and Reclamation Council

of AmericaDon Ami, The Hopi TribeGalen Andersen, The Nokota Co.Bob Armstrong, Bureau of Land ManagementCarol Baca, New Mexico Energy and Minerals

DepartmentHugh Baker, Three Affiliated Tribes, Fort Berthold

ReservationDave Baldwin, Bureau of Indian AffairsFred Banta, Colorado Mined Land Reclamation

DivisionDez Barker, Utah Coal Operators’ AssociationEddie Bateson, Bureau of Land ManagementGary Beach, Wyoming Department of

Environmental QualityPaul Bederman, New Mexico Energy and

Minerals DepartmentRobert Bierer, Bureau of Land ManagementJames Binando, Bureau of Land ManagementJohn C. Bokich, Santa Fe Coal Corp.Ron Bolander, Bureau of Land ManagementPat Boles, Wyoming Department of

Environmental QualityDave Bray, Bureau of Land ManagementRuss Brown, Northern Plains Resource CouncilH. L. Bryson, Shell Mining Co.Robert Burford, Bureau of Land ManagementGeorge Byers, Anaconda Minerals Co.Jim Collins, Bureau of Land ManagementRoger Collins, U.S. Fish and Wildlife ServiceHerb Conley, Bureau of Land ManagementGreg Conrad, American Mining CongressDavid M. Cover, Gulf Mineral ResourcesJason Cuch, Uintah-Ouray TribeChris Cull, Western Energy Co.William S. Curtiss, Sierra Club Legal Defense

FundEdwin G. Dahle, Northern Cheyenne TribeGene Daniel, Bureau of Land ManagementWilliam Darmitzel, New Mexico Mining

AssociationGene Day, Bureau of Land ManagementJeffrey H. Desautels, Anaconda Minerals Co.Roger Dewey, Rocky Mountain Energy Co.Chuck Dietrich, American Mining CongressAl Dole, U.S. Fish and Wildlife ServiceDavid Doyle, National Wildlife FederationJohn Dwyer, North Dakota Lignite Council

Jim Edwards, Bureau of Land ManagementSteve Elliot, Billings, Mont.Lloyd Emmons, Bureau of Land ManagementEd Englerth, North Dakota Public Service

CommissionAlan Falenski, Consolidation Coal Co.Rodney Ford, Consolidation Coal Co.William Frey, Bureau of Land ManagementTim Gallagher, State of MontanaTom Galloway, Galloway & GreenbergMerle L. Garcia, Pueblo of AcomaJohn M. Garr, Coastal States Energy Co.Carl Gawell, National Wildlife Federation

Bob Giovanini, Bureau of Land ManagementGreg Goodenow, Bureau of Land ManagementEd Grandis, Environmental Policy InstituteKelly Green, National Wildlife FederationMichael R. Grende, Western Energy Co.Steven Griles, Department of the Interior

Jim Gruber, Bureau of Land ManagementJohn R. Hardin, Anaconda Minerals Co.J. Brett Harvey, Kaiser Steel Corp.Garth Heaton, U.S. Forest ServiceTom Hoffman, Consolidation Coal. Co.

Rick Holbrook, Consolidation Coal CO .

Norman Hollow, Fort Peck Assiniboine and SiouxTribes

Jhon Huff, Powder River Basin Resource CouncilLiz Hummer, Bureau of Land ManagementDennis Hunter, Utah International Inc.Rick Inglis, Bureau of Land ManagementRussel Jentgen, Bureau of Land ManagementCarolyn Johnson, Natural Resources Defense

CouncilTheresa Keaveny, Dakota Resource CouncilEllis Knows Gun, Crow Tribe of IndiansRick Lawton, Wyoming Department of

Environmental QualityRobert Lawton, Bureau of Land ManagementDon Leonard, Western Regional CouncilR. E. Lommer, North Dakota Lands DepartmentMimi Lopez, Committee on CoalJim Luptak, North Dakota Public Service

CommissionW. W. Lyons, Northern Energy Resource Co.Margie MacDonald, Northern Plains Resource

CouncilJames Maddy, Western Governors AssociationJack L. Mahaffey, Shell Mining Co.Larry Marks, Bureau of Land ManagementDan Martin, Bureau of Land ManagementMike McClellan, Bureau of Land ManagementCarol McDonald, Bureau of Land ManagementStan McKee, Bureau of Land ManagementDon K. McSparran, Anaconda Minerals Co.Mat Millenbach, Bureau of Land Management

Jackie Miller, Fort Peck Assiniboine and Sioux

Lary D. Milner, Atlantic Richfield Co.

Alison Monroe, Southwest Research andInformation Center

James Monroe, Bureau of Land ManagementDon Moseley, Utah International Inc.Diane Nielson, Utah Division of Oil, Gas and

MiningMax Nielson, Bureau of Land ManagementPeter Neilson, The Coteau Properties Co.Joe O’Connor, U.S. Geological SurveyAndrew Palmer, Environmental Policy InstituteJames Paraskeva, Utah Department of AgricultureJoe Patti, Bureau of Land ManagementVincente Pedro, Pueblo of LagunaDean Peterson, The North American Coal Corp.Mike Poling, American Mining CongressDave Preston, Rocky Mountain Energy Co.

Kent Redding, Consolidation Coal Co.Warner K. Reeser, Jr., Council of Energy

Resource TribesLeo Reinbold, North Dakota Public Service

CommissionWalt Rewinsky, Bureau of Land ManagementKannon Richards, Bureau of Land ManagementLeonard Robbins, The Navajo TribeWilliam J. Robinson, Western Energy Co.Allen Rowland, Northern Cheyenne TribeDuffy Ruimerman, New Mexico Energy and

Minerals DepartmentRich Schils, Three Affiliated Tribes, Fort Berthold

preservationJames Shaw, Rocky Mountain Energy Co.Karen Sheldon, Sierra Club Legal Defense FundDavid Shelton, Colorado Mined Land

Reclamation DivisionLt. Col. William Sherman, U.S. Air ForcePhil Shimer, Western Governors AssociationJerome H. Simonds, Washington, D.C.Marc Slonim, Ziontz, Pirtle, Morisset, Ernstoff &

ChestnutJohn Smillie, Northern Plains Resource CouncilA. L. Smith, Santa Fe Coal Corp.Ken Smith, Bureau of Land ManagementReed L. Smith, Bureau of Land ManagementRonald J. Solimon, Pueblo of LagunaDrex Spaulding, Getty Oil Co.Doug Stern, Bureau of Land ManagementDonald Stewart, Crow Tribe of IndiansBruce Stockton, New Mexico Energy and

Minerals DepartmentWilliam Sullivan, Northern Cheyenne TribeMargie Taylor, Meridian Land & Minerals Co.Steve Tessman, Wyoming Department of

Environmental QualityJohn Tilton, Chaco Energy Co.J. S. Tixier, U.S. Forest ServiceCelia Tsabetsaye, Zuni PuebloHarold Tso, The Navajo TribeMajor Michael van Zandt, U.S. Air ForceThurman Velarde, Jicarilla ApacheLaurie Walsh, Santa Fe IndustriesEdward W. Ware, Ill, Rocky Mountain Energy

co.Bruce H. Watzman, National Coal AssociationRobert Webb, Bureau of Land ManagementMartin White, Western Regional CouncilJ. W. Whitney, Bureau of Land ManagementDon Whyde, Bureau of Land ManagementJeff Williams, Utah Energy OfficeKenneth Williams, Western Energy Co.Chuck Willkie, Bureau of Land ManagementRichard Wilson, Bureau of Land ManagementPhillip Wolf, AMOCO Minerals Co.D. Floyd Wopsock, Ute Indian TribeBrooks Yeager, Sierra ClubPeterson Zah, The Navajo TribeRichard Zander, Bureau of Land ManagementMary Zuschlag, Bureau of Land Management

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Contents

Chapter Page

Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Chapter 1 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2. Findings and Policy Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3. The Federal Coal Management Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .The Coal Leasing Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Land Use Planning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Activity Planning and Lease Sales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Post-Leasing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Preference Right Lease Applications. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Environmental Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Chapter 3 References . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4. Planning and Environmental Assessment in the Federal Coal Leasing Program . . . .Expectations From the Leasing Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Program Stability and Predictability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Program Administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Program Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Public Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Regional Leasing Rates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Regional Leasing Levels . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Lease Sale Schedules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .The Environmental Implications of Leasing Rates . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Data and Analysis , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .A Tiered Process . . . . . . . . . . . . . . . . ...,.., . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Sources of Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Adequacy of Data and Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Policy Implications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Unsuitability Criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Application of Unsuitability Criteria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Possibilities for Expansion of the Unsuitability Criteria . . . . . . . . . . . . . . . . . . . . . . . .

Mitigation Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .The Role of Mitigation Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..., . . . . .Origins of Mitigation Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Reasons for and Types of Mitigation Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Summary. .,... . . . . . . . . . . .1....... ; . . . . . . . . . . . . . . .....................104Deferral of Decisionmaking . . . . . . . . . . . . . . . . . . . . . . .........................105Regional Coal Teams . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..........110

Actions by Rats . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ................112RCT Task Groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........112Role of BLM Within the RCT . . . . . . . . . . . . . . . . . . . . . .......................113The RCT as a Forum for Public Participation. . . . . . . . . . . . . . . . . . . . . . . . ........113

Public Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............114Public Understanding of the Leasing Process . . . . . . . . . . . . . . . . . . . . . . . . . . ......115

Environmental lssues of lndian Tribes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........117General Environmental Issues and Impacts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...118Tribe-Specific Environmental Issues/Impacts. . . . .......................,.....119

Leasing on Split Estate and Checkerboard Lands . .............................124Coal Exchanges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........130

Types of Exchanges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .....................131Major Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

Chapter 4 References . . . . . . . . . . . . . . . . . . . . . . . . . ............................136

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Appendix A: Environmental Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .139

Appendix B: Formulas for Determining Regional Leasing Levels . . . . . . . . . . . ........146

Appendix C: Acronyms and Glossary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .........148

Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153

TablesTable No. Page

I. Lease Sale Schedules.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42. Environmental Resources of Coal-Producing Regions . . . . . . . . . . . . . . . . . . . . . . . . . . 173. Archaeological and Cultural Resources of the Western Coal Regions . . . . . . . . . . . . . 184. Summary of Policy Goals and Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235.1979 Lease Sale Target Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 666. Lease Sale Schedules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 677. BLM Coal Leasing Workload Projections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 728. The Unsuitability Criteria. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 819. Areas Screened Out During Land Use Planning for Round I in Western

Powder River Basin Due to Unsuitability Criteria or Multiple-Use Tradeoffs . . . . . . . 8210. Fort Union Region Known Cultural Sites by Type.... . . . . . . . . . . . . . . . . . . . . . . . . . 8611. RCT Rankings for Lay Tract Rounds I and II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8912. Potential Reclamation Problems, Green River-Hams Fork Region, Round II . . . . . . . . 9213. Number of Tracts for Which Decisions on Unsuitability Criteria Were Deferred

Past Land Use Planning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............10714. Summary of Tract Rankings by Regional Coal Tema, Green River-Hams Fork,

Round I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11115. Ownership of Surface and Coal Resources in Five Western

Coal Management Regions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ................12816. Summary of Recent Exchange Proposals : . . . . . . . . . . . . . . .....................132

FiguresFigure No. Page

1. Five Western Coal Regions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62. Tiered Structure Concept of Data and Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123. Approximate Overlap Between Coal Leasing Regions and National Forests and

Other Special Federal Management Areas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144. Coal Tracts in Yampa River Basin, Showing Potential for Cumulative

Hydrological Impacts from Multiple Mine Development . . . . . . . . . . . . . . . . . . . . . . . 215. Example of Split Estate With Minority Federal Ownership . . . . . . . . . . . . . . . . . . . . . . 296. 1979 Coal Leasing Program. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 357. Current Cost Leasing Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 378. Relation Between Wilderness Study Areas and Coal Tracts in the

Northern Portion of the San Juan River Region . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 489. Dunn Center S.E. Tract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

10. 1979 Land Use Planning Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7011. Current Land Use Planning Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7112. Coal Tracts in the Manti-LaSal National Forest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7613. Burns Creek Tract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8014. Example of Application of Unsuitability Criteria #2 and #3 in

Western Powder River Basin Area . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8315. Relation Between Coal Tracts in San Juan Region and National Continental

Divide Scenic Trail and Study Corridor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8516. Stylized Diagram of an Alluvial Valley Floor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8717. Potential Buffer Zones Resulting from Application of the Wildlife

Unsuitability Criteria, Western Powder River Basin . . . . . . . . . . . . . . . . . . . . . . . . . . . 9518. Sketch Map Showing Approximate Locations of Indian Reservations

Relative to Coal Leasing Regions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...........11819. Example of Split Estate with Predominantly Private Surface and Federal Coal .. ....12520. Example of Checkerboard Ownership Pattern of Coal Resources . ...............126

Vlll

OverviewFollowing a decade of public debate, con-

sensus was reached in 1979 on a Federal coalleasing program considered adequate to ensureprotection of the environment upon develop-ment of leased tracts. The basic framework ofthat program-the legislative mandates and theconcept of a tiered structure of land use plan-ning, activity planning, and mine permitting—are still workable and capable of ensuring envi-ronmental protection. However, 1982 shifts inthe policy underlying the leasing program-asevidenced by changes in the implementing reg-ulations—have shaken that consensus. WhileOTA did not discover any “fatal flaws” thatwould absolutely preclude mining on recentlyleased tracts, we conclude that the recent pol-icy changes very likely have raised the cost anddifficulty of ensuring environmental compatibil-ity, and have increased the risk of adverse envi-ronmental impacts should those tracts be devel-oped. As a consequence, public confidence inthe environmental soundness of the Federalleasing program has decreased.

The planning processes during which tractsare continuously evaluated for their accept-ability for leasing have become too unpredict-able and unsystematic to assure compliancewith the environmental mandate. There are twobasic aspects of the recent policy and programchanges that contributed to this unpredictability:

First, the high leasing rates-the large quan-tity of coal to be offered for lease combined withinflexible lease sale schedules-of the past 3years taxed the resources of the Bureau of LandManagement (BLM) beyond the point wherethey could adequately assess the acceptabilityof the tracts proposed to be offered. Even with-out compressed planning and analysis schedules,BLM’s assessment capability already was taxedby field personnel rotations and turnovers, whichresulted in a loss of “institutional memory” andcontributed to inadequate data and analyses.Consequently, decisions about acceptability havebeen deferred past the land use and early activ-ity planning stages, where they are scheduled tobe made, to the Secretarial decision or mine per-mitting stage. Tracts have been carried forward

to the lease offering without adequate data andanalyses to make a fully informed decision abouttheir environmental compatibility. Decision de-ferrals also have led to overuse of lease stipula-tions (conditions placed on a lease) to addressuncertainties about impact mitigation require-ments. In some instances, tracts were removedprior to sale by mechanisms that were unrelatedto the leasing process. Further, the quality andquantity of data and analyses vary widely amongregions, among tracts within a region, and be-tween sales within a region.

Second, changes in program regulations in1982 reduced the effectiveness of the environ-mental protection measures that contributed tothe consensus on the 1979 Federal coal leasingprogram. The 1982 regulations no longerrequire-prior to the environmental impactstatement-the use of a “threshold” concept fordetermining whether potential cumulative im-pacts are severe enough to warrant droppingtracts from further consideration for leasing. Inaddition, most regulatory standards for the ade-quacy of data and analyses were eliminated, add-ing to the uncertainty about the acceptability ofproposed tracts. Preparation of Resource Man-agement Plans (required under the Federal LandPolicy and Management Act of 1976 andthe Fed-eral Coal Leasing Amendments Act of 1976) wasgiven lower priority when the 1984 deadline fortheir completion was eliminated, allowing indef-inite reliance on existing land use plans preparedunder earlier legislative mandates and updatedor amended to meet the 1976 requirements. Thelatter do not constitute the sort of “fresh-start”comprehensive land use planning envisioned inthe current statutory framework. Their continueduse increases the risk of adverse environmentalimpacts occurring if a leased tract is developed,and adds to the perception that BLM data andanalyses have been inadequate to support plan-ning and leasing decisions.

Program ImprovementsAn environmentally (and ecnomically) sound

leasing program is an important part of the Na-tion’s energy future and of public land manage-

ment policy. Unless reasonable public expecta-tions about “soundness” are satisfied, however,an effective and predictable Federal coal leas-ing program is not likely. The recent actionstaken by the Department of the Interior to reviewthe leasing program are a positive step towarddecreasing environmental risk and regaining thepublic consensus about the soundness of the pro-gram, and priority should be given to their rapidcompletion and implementation. However, thereare a number of other measures identified byOTA that also can help to ensure environmentalprotection and compliance with the existing stat-utory mandates, reduce the environmental riskof leasing decisions, maintain a predictable andstable leasing process, and restore public con-fidence in the environmental soundness of theleasing program.

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4.

x

Lower but steady leasing rates would makethe land area that has to be evaluated forcoal leasing in a given period of time moremanageable, reduce the number of tractsto be offered at one time and therefore theprobability that environmentally sensitivetracts would be leased, and allow all par-ticipants in leasing, including the industryand affected communities, to plan more ef-fectively for leasing activities.Decentralizing decisionmaking authorityon tracts and tonnages to be offered andon what schedule to the Regional CoalTeam or BLM State Office level, and reor-ganizing leasing regions to match Stateboundaries, would improve the sensitivityof leasing decisions to State and local needsand priorities.Improving the effectiveness of public par-ticipation through efforts to increase publicawareness and understanding of, and in-volvement in, the planning and leasingprocess also could improve the environ-mental soundness of, and public confi-dence in, the leasing program. In this con-text, it is very important to accommodatethe environmental and socioeconomicconcerns of special interest groups suchas Indian Tribes, States and communities,and farmers and ranchers when carryingout lease planning activities and eventualmine development.Completion of adequate Resource Man-agement Plans by BLM (and the Forest

—-

5.

6.

7.

Service) would ensure that comprehensiveareal land use planning is completed beforeactivity planning for a lease sale and is ade-quate to support informed decisions ontract acceptability for leasing. It also wouldhelp ensure that preliminary cumulative im-pact assessments are incorporated in gen-eral land use planning decisions. In thiscontext, it is important that BLM planningbe coordinated more closely with that ofthe Forest Service and other Federal agen-cies, and with State and local plans, to en-sure that coal leasing does not underminethe goals of other programs.The data and analyses that support plan-ning and leasing decisions also must beimproved before environmental risk can bereduced and public confidence restored.Compilation of a comprehensive data base,evaluation of the amount of data and anal-ysis needed at each decision stage, and ex-pansion of ways to use data and analysesfrom industry and other participants in leas-ing are some ways such an improvementcould occur without significant increasesin BLM resources. Continued research onmitigation and reclamation techniques andon the use of the threshold concept for cu-mulative impact analysis also would makeplanning more effective. In addition, great-er encouragement and incentives for expe-rienced, qualified personnel to remain inthe field could significantly improve thequality of data and analyses.Guidelines and standards for the ade-quacy of pm-sale data and analyses at allstages in the leasing process should be in-corporated in the program regulations. Reg-ulatory standards and guidelines would bemore predictable, would provide betterguidance to field personnel, and would bemore intelligible and accessible to otherparticipants in the leasing process than thecurrent guidelines, which reside primarilyin BLM internal memoranda.A workable threshold concept for esti-mating cumulative impacts should be de-veloped and included in the regulatory re-quirements for evaluating tract acceptabilityduring land-use planning and for tract rank-ing as well as in the environmental impactstatement.

8.

9.

10.

Policies and procedures for effectivelyusing lease exchanges to protect environ-mentally sensitive tracts should be estab-lished. It is necessary to clarify when suchexchanges, which can be a useful tool forreducing environmental risk, can be under-taken and how.Policies and procedures for leasing coallands where the Federal Government doesnot own or manage the surface (split estatelands) need to be evaluated to resolve theuncertainty about the effectiveness of landuse and activity planning and pre-leaseenvironmental protections on such lands,and to ensure that BLM procedures for splitestate areas balance public concerns andsurface owner interests adequately.Procedures for environmental assessmentof Preference Right Lease Applications

need to be evaluated to determine if theyprovide adequate environmental protec-tion and to ensure that they are consistentacross regions.

It is important that the Department of the in-terior give priority to establishing an effective,predictable, and stable leasing program that re-duces the environmental (and economic) risk ofleasing decisions, and that allows the industryto plan confidently for acquisition of coalreserves, the environmental community to beconfident that leasing decisions will be in ac-cord with legislative requirements, and, mostimportantly, the owners of the resources—thecitizens of the United States—to be confidentthat Federal lands are managed in the Nation’sbest interests.

xi

Chapter 1

Introduction.

Chapter 1

Introduction

Since 1920, the Department of the Interior(DOI) has administered a leasing program thatallows the private sector to develop federallyowned coal resources. A lease grants to the lesseethe exclusive right to obtain a mining permit for,and to mine coal on, the lease tract, subject tothe terms of the lease and permit and to appli-cable Federal and State laws. Historically, leaseshave been issued by two methods: competitively,to the highest bidder at a lease sale; and non-competitively, to prospectors who discoveredcommercial coal reserves and submitted an ap-plication for a “preference right” lease. Abouthalf of all pre-1976 leases were issued under eachmet hod.

In 1970, a Bureau of Land Management (BLM)study of the Federal coal leasing program foundthat, since 1955, the amount of coal under leasehad increased sharply while the amount of pro-duction from Federal Ieases had declined (3), In1971, in response to this study, BLM imposed aninformal moratorium on the issuance of newleases. The purpose of the moratorium, whichwas made formal by Secretarial order in 1973,was to provide time to reassess Federal coal leas-ing policies. Over the next several years, publicdebate focused on issues related to the size, tim-ing, and location of new leasing, and the rela-tion of coal development to environmental re-source values.

In 1973, environmental groups sued DOI overthe lack of a comprehensive regional environ-mental impact statement (E IS) for coal develop-ment in the Northern Great Plains. In 1976, theSupreme Court held in Sierra Club v. Kleppe that,once a Federal action is pending, the NationalEnvironmental Policy Act may require a com-prehensive impact statement covering severalrelated projects pending at the same time (6). I n1975, while this suit was under appeal and whileCongress was considering changes to mineralleasing legislation, DOI released the final pro-grammatic EIS for a new coal leasing system—the Energy Minerals Activity RecommendationSystem (EMARS) (1). The EMARS was an inte-

grated planning process for lease sales that in-volved annual nominations for coal leasing areasby the industry and the public. The program wasopposed by the Western governors and by agri-cultural and environmental interest groups. In1977, a Federal District Court found the program-matic EIS to be inadequate and enjoined DOIfrom implementing EMARS (except for leasesneeded to maintain production at an existingmine or to meet existing contracts for coal) untilthe requirements of the National EnvironmentalPolicy Act were met (4). This decision applied toboth competitive leases and preference rightlease applications (PRLAs).

Public concern and debate about the structureand management of the leasing program led tocongressional hearings and to approval of theFederal Coal Leasing Amendments Act of 1976(FCLAA; Public Law 94-377) and the Federal LandPolicy Management Act of 1976 (FLPMA; PublicLaw 94-579). In FCLAA, Congress substantiallyoverhauled provisions of the Mineral Leasing Actof 1920 as it applies to Federal coal lands, in-cluding repeal of the noncompetitive preferenceright leasing system, provisions for the consolida-tion of leases into “logical mining units” (LMUs),a 10-year limit for diligent development of leases,a requirement for continuous operation on eachlease, and preparation of a comprehensive landuse plan before coal lease sales. FCLAA also re-quires lessee’s to ensure compliance with theClean Air and Water Acts.

FLPMA provides the statutory framework forBLM’s overall land use planning. The act requiresBLM’s comprehensive land use planning programto maintain an up-to-date inventory of publiclands and their resources, giving priority to thedesignation and protection of areas of criticalenvironmental concern; project future uses ofpublic lands and resources; and provide for themanagement of Federal lands in accordance withthe principles of multiple use and sustained yield,considering the relative scarcity of the resourcevalues involved and the availability of alternativemeans for realization of those values.

3

4 . Environmental Protection in the Federal Coal Leasing Program

These acts were followed a year later by theSurface Mining Control and Reclamation Act of1977 (SMCRA; Public Law 95-87), which requirescompanies to submit a detailed mining andreclamation plan and obtain a surface mining per-mit prior to opening a mine. SMCRA also estab-lished performance standards to assure that sur-face coal mining operations would be soconducted as to mitigate damage to the mine site.

The final law which bears directly on environ-mental protection on Federal coal lands is the Na-tional Environmental Policy Act of 1969 (NEPA;Public Law 91-190). NEPA requires all Federalagencies to prepare a detailed statement on theanticipated environmental effects of every

. . . major Federal action significantly affectingthe quality of the human environment. . . .“Regulations to guide the implementation of NEPAhave been promulgated by the Council on Envi-ronmental Quality (CEQ). A large body of Fed-eral case law has further defined NEPA re-quirements, particularly with regard to the scopeand content of EISs.

A comprehensive Federal coal leasing programimplementing these statutes was instituted in1979, following the preparation of a program-matic EIS under NEPA (2). The first lease salesunder the new program were held in 1981 and1982 (see table 1). In 1982 and 1983, DOI revisedthe regulations implementing the program to re-flect a departmental shift in policy toward mak-ing more coal available for lease, to eliminateduplicative regulations, and to streamline theleasing process in order to facilitate lease sales.The changes in leasing policy and certain aspects

of the sales held since 1981 have become con-troversial. In particular, some groups havecharged that the Federal Government did not re-ceive fair market value for the coal, and that theenvironmental protection provisions of the leas-ing program had been softened and were not be-ing implemented fully or would not be followedwhen the coal is developed.

As a result of these concerns, in mid-l983, Con-gress mandated the establishment of an AdvisoryCommission to review Fair Market Value for Fed-eral Coal Leasing. In the fiscal year 1984 Interiorand Related Agencies Appropriations Bill, almostall leasing was suspended until 90 days after com-pletion of the Fair Market Value Commission Re-port (delivered on Feb. 17, 1984). The Confer-ence Committee Report on that bill specified that:

. . . the managers will direct the Office of Tech-nology Assessment to provide the Congress withan assessment of the [Federal coal leasing] pro-gram’s ability to ensure the development of coalleases in an environmentally compatible manner(7),

Subsequently, OTA received a formal letter ofrequest from the Senate and House Appropria-tions Committees, and their Interior subcommit-tees, which indicated that the conferees believedthat OTA could provide an independent analy-sis of the leasing program in a timely manner be-cause of OTA’s previous report on Federal coalleasing–An Assessment of the Development andProduction Potential of Federal Coal Leases (5).The letter of request repeated the language fromthe Conference Committee Report, and went onto say:

Table I.—Lease Sale Schedules

Leasingtarget/level Offered sold

Sale Sale date (millions of tons)Green River-Hams Forka. . . . . . . . . . . . . . . . . . . 1/81 ;4/81 ;6/81 416 573 573

Round 1Uinta-Southwestern Utaha . . . . . . . . . . . . . . . . . 7/81 ;2/82;5/82 322 555 88

Round IPowder River . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4/82; 10/82 2,360 1,681 1,580

Round IFort Unionb . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9/83 800-1,200 543 102b

Round Ialn place reservesbBld received, but not sold because of lease sale ban in fiSCal year 19S4 lnWiOr Appropriations Bill.

SOURCE: Office of Technology Assessment, from Bureau of Land Management documents.

Ch. 7—Introduction • 5

In particular, we want to ensure that the publiclands suffer no unmitigated or undue environ-mental problems when recently leased Federalcoal tracts are developed. Are there characteris-tics of some of these tracts that would make de-velopment difficult under current environmentallaws and regulations? When all characteristics areconsidered, is the cumulative environmental ef-fect cause for concern? We are also interested inthe pre-sale planning being carried on by the De-partment of Interior. In your judgment, are dataand research about the tracts adequate to basea decision on whether the tracts can be devel-oped in an environmentally compatible manner?If not, we would appreciate your suggestions.

OTA designed this study to respond to the fivebasic questions posed in the letter of request. Thescope of the study was defined narrowly due tothe time schedule specified by the requestingcommittees. “Environmental compatibility” wasinterpreted by OTA to mean “compatible withcurrent environmental laws and regulations, ”such as the Clean Air and Water Acts and NEPA.(These laws are described briefly in app. A to thisreport.) While this report evaluates the adequacyof DOI and BLM programs and regulations inlight of the full range of statutory mandates, OTAcould not explicitly review the adequacy of allthe laws mentioned in appendix A. Thus, the re-port generally assumes that programs external toDOI are adequate to protect environmental val-ues on public lands.

Second, the study was restricted, for the mostpart, to issues related to the physical environ-ment. In most areas, impacts of coal mining onthe human environment, including social andeconomic impacts, and surface owner consent,are of equal concern. These issues are sufficientlycomplex that it would not have been possible toaddress them adequately in this report. However,where these are the predominant concerns foran interest group or region, they are noted (e.g.,Indian Tribes).

Third, OTA limited its analysis to the coal leas-ing program, and did not consider the permit-ting process or other coal development issuessuch as transportation, or the siting and opera-tion of conversion facilities (e.g., powerplants,synfuels plants). Fourth, OTA’s analysis was lim-

ited to the five major Western coal regions wheremost of the environmental controversy has arisen.These regions: Fort Union, Green River-HamsFork, Powder River, San Juan River, and Uinta-Southwestern Utah, are shown in figure 1.

To assist in the formulation of OTA’s responseto the letter of request, background papers wereprepared that documented the leasing programand its implementation to date in five Westerncoal regions. In particular, those papers evaluatedBLM’s pre-sale planning and environmentalassessment and documented the controversy sur-rounding the environmental aspects of the leas-ing program based on extensive interviews withBLM personnel, State government representa-tives, coal companies, and public interest groupsin the five regions. The findings of those reportswere reviewed at an OTA-sponsored workshop(see front of report for a list of workshop partici-pants). The workshop also included detailed dis-cussion of the full range of environmental issuesraised by the participants in the leasing program.

This report is the product of the extensive in-terviews, background reports, and workshopdiscussions on the environmental aspects of theFederal coal leasing program. The report outlinesDOI’s pre-lease environmental assessment andplanning process, describes how that process wasimplemented in the five Western coal regions,discusses the issues that have been raised withrespect to the adequacy of that process and itsimplementation, and reviews policy options thatwould allow leasing to proceed in an environ-mentally compatible manner.

The report is organized as follows:

●

●

chapter 2 presents OTA’s findings on thequestions posed in the Conference Commit-tee Report and the letter of request andanalyzes policy options for consideration byCongress to improve the leasing program’sability to ensure that leasing decisions willbe environmentally sound;chapter 3 describes the Federal coal manage-ment program and its provisions for environ-mental protection, as established in laws andregulations; and

6 • Environmental Protection in the Federal Coal Leasing Program

Figure 1 .—Five Western Coal Regions

I

Green RiverHams Fork

SOURCE” Office of Technology Assessment

chapter 4 discusses the issues that have been The background papers documenting the struc-raised about the environmental aspects of ture of the leasing program and its implementa-the leasing program, and outlines OTA’s tion in the five Western coal regions are pre-findings on those issues. sented as appendixes in a separate volume.

Ch. 1—Introduction ● 7—

CHAPTER 1 REFERENCES1. Bureau of Land Management, Fina/ Environment/

Impact Statement, Proposed Federal Coal LeasingProgram, FES-75-80 (Washington, D,C: U.S.Government Printing Office, 1975).

2. Bureau of Land Management, Fina/ Environment/Sta tement , Federa l Coal Management Program(Washington, D.C: U.S. Government Printing Of-fice, April 1979).

3. Bureau of Land Management, Ho/dings and Devel-opment of Federa/ Coa/ Leases (Washington, D.C:U.S. Department of the Interior, 1970).

4. /VRDC v. Hughes, 437 F. Supp. 981 (D. D.C. 1977).

5. Office of Technology Assessment, U.S. Congress,An Assessment of the Development and Produc-tion Potentia/ of Federa/ Coal Leases, OTA-M-150(Washington, D.C: U.S. Government Printing Of-fice, December 1981).

6. S;erra C/ub v. K/eppe, 327 U.S. 390 (1 976).7. U.S. House of Representatives, Making Appropria-

tions for the Department of the Interior and RelatedAgencies for the Fiscal Year Ending September 30,1983, Conference Report to accompany H.R. 3363(House Report No. 98-399, 98th Cong., 1st sess.,p. 22).

Chapter 2

Findings and Policy Options

Chapter 2Findings and Policy Options

Competitive leasing of Federal coal resumedin 1979 following an 8-year moratorium, severallawsuits, and congressional approval of legisla-tion to ensure that leasing decisions would bebased on comprehensive planning and environ-mental impact assessment, that leases would bedeveloped in a timely manner, and that the publicwouId receive a fair return on publicly ownedlands. Consensus among all parties interested inleasing was reached in 1979 on a set of regula-tions and policies to carry out that legislative man-date, and the first round of lease sales was heldin 1981 (see table 1 in ch. 1).

Changes made in 1982 and 1983 to the regula-tions and to other Department of the Interior(DOI) policies and actions implementing the leas-ing program weakened that consensus. Altera-tions in the method of determining regional leas-ing levels increased the number of tracts to beoffered for lease beyond what the Bureau of LandManagement (BLM) could review for environ-mental compatibility in the time allotted, and, asa result, BLM was unable in many cases to per-form adequate pre-sale planning and environ-mental assessment, At the same time, critics con-tended that the high leasing levels andirregularities in tract valuation prevented thegovernment from receiving fair market value forthe coal.

In response to these allegations, in mid-l983Congress ordered DOI to appoint a Commissionto study issues related to fair market value. Shortlythereafter, the Senate and House AppropriationsCommittees asked the Congressional Office ofTechnology Assessment (OTA) to evaluate the en-vironmental aspects of the leasing program. Inparticular, OTA was asked:

1. Is the Federal coal leasing program adequateto ensure the development of leases in anenvironmentally compatible manner?*

*The phrase “environmentally compatible” was in the Confer-

ence Committee Report on the DOI Appropriations Bill, which man-

dated this assessment. OTA has interpreted this phrase to mean

“in a manner compatible with current environmental laws and reg-

ulations” (other than those directly related to the leasing program;

see ch. 1).

2.

3.

4.

5.

This

Are pre-sale data and research about re-cently leased tracts adequate to base a deci-sion on whether those tracts can be devel-oped in an environmentally compatiblemanner?Are there characteristics of some of the re-cently leased tracts that wouId make devel-opment difficuIt under current environmen-tal laws and regulations?When all characteristics are considered, arecumuIative environmental effects cause forconcern?What are technical and policy options formitigating environmental concerns?

chapter presents OTA’s responses to thesequestions. Detailed documentation of the issuesand findings summarized below may be foundin chapter 4.

1. Is the Federal coal leasing program adequateto ensure the development of coal leases inan environmentally compatible manner?

A Federal coal leasing program (described inch. 3) was instituted in the late 1970’s followingan 8-year moratorium on leasing that had beenimposed in response to economic and environ-mental concerns. Elements of that program thataddress the latter include requirements for com-prehensive land use planning, site-specific anal-ysis of potential lease tracts, and regional envi-ronmental impact assessment before a leaseoffering. These requirements are implementedthrough a tiered system of data collection andanalyses, in which the level of detail increasesand the amount of land under consideration de-creases as land moves closer to actual develop-ment (see fig. 2). As described in chapter 3, thistiered system begins with land use planning,when all potential resource uses on Federal landsand opportunities for development of particularresources are identified; proceeds through plan-ning for a specific activity (e.g., a coal lease sale),including preparation of an environmental impactstatement (EIS); and culminates after leasing inreview of an application for a surface mining per-mit, which includes a detailed tract-specific min-ing and reclamation plan (see fig. 7 in ch. 3).

11

12 ● Environmental Protection in the Federal Coal Leasing Program

Figure 2.—Tiered Structure Concept of Data and Analysis

Land useplanning

Activityplanning

Leasing

Permit applicationand mine plan

reviewSOURCE: Office of Technology Assessment.

Although the majority of environmental impactsresult from actual mine development, the envi-ronmental implications of land use planning andleasing decisions also are important in terms ofthe priority assigned to coal management relativeto other potential resource uses (e.g., grazing,timber, watershed, recreation, wildlife, other fuelor mineral development), and the degree towhich tracts with a high potential for environmen-tal damage are screened out prior to the leasesale.

OTA found that, in principle, the statutoryframework and the tiered system concept de-veloped to implement that framework are ca-pable of assuring adequate environmental pro-tection during the development of Federal coalleases. The framework is the result of at least 5years of extensive debate and negotiations amongthe various parties interested in the developmentof an economically and environmentally soundFederal coal management program (e.g., DOI,Forest Service, Fish and Wildlife Service, coalcompanies and their consumers, environmentaland public interest groups, State governments,and Congress), While each of those groups hasa “wish list” of the elements of a statutory frame-work that would be perfect from their perspec-tive, there is consensus among them that the ex-isting legislative mandates are, in theory,

workable and adequate to ensure environ men-tally compatible development of Federal coalleases.

However, in practice, implementation of thatframework has fallen short. OTA found thatsome aspects of the 1982 rule changes signifi-cantly increased the probability (i.e., risk) thatenvironmentally sensitive tracts would be leasedand eventually mined, and weakened publicconfidence in the environmental soundness ofthe Federal coal leasing program. These changesincluded a substantial increase in leasing levels;the elimination of most regulatory guidelines andstandards for data adequacy; the elimination ofregulatory authority to drop tracts (prior to theEIS) from further consideration for leasing whena threshold level of cumulative impacts isreached; the elimination of several opportunitiesfor public participation, including public com-ment on proposed leasing levels and on applica-tion of the unsuitability criteria; and the elimina-tion of the December 1984 deadline forcompletion of comprehensive land use plans pur-suant to the Federal Coal Leasing AmendmentsAct (FCLAA) and the Federal Land Policy andManagement Act (FLPMA).

A second question about the adequacy ofBLM’s implementation of the environmental pro-

Ch. 2—Findings and Policy Options • 13

tection aspects of the Federal coal managementprogram is whether BLM field activities are con-sistent with the legal framework. OTA found thattime, staff, and budget constraints have pre-vented BLM field personnel from satisfying thefull intent of the statutory mandate. This wasevidenced when decisions required to be madeduring land use planning were deferred to activ-ity planning or to review of the surface miningpermit application. In effect, deferral of decisionsassumes that an area eventually will be found ac-ceptable for mining. As a result, decision defer-ral has led to overuse of individual lease stipula-tions to address uncertainties in mitigationrequirements, and has detracted from the con-sistency and predictability of the leasing process.While BLM needs some flexibility to adapt tochanging conditions, all participants in leasingneed a program that is implemented in a stableand consistent manner.

When BLM was not able to comply fully withregulatory requirements, the primary cause wastime constraints resulting from high leasingrates—the combination of inflexible lease saleschedules and a substantial increase in the num-ber of tracts to be evaluated for each sale. Thisproblem could be alleviated with increased budg-et and staff allocations to land use planning andactivity planning. However, this option is incon-sistent with current budget policy and does notaddress the burden high leasing rates place onother participants in the coal leasing program.Alternatively, the leasing rate could be loweredto accommodate existing staff and budget re-sources, and important concerns ranked in plan-ning and environmental assessment and re-sources allocated to those concerns on a prioritybasis, to facilitate higher quality and more con-sistent planning efforts by all participants inleasing.

A comprehensive land use policy for Federallands also would help close the gap betweentheory and practice in the coal leasing program.While the elements of such a policy are in placein the basic legislation, additional guidance isneeded on the relative importance to be placedon various uses of, and resource values on, Fed-eral lands. DOI’s ongoing reevaluation of its ownpriorities for allocating resources would aid in the

development of such a policy, and the early com-pletion of this effort should be encouraged. Con-gressional guidance on land use policy consist-ent with FCLAA, FLPMA, and the NationalForest Management Act, and on the allocationof BLM resources to data collection and analy-sis at different stages of the leasing process,could be offered through the authorization andappropriation process. Additional coordinationalso is needed among the various Federal surfacemanagement agencies (e.g., BLM, Forest Service,Bureau of Indian Affairs). For example, potentialleasing areas within National Forests are not yetcovered by Forest Land and Resource Manage-ment plans (currently scheduled for completionand approval by September 1985), preventingconsistency between BLM and Forest Serviceplanning decisions (see fig. 3).

2. Are pre-sale data and research about recentlyleased tracts adequate to base a decision onwhether those tracts can be developed in anenvironmentally compatible manner?

Determination of the adequacy of pre-sale dataand analyses is difficult for three reasons. First,the current program regulations provide insuf-ficient guidance or standards for determiningwhen data and analyses are to be deemed ade-quate. As a result, each participant in the Ieas-ing process applies his own standards of adequa-cy, which vary widely. Second, existing analysesof data adequacy often focus on whether a deci-sion is supported by the data and research, notwhether the supporting analysis is of high qual-ity in its own right. Third, judging the adequacyof data raises the question of at what stage inthe coal management program particular deci-sions should be made. The industry would pre-fer to see most environmental questions resolvedat the mine plan stage, while others want mostsuch questions—especially final application of theunsuitability criteria* —answered before a tractis leased. As noted previously, OTA found thatthe tiered system concept of evaluating environ-mental impacts could provide a workable bal-ance among these concerns if it were imple-mented in a manner consistent with thelegislative mandate.

*Except for the alluvial valley floor criterion, which can be de-

ferred to permitting,

14 ● Environmental Protection in the Federai Coal Leasing Program

Figure 3.—Approximate Overlap Between Coal Leasing Regions and NationalForests and Other Special Federal Management Areas

1

Coal leasing regions

National forest lands

Other special Federal areas(National parks, recreationareas, grasslands)

SOURCE: Office of Technology Assessment

The only detailed regulatory guidelines orstandards in the program regulations by whichto judge the adequacy of data apply to the un-suitability criteria. In general, that standard re-quires the use of “the best available data that canbe obtained given the time and resources avail-able to prepare the plan,” plus an indication ofthe adequacy and reliability of the data involved,and, if the criteria cannot be applied due to in-

adequate or unreliable data, a discussion of the -

reasons therefor, and an assessment of when“the data needed to make an assessment withreasonable certainty would be generated” (43CFR 3461 .3-1 (b)(l); emphasis added). Further-more, this standard specifies that no lease tractmay be analyzed in a final regional lease sale EISwithout “significant data material to the applica-tion to the tract of each [unsuitability] criterion, ”

Ch. 2—Findings and Policy Options • 15

but it also allows the inclusion of tracts when dataare lacking for the application of the criteria foronly a portion of the tract, and if BLM determinesthat lease stipulations or permit conditions could“avoid any problems which may result from sub-sequent application of the criterion or exception”(43 CFR 3461 .3-1 (b)(2)).

It is OTA’s view that this standard is too vagueto provide meaningful guidance to BLM person-nel on the level of data and analyses needed tosupport application of the unsuitability criteriaand thus cannot be applied effectively to otherdecisions in the leasing process. Furthermore,this standard may actually be counterproduc-tive in that it excuses the primary cause of BLM’sinability to comply fully with the statutory andregulatory requirements-insufficient time andresources—and explicitly allows deferral of un-suitability decisions on portions of tracts to theSecretarial decision and beyond and thereforecould promote the overuse of lease stipulationsand permit conditions.

As a result, OTA proposes that BLM’s data andanalyses be considered “adequate” if they: 1 )promoted a reasonable consensus among theparticipants in the leasing process (i.e., did notresuIt in substantial controversy over insufficientdata); 2) did not necessitate decisions to accom-modate gaps in data and analysis (e.g., deferralof decisions beyond the time when they were re-quired to be made, or lease stipulations requir-ing the collection of data that should have beenavailable for the evaluation of a tract’s accepta-bility for leasing); and 3) supported the decisionmade.

Based on this definition, it is OTA’s judgmentthat, in many cases, BLM’s pre-sale data andanalyses have been inadequate to base a deci-sion on whether recently leased tracts (and thoseproposed to be offered in future lease sales) canbe developed in an environmentally compati-ble manner. In literally all coal leasing regionscriticisms about insufficient data upon which tobase decisions about unsuitability criteria or mul-tiple-use tradeoffs have been documented (seech. 4). Because the supporting data and analy-ses were inadequate, decisions about tracts’ ac-ceptability for leasing that should have been

made during land use planning were deferred toactivity planning, the Secretarial decision, or mineplan review.

Because the tiered structure of the environ-mental decisionmaking process is inherently dependent on a succession of increasingly detaileddata and planning bases, the quality of decisionsmade at one tier suffers if data were not avail-able in sufficient detail to support the requireddecision at the next lower tier. This concern ex-tends to decisions that are deferred to the mineplan stage, in part because decisions at that stageare intended to accommodate coal development,rather than exclude areas from mining. While re-cognizing the importance of ensuring environ-mental protection at the mine permit review stageand during mine development and reclamation,OTA was unable to evaluate those aspects of theFederal coal management program within theconfines of this assessment.

Although the data base and analyses were ade-quate for some decisions by the time the final EISfor a regional lease sale was completed, deferralof data collection and analysis to activity plan-ning means the data were not available early onto be incorporated in comprehensive land useplanning and the identification of opportunitiesfor the development of coal resources, or in RCTtract rankings. Moreover, reliance on tract-specific data and analyses for some areas raisesproblems because the lack of data at an equiv-alent level of detail for an entire leasing regionmeans that data and analyses may not providea perspective on the regional importance of re-source values.

The quality of data and research vary widelyamong regions, among tracts within a region,and between sales within a region. Regional dif-ferences can be attributed in part to the level ofcoal development activity in the past, and there-fore the availability of data on the impacts of min-ing, and in part to the degree to which future coaldevelopment was anticipated in early planningdocuments. For example, the San Juan River Re-gion, which generally is considered to have hadthe most problems with data adequacy, did notanticipate a high level of leasing activity and con-sequently was faced with a massive data collec-


tion and analysis effort given the high regionalleasing level. Differences in the quality of dataamong tracts within a region often can be tracedto the availability of data from sources other thanBLM (e.g., an operating mine adjacent to a pro-posed lease tract), or to the difficulty of data col-lection and planning when BLM does not man-age the surface. Finally, better informationtypically is available for subsequent lease salesthan the first round sale because of the greateramount of time available for data collection andanalysis and the ability to build on planning andassessments conducted in support of the earliersale.

The primary cause of the inadequacy of dataand analyses was high leasing rates—the ratioof leasing levels and lease sale schedules. Highleasing rates increased the number of tracts thathad to be evaluated during land use and activityplanning without giving field personnel additionaltime in which to complete those evaluations.Consequently, some land use planning decisionseither had to be deferred or made on the basisof available data. In other instances, additionaltime was taken to complete land use planning,which resulted in less time for activity planning—primarily site-specific analyses–which detractedfrom the adequacy of data and analysis at thatstage. High leasing rates also strained the re-sources of other participants in the leasing proc-ess. For example, the Forest Service was unableto complete its required planning in time to meetBLM’s sale schedule in the Uinta Region. It shouldbe noted, however, that even with perfect dataand analyses, high leasing rates—in and ofthemselves—increase the probability that envi-ronmentally sensitive tracts will be leased be-cause high leasing levels mean that a greaternumber of tracts must be offered for lease.

Other policies that have contributed to datainadequacy are: continued reliance on pre-FLPMA Management Framework Plans (and For-est Service land use or unit plans) that have beenupdated or amended to reflect leasing activity,rather than giving priority to the preparation ofcomprehensive new areal planning documents(Resource Management Plans); reduced budg-et allocations for new resource inventories,which forces BLM field personnel to rely on data

available to them, which may be out of date;a failure to consistently seek out and considerdata available from sources other than BLM(e.g., mine plans and operating mines, otherFederal and State agencies); and personnel rota-tions within BLM that constrained the develop-ment of an institutional memory. The lastpoint–continuity among qualified, experiencedpersonnel–is especially critical to the consistencyof data and analyses over time, and to the main-tenance of an adequate understanding of the coalregions and the potential impacts of mineral de-velopment in those regions. The effects of the pol-icies listed above are compounded by factorssuch as the lack of ways to make use of industrydata and to include industry resources more dur-ing the planning stages; and the difficulty of ac-cess for data collection when the Federal Govern-ment does not own the surface.

3. Are there characteristics of some of the re-cently leased tracts that would make develop-ment difficult under current environmentallaws and regulations?

Virtually all lease tracts have characteristicsthat might be considered by some to be incom-patible with coal mining, ranging from presentland uses, such as agriculture or timber manage-ment, that would be disrupted by mining, to envi-ronmental values that might be lost for at leastseveral years due to mining (e.g., wildlife habi-tat; see tables 2 and 3). The tiered decisionmak-ing process for coal leasing is intended to screenout lands before a lease offering where it is clearthat impact mitigation would not be possible, orwhere mining would interfere with other impor-tant resource values. However, the inadequacyof data and analyses discussed previously pre-vented effective implementation of the tieredstructure concept. As a consequence, less wasknown prior to leasing about the sensitivity orregional value of the environmental resourceson these tracts than was desirable. Moreover,the environmental screens have not always beeninterpreted as strictly or applied as consistentlyas intended in the 1979 program, in part becauseof the 1982 regulatory and policy changes, andin part due to insufficient data and analysis.

As a result of these and other factors, environ-mentally sensitive tracts have been “carried for-

Ch. 2—Findings and Policy Options ● 17

Table 2.—Environmental Resources of Coal-Producing Regions

CarryingAgriculture capacity

Air quality Water quantity and quality Vegetation Wildlife and land usea Iivestock b

Fort Union Uniformly very Annual runoff: 1"/yr.good Surface water availability limited

except in major streams.Groundwater available in smallquantities except in alluvial valleyswhere more abundant.Major streams: Missouri,Yellowstone, Knife.

Eastern: Wheat- Varied wildlife: Cropland con- 8.2 acres/grass, needlegrass. 87 species birds, stitutes 75% A.U.M.Western: Gramma, 70 species ream- of N. E., 5%needlegrass, wheatreals, 200 southerngrass. species fish, 20 area.

species reptiles Elsewhere,and amphibians. Cropland: 37°/0Federally pro- Range: 540/0tected species: 4 Principalbirds, 3 mam- crops: wheatreals. and grain.

Powder River Overall quality:generally good.Variations aroundpopulated areas,i.e., Colstrip, Mont.is a nonattainmentarea for TSP.

Annual surface water run-off: lessthan 0.5”.Surface water limited except alongmajor streams. Quality: variable.Groundwater availability and quali-ty: variable,Major streams: Yellowstone, BigHorn, Powder, Tongue, BelleFourche, and Musselshell.

Wyoming: Prairie Similar to Fort Grazing and 15.5shortgrass, Union. ranching. acres/grassland Federally pro- Cropland: 50/. A.U.M.sagebrush. tected species: 3 Range: 88°/0Montana: grassland birds, 1 mammal.sagebrush, andponderosa pine.

Green River- Overall quality veryHam’s Fork good, however,

Craig, Colo. andparts of Sweet-water, Colo., andWyoming are non-attainment forTSP.

Annual runoff: Western half: 10-30” Cold desert biome: 53 mammal Cattle and 9.3 acres/Eastern half: .1-2” sagebrush. species. sheep ranch- A.U.M.Quality good in mountains and Salt brush biome: Large numbers of ing, limitedpoor in basins. greasewood, moun- big game farming.Major streams: Green, Yampa, tain shrub, animals. Cropland: 4%Sweetwaters, Shoshone, Greybull. evergreen forests, Varied game and Range: 70°/0

broadleaf forests. non-game fish Forests: 27°/0species.Wild horse herds.Federally pro-tected species: 1fish, 3 birds, 2mammals.

Uinta- Rural air quality:Southwestern very good.Utah Urban areas: occa-

sional problemsduring temperatureinversions.

Annual runoff: 0.1-.5 "/yr. Vegetation variesGood water quality. with climate.Region contains numerous Cold desert biome:tributaries to the Colorado River: salt brush andGreen, White, Duchesne, Price, greasewood.Dirty Devil, Paria, Escalante, & Mountain ForestVirgin Rivers. biome: pine, fir,

spruce, andsagebrush.

Varied habitatsupports manydiverse species:90 species mam-mals, 270species birds, 26species reptiles,9 species am-phibiansFederally pro-tected species: 3fish, 3 birds, 2mammals.

Desert 8.3 acres/shrubland A.U.M.and openwoodlandgrazing.Crops: 3%Range: 62°/0Forests: 33°/0

San Juan River Overall quality Annual runoff: 0.1-O.5"/yr. Generally sparse Habitat supports: Cattle and 22 acres/generally good ex- Major streams: San Juan, Colorado, vegetation. 100 species sheep ranch- A.U.M.cept around in- and Little Colorado. Lower elevations: mammals, 116 ing.dustrial areas. San Juan River is the only perennial grassland shrub species birds, 28 Range: 50°/0High SO2 levels stream in Federal lease block area, and grasslands. species amphib- Forests: 450/onear powerplants. Ground waters are generally good, Upper elevations: ians. Limited crops:

but levels are dropping. Pinyon, juniper and Several are corn, hay,coniferous forests. unique to region. wheat, cotton,

Federally pro- and sugar-tected species: 1 beets.fish, 4 birds, 1mammal.

apercentages are Of totat land area. Only major land uses are Wed.bRefers t. the ability of the land to suPpcIrf livestock A.U.M, stands for animal unit month, which refers to the grazing requirements Of an “averaged” livestock animal

for 1 month.

SOURCE: US. Bureau of Land Management, Final Environmental Statement, Federal Coa/ Management Program, 1979.

—

78 ● Environment/ Protection in the Federal Coal Leasing Program

Table 3.—Archaeological and Cultural Resources of the Western Coal Regions

Major Federal parklandsRegion Archeological resources and forests resources

Fort Union Much of the region has some iden- . Little Missouri Nationaltified archaeological value. A few Grasslandareas have large sites and/or high ● Theodore Roosevelt Nationalsite density. There is a high prob- Memorial Parkability of disturbance to sites in ● Custer National ForestCuster Co., Mont., and in Mercer,Williams, and Oliver Co’s., N. Dak.

Powder River There is a high probability of distur- ● Devils Tower National Monumentbance to sites in Rosebud, Bighorn ● 65 Sites eligible for, or currentlyand Powder River Co’s., Mont, and enrolled on the National Registerin Johnson and Campbell Co’s., of Historic sites.Wyo. Remainder of region consid- . Thunder Basin Nationalered to have some archaeological Grasslandvalue. ● Custer National Forest

Green River- The region has some identified . Flaming Gorge National Recrea-Hams Fork archaeological value. Many areas tion Area

have not been surveyed. ● Dinosaur National Monument

Uinta-Southwestern There is a high probability of dis- . Capital Reef, Arches, Can-Utah turbance to Fremont and Anasazi yonlands, Zion, and Bryce Can-

sites in Emery, Kane and Garfield yon National ParksCo’s., in Utah. Remainder of region ● Cedar Breaks National Monumentconsidered to have some archaeo- . Black Canyon of the Gunnison,logical value. and Colorado National

Monuments

San Juan River This region has been identified as ● Mesa Verde National Parkhaving both great archeological • 6 National Monumentsand historical value. There is a highprobability of disturbance to sitesin the Chaco Canyon National Monu-ment area.

aB~ed on ~ ~uwey performed by the National Academy of Sciences of 69 strippable coal areaS in the West. Tables A.1, A.3, Retra~~/ita-

tlon Potent/a/ of-Western Coal Lands, NAS, 1974.

SOURCE: Office of Technology Assessment.

ward” from land use planning to activity plan-ning and the Secretarial decision on a lease sale,and final decisions on tract acceptability havebeen deferred to permit application review (e.g.,tracts containing municipal watershed). These de-cision deferrals, coupled with the factors notedabove, increased the probability (i.e., risk) eitherthat adverse environmental impacts will occurif a recently leased tract is developed, or thatsuch tracts will be costly or difficult to developand reclaim. None of the recently leased newproduction tracts has been through the permitapplication review process, and thus no deter-minations about the technical and economic fea-sibility of mining and reclamation on those tractshave been made by permitting agencies. How-ever, such determinations will be made eventu-ally, and if a tract or a portion of a tract cannot

be developed in a manner compatible with cur-rent environmental laws and regulations, then theSurface Mining Control and Reclamation Act of1977 (SMCRA) does not allow a permit to beissued for that area.

While unable to determine whether the leasedtracts are technically and economically reclaim-able under SMCRA, OTA found no “fatal flaws”that would absolutely preclude mining on tractsthat have been leased since 1979. In some cases,however, BLM carried tracts with what mightbe considered fatal flaws all the way throughpre-lease planning and analysis, and scheduledthem to be offered for lease, but withdrew them(often for reasons unrelated to the leasing proc-ess) at the last minute. For example, the Garrisontract in Fort Union contains two missile silos and


several miles of control cable, which the Air Forceconsiders to be a fatal flaw, but the tract was car-ried forward at the request of industry pendingcompletion of an Air Force study on the bufferzones needed to protect defense installationsfrom surface mining. The tract was dropped inthe Secretarial Issue Document at the request ofthe Secretary of the Air Force because the studywas not complete. Tracts that are dropped stillare not necessarily considered absolutely unsuit-able for mining; they may merely be removedfrom further consideration for leasing until addit-ional research on mitigation and reclamation al-lows a final decision to be made.

However, differences in professional judg-ment do exist on both the relative importanceof environmental resource values and the abilityto mitigate environmental impacts on sometracts that were offered and/or leased or areunder evaluation for leasing. For example, in theSan Juan River leasing region, the paleontologicalcommunity cannot agree on whether fossil de-posits should be protected outright, or whetherimpacts can be mitigated and the scientific valueof the fossils preserved through appropriate ex-cavation techniques. In the powder River Region,debate over the technical and economic feasi-bility of reclamation on several tracts led to theTongue River Unsuitability Petition, which wasdenied because sufficient data will not be avail-able to evaluate reclaimability until mining andreclamation plans are prepared by lessees.

A major source of the disagreement about therelative environmental sensitivity of recentlyleased tracts lies in the disagreement about thetypes of impacts that can be mitigated and theability to reclaim surface mined land. Critics ofthe environmental safeguards in the leasing pro-gram argue that the success of reclamation onsurface mined lands has yet to be demonstratedconclusively, and that the coal industry is overlyoptimistic about the prospects for successful rec-lamation. Therefore, they contend that whereevaluation of a tract prior to leasing raises ques-tions about its reclaimability, that tract should bewithdrawn from leasing until additional reclama-tion experience is accumulated. Others argue thatexperience to date demonstrates there is almostno land that cannot be reclaimed technically, and

very few (if any) types of impacts that cannot bemitigated, and the only question is whether mit-igation and/or reclamation are economicallyfeasible. * They see that as a business decisionwhich should not be made for the lessee by agovernment agency or other group.

Due to the extremely detailed analyses thatare necessary to evaluate reclaimability, OTAbelieves that only estimates of reclamation po-tential can be made before leasing. These esti-mates are incorporated in the Regional CoalTeam’s tract rankings, but are not necessarily adeciding factor since tracts given a “low” or“moderate” reclamation potential ranking havebeen carried forward for leasing. Furthermore,OTA found that debate among experts about theability to mitigate particular types of impacts (e.g.,hydrology, archaeological and paleontological re-sources, critical wildlife habitat) leads to disagree-ment about how strictly the environmentalscreens should be interpreted.

Such differences in professional judgment fur-ther confuse the public about the adequacy ofenvironmental safeguards in the leasing pro-gram. Possible means of resolving these dif-ferences and improving public confidence in theenvironmental soundness of leasing decisionscould include more stringent standards forscreening tracts before leasing, which should re-sult in offering fewer tracts about which there issubstantial controversy. Continued research onimpact mitigation, mining, and reclamation tech-niques, and dissemination of the results to inter-ested parties also would help.

4. When all characteristics are considered, arecumulative environmental effects cause forconcern?

There are three aspects to cumulative impacts:1) when the total impacts on a particular tract aregreater than indicated by the mere sum of indi-vidual impacts; 2) the total regional impact ofmining on all leased tracts; and 3) the combined

*lt should be noted that a tract has never failed to be permitteddue to inability to demonstrate the technical or economic feasibilityof reclamation, although permit application review has resulted inportions of tracts being closed to mining to mitigate particular typesof impacts (e.g., buffer zones for wildlife habitat). As a result, deferralof unsuitability determinations to the permitting stage increases therisk that an environmentally sensitive tract will be mined.


impacts of mining on several tracts located in thesame area. The first aspect cannot be evaluateduntil the tracts have been included in a mine planand permit application. OTA finds the secondaspect is a matter of concern because the highleasing rates increased the number of tracts tobe evaluated in pre-sale planning (including theEIS) without increasing the resources availableto perform such planning (discussed earlier).

OTA finds that the third aspect of cumulativeimpacts-the effects of several mines operatingwithin the same area—also is cause for concernbecause the current regulations do not explicitlyincorporate the assessment of such impactsearly in the leasing decisionmaking process. The1979 regulations incorporated a “threshold” con-cept during land use planning and tract rankingfor determining when potential cumulative im-pacts were severe enough to warrant droppingtracts from further consideration for leasing or im-posing mitigation requirements. Under the 1982program, cumulative impacts still must be as-sessed in the regional lease sale EIS, which is pre-pared at the end of activity planning, in order tosatisfy the requirements of the National Environ-mental Policy Act. However, explicit regulatoryauthority to impose mitigation requirements ordrop tracts prior to the EIS when a threshold levelof cumulative impacts is projected was eliminatedin the 1982 rule changes. According to DOI, thatauthority was dropped because the thresholdconcept was not well understood and was neverused. An additional concern here is a lack ofagreement between BLM and other Federal sur-face management agencies (e.g., Forest Service)and State and local governments on the signifi-cance of projected cumulative impacts.

Most of the recently leased tracts were ana-lyzed under the 1979 rules, which did includea threshold concept for screening out areas witha potential for significant cumulative impacts. Be-cause that concept had never been applied, it isunclear whether the 1982 lease program willchange the treatment of cumulative impacts.

OTA’s view is that there is a potential for sig-nificant cumulative impacts if a number ofmines were developed within an area. Drainagebasin studies of lease areas prepared for BLM in

support of pre-sale planning and environmentalassessment raise concerns about cumulative hy-drologic impacts in the Powder River, Green Riv-er-Hams Fork, and Uinta-Southwestern Utah re-gions (see fig. 4). Similarly, the San Juan seconddraft EIS indicates that development of the pre-ferred leasing alternative could violate air qualitystandards, while an air quality study underwayin Powder River suggests that surface mining willhave adverse cumulative impacts on visibility andparticulate concentrations. *

The design of mitigation measures for cumu-lative impacts typically is left to the permittingagency because detailed data on factors such ashydrology are not available until mine plan re-view. Yet that review is tract specific and may notcapture cumulative effects from multiple mine de-velopment in an area. Furthermore, as noted pre-viously, decisions at the permitting stage are morelikely to result in mitigation requirements thanthe exclusion of areas from mining.

5. What are technical and policy options for mit-igating environmental concerns?

An economically and environmentally soundcoal leasing program is an integral part of na-tional energy policy and public land manage-ment policy. In 1979, all participants in coalleasing reached consensus on the elements ofa sound program. The soundness of that pro-gram—and underlying public confidence in theDepartment of the Interior—was underminedin 1982 when basic changes were made in pro-gram policy and regulations. Unless the reason-able expectations of all participants in thatprogram about economic and environmental“soundness” are satisfied once again, compet-itive leasing will continue to be stalled becauseof the environmental and economic risks, andpublic confidence in the program will continueto erode.

Recently, the Department of the Interior hasbegun a review of the Federal Coal Leasing Pro-gram. This is an important first step in restoringan environmentally sound and predictable leas-ing process and priority should be given to its rap-

*Cumulative air quality impacts are also a concern with mine-mouth and other coal conversion facilities in Fort Union.


3 4 - 7 5 6 0 - 3 - Q L 3

22 . Environment/ Protection in the Federal Coal Leasing Program

id completion. Other actions likely are needed,however, and OTA identified a variety of tech-nical and policy options that could improve theability of the Ieasing program to assure the de-velopment of leases in an environmentally com-patible manner, and help to restore a measureof stability and predictability to the leasing pro-gram. These options and the policy goals theymight promote are listed in table 4 and discussedbelow.

OPTION 1: Reduce lease rates

Reducing leasing rates by offering less coal forlease on a predictable, steady schedule (while stillallowing for adjustments in that schedule if nec-essary) would reduce the amount of land that hasto be evaluated within a given amount of timefor its environmental acceptability for leasing.Thus DOI staff would be more likely to have suf-ficient time to complete each stage of planningand analysis before proceeding to the next stage.Reduced leasing rates through lower leasing lev-els also would relieve the pressure on BLM to finda greater number of tracts environmentally com-patible, and could address criticisms of the ade-quacy of pre-sale data and analyses and their doc-umentation, the deferral of planning decisions,and the overuse of detailed lease stipulations. Asa result of all these factors, the risk of adverseenvironmental impacts on lease tracts would bereduced. However, if a lower leasing rate resultsin BLM concentrating its leasing efforts primari-ly on those tracts in which industry has expressedstrong interest, then such a rate could lead to leas-ing of tracts that are less environmentally com-patible than areas deferred for future evaluation.

A lower, but steady, leasing rate with a predict-able schedule also would make planning for allother participants in leasing more efficient. Fur-thermore, it is important that the process for set-ting leasing levels be transparent to facilitate pub-lic review, and that the process recognizeenvironmental and market realities and publicconcerns. This option would be easy to imple-ment, but would lengthen the period over whicha given level of forecast revenues from the leas-ing program would be received.

OPTION 2: Decentralize decisionmakingauthority

Decisionmaking authority in the current leas-ing program is highly centralized, with BLM Stateand field offices, and Regional Coal Teams (RCTs)forwarding recommendations to the Secretary ofthe Interior, who makes final leasing decisions.The program originally was structured to assuresensitivity to regional, State, and local needs andpriorities. However, confidence in the soundnessof that structure has eroded as Secretarial deci-sions on tonnages and tracts to be offered forlease and on the timing of leasing activities (in-cluding planning and environmental analysis)have, in many instances, overridden recommen-dations based on those needs and priorities.Overruling such recommendations also under-mines the predictability and stability of the leas-ing program and thus strains the resources of allparticipants in the program. Several options mightbe considered to restore the needed sensitivityand predictability.

Decentralizing decisionmaking authority ontracts and tonnages to be offered for lease, andthe timing of such offerings, to the RCT or BLMState Office level (subject to Secretarial review)would improve the sensitivity of leasing deci-sions to State and local needs and priorities. Del-egation of final leasing decisions on Ieasing ratesand tracts to be offered to the RCTs or the BLMState Office (subject to departmental review)would have few administrative costs. In effect,leasing decisions would remain in the hands ofthe Federal Government (which has a majorityon each RCT), but the final decision would becloser to the region it affects.

A second option–to restructure the RCTs togive the States equal or majority representa-tion–would take decentralization one step fur-ther. Under the current RCT structure, the Fed-eral Government retains the majority votingmembership on each RCT (see ch. 4). This hascontributed further to the perceived insensitivityto State needs and priorities. However, to givethe States a greater proportion would delegateimportant Federal management decisions on


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publicly owned resources to the affected Stategovernments, and may beat least illegal and per-haps unconstitutional.

A third, and also controversial, option for de-centralizing decision making would be to expandvoting membership on the RCTs to include abroader range of interests. This might involvemerely adding other affected Federal surfacemanagement agencies (e.g., the Forest Service),or all “interested parties” could be consideredfor membership, which would lead to extensivedebate on representation. Alternatively, RCT TaskForces on special topics can be used to ensuregreater participation by interested parties (see dis-cussion of public participation, below).

An additional means of decentralization wouldbe to reorganize the leasing regions along Stateboundaries. The current regions correspond tothe coal fields, which straddle those boundariesand thus each region contains portions of twoStates (see fig. 1 inch. 1). When those States’ de-velopment policies and goals conflict, leasing de-cisions can compound the appearance of insen-sitivity. Using two-State regions in the leasingprogram also has complicated the coordinationof BLM field operations. Restructuring the leas-ing regions along State boundaries could makeBLM management of the leasing program easieras well as more effective and predictable, be-cause fewer offices would be involved in theplanning and analysis for each coal region.However, it would require reorganization of theroles and responsibilities of the BLM offices in-volved in the leasing program, and could leadto balkanization of interests.

OPTION 3: Improve the effectiveness of pubilcparticipation

The effectiveness of public participation couldbe improved through brochures, newsletters, andworkshops aimed at increasing public under-standing; through better documentation of plan-ning and leasing decisions; through reinstatementof opportunities for public hearings and commentperiods on regional leasing levels, community im-pacts, and the application of the unsuitabilitycriteria—topics on which public input has prov-en valuable in the past; and/or through working

groups or ex officio memberships within theRCTs.

A basic problem with public participation inthe leasing program is that the general publicdoes not understand the program well enoughto participate effectively. This problem was dealtwith effectively in the Fort Union region with anewsletter issued by BLM and distributed to allinterested parties (e.g., landowners, public in-terest groups, other Federal and State agencies).Techniques that have contributed to public un-derstanding in other government programs in-clude brochures and workshops. A readablenewsletter or brochure that described the basicsteps in the program, their goals and products,and the means of public participation at each stepwould improve public understanding. Other pro-grams have had success with brochures draftedby Task Forces or Committees composed of rep-resentatives of different interest groups as wellas the Federal Government. Clearly, either anewsletter or brochure would have to be dissem-inated widely in areas affected by leasing in or-der to be effective. workshops in local commu-nities at the outset of land use and activityplanning also could improve public understand-ing, especially if they followed distribution of anewsletter or brochure.

Even groups who understand the leasing proc-ess may be frustrated in attempts to participate,however, because of the lack of documentationof leasing decisions. Currently, the availability ofdocumentation varies widely among regions. Inat least one region, the basic planning docu-ment—the MFP—is not available to the public inpublished form. In other regions, documents maybe widely available, but do not indicate the basisor rationale for decisions. As discussed in chapter4, regulations requiring such documentation havebeen dropped. If all documents supporting deci-sions were published and widely available, anddescribed the basis for decisions, including sup-porting technical data and analyses, the effec-tiveness of public participation would be en-hanced, and major sources of frustration with—and thus challenges to—leasing decisions wouldbe removed.


Several other means are available for increas-ing the quality and quantity of opportunities forpublic participation. The 1982 revisions to theleasing program regulations eliminated four op-portunities for public participation, includinghearings on DOE-established production goals,and comment periods on leasing levels, on com-munity impacts, and on the application of the un-suitability criteria. Comments on these factors arenow limited to time set aside at public RCT meet-ings and to personal communications with BLMpersonnel. The deletion of these opportunitieshas reduced the ability of the public to providean in-depth review of critical decisions support-ing a lease sale. Furthermore, these changes mayhave contributed to public confusion about op-portunities for participation. BLM should con-sider reinstating these opportunities in a man-ner that would enhance the effectiveness ofpublic participation.

The RCTs also were intended to provide a fo-rum for public participation in the leasing pro-gram. However, for a variety of reasons, includingthe formal RCT meeting style and inadequatepublic access to RCT background materials (in-cluding time for evaluation), opportunities forpublic participation at RCT meetings currentlyare more procedural than substantive. As a re-sult, several groups have asked for voting mem-bership on RCTs (which was denied). Expandingvoting membership to include other affectedgroups (e.g., Indian Tribes, the Forest Service,local communities and landowners) would be dif-ficult due to the need to decide what the impor-tant affected interests are and to negotiate forrepresentation of those interests.

Alternatively, greater use could be made ofspecial RCT Task Forces or working groups sim-ilar to those used by the San Juan River RCT andin Utah, or of ex officio memberships as in Col-orado. These avenues for increased public par-ticipation have proven effective in promotingconstructive dialog among the parties and thusimproving the quality of leasing decisions. Theprimary obstacles to the more widespread use ofRCT task groups, etc., are the limited RCT budgetand staff support, and the lack of BLM career in-centives for Bureau personnel who serve as RCTstaff.

Relative to public participation, care must betaken to ensure that the environmental, cultural,and economic concerns of special interestgroups (including Indian Tribes, local commu-nities, and farmers and ranchers) are addressedadequately. In particular, consultation with theTribes has not always occurred early enough inthe planning for a lease sale; coordination withTribal goals and policies is lacking. Such coordi-nation is difficult-in part because the environ-mental impacts of concern to the Tribes usuallydo not occur on BLM lands.

These options for improving the effectivenessof public participation tend to have a relativelylow administrative cost, with the possible excep-tion of RCT working groups. However, the ben-efits posed by effective public participation, interms of higher quality leasing decisions andtherefore reduced environmental risk in, andgreater public confidence in the soundness of,the leasing program, would outweigh the costsof implementation. Negotiated lease stipulations(when stipulations are absolutely necessary) arean additional mechanism for public participation,but, as discussed in chapter 4, raise concernsabout the overuse of stipulations and about anti-competitive effects if all potential bidders are notinvolved in the negotiations.

OPTION 4: Ensure comprehensive area planningis completed before a lease offering

One concern with the current implementationof the leasing program is the continued relianceon Management Framework Plans (MFPs) thathave been amended or updated to support re-cent leasing activity (see ch. 3). Further delaysin the preparation of Resource ManagementPlans as an up-to-date comprehensive arealplanning base will continue to contribute to theperceived inadequacy of BLM’s data and anal-yses, and thus reduce the likelihood that theleasing program will proceed in a predictableand stable manner. Preparing RMPs is a time-consuming process and could interfere with theimmediate progress of leasing unless coupledwith a very conservative leasing rate (option 1,above), and may leave BLM open to a charge of“planning for planning’s sake” in areas where up-dated MFPs are legally adequate. However, com-


pletion of RMPs as the base for future land useand leasing decisions would remove a majorsource of criticism of the adequacy of pre-saleplanning and analysis, and would help to ensurethat pre-sale planning is compatible with the spiritof the 1976 statutory mandate.

As discussed in chapter 4, during fiscal year1984 BLM proposed to implement severalchanges in the focus of pre-sale planning andassessment activities in order to reduce the costsof program administration. Of particular concernare the projected shift in emphasis from the col-lection of areawide data to information specificto areas with a high coal development potential,and the proposal to increase reliance on inhouseand company data (without ensuring public ac-cess and review of those data; see option 5,below). These changes assume that the existingplanning base will be adequate, with region- ortract-specific amendments, to support future leasesales. Since OTA found the opposite, continuedcutbacks in these activities could exacerbate thecurrent problems with the leasing program unlesscompensating reductions are made in the region-al lease rates (option 1, above).

OPTION 5: Develop a means of improving thedata base and access to it

Ultimately, the adequacy of land use and activ-ity planning and environmental assessment de-pends on the quality and quantity of supportingdata and analyses. In the course of this study,OTA identified several sources of relevant datathat would support leasing decisions by improv-ing BLM’s data base, but are not consistently be-ing sought out or systematically used by BLM.These include data from mine plans, ongoingmining operations, other Federal and State agen-cies, local communities and residents, academe,the industry, and interest groups.

The primary obstacle to the use of these datasources is that they are not compiled in a man-ner that permits easy access. Thus, BLM staffmust not only discover whether information rele-vant to a particular tract or question exists, butmust expend a substantial amount of effort insearching files, mine plans, or the published lit-erature to locate specific data. While consulta-tion with the groups or individuals knowledge-

able about an area can facilitate this processsomewhat, a comprehensive data base that com-piles information from all sources in an accessi-ble manner would provide a systematic meansof incorporating the widest possible range of in-formation about an area into pre-sale planningand analyses. Such a data base also could con-tribute to public and interagency review of BLMdocuments, as well as to the preparation of min-ing and reclamation plans. Furthermore, it wouldhelp ease the loss of institutional memory thatresults from attrition and personnel rotations.

DOI currently is developing a computerizeddata base on Federal coal resources and charac-teristics. This effort eventually could be expandedto include data bases on other resources, or evenresearch on all aspects of coal development. Al-ternatively, the task could be funded jointly byFederal and State governments and the industrythrough an industty association, a consultinggroup, or a university. OTA notes with regret thediscontinuation (for budget reasons) of the For-est Service’s quarterly compendium of surfacemining research, “SEAM. ”

At the same time, BLM needs to maintain up-to-date inventories of all resources on the publicdomain in order to address concerns about theage of some existing data, and about the gapsin available inventories. If such inventorying istoo expensive for the Federal Government, theburden for collecting these data could be shiftedto the industry. One option would be for thosecompanies interested in bidding on tracts withina particular area to jointly fund the collection andanalysis of data to support leasing (including dataon coal as well as environmental and other re-sources). The company that submitted the win-ning bid on a tract could then reimburse theothers for their contribution. A similar approachis used in assessing oil and gas resources on theouter continental shelf (30 CFR 251 .6-3). Alter-natively, an industry-funded research institutecould be established (similar in concept to theElectric Power Research Institute), with eachcompany’s contribution determined according toconsiderations such as its size and level of min-ing activities on Federal lands. For application tocoal leasing, either scheme could require someadjustment in the antitrust laws. Moreover, the


industry would have to make a commitment thatno such data would be deemed proprietary (otherthan coal resource data)—and thus not subjectto public review and comment—in order to ad-dress concerns about the injection of an in-herently pro-mining bias into BLM’s planning andassessment.

Research on the ability to mitigate certaintypes of impacts and to reclaim surface minedlands also should be continued, and the resultsdisseminated as widely as possible. Knowledgeabout (and thus use of) mitigation and reclama-tion techniques varied widely among the fiveWestern coal regions, As a result, some regionsused more stringent mitigation requirements thanothers. This contributed to the perception thatpre-sale planning and analyses were inadequate,and may have made mining on some tracts ap-pear more expensive than it had to be.

Finally, an important means of improving thequality of data and analyses is to encourage reten-tion of qualified, experienced field personnel. R-evaluating incentives for career development toencourage the maintenance of an “institutionalmemory” in BLM field offices and RCT staffassignments is a crucial first step here.

OPTION 6: Provide meaningful guidelines andstandards for assessing theadequacy of the data base

workable regulatory standards or guidelinesfor assessing the adequacy of pre-sale data andanalyses would remove some of the grounds foruncertainty about their adequacy, and wouldaid BLM staff in their management of lease sales.Such standards and guidelines contributed to theconsensus on the environmental soundness of the1979 program regulations, but largely were elim-inated from the regulations in 1982. The regula-tory standard that remains is too vague to pro-vide meaningful guidance to BLM field personnel,and may even excuse data inadequacy and thedeferral of decisions when these can be attributedto time and resource constraints.

Although internal BLM memoranda and otherdirectives continue to provide some guidelinesfor the adequacy of data and planning, these doc-uments are not binding as regulations are, are notsubject to public review and comment, are not

as accessible to the public as standards developedthrough formal rulemaking, and can be changedmore easily than regulations. Any regulations de-veloped should not be “cookbook” standards butguidelines with sufficient flexibility to accom-modate regional differences in data needs. Thesestandards should explicitly recognize the qualityand quantity of data and analysis in the variousfield disciplines needed to support decisions ateach stage of the leasing process, and also mightinclude guidelines that more rigorously definethe circumstances under which decisions can bedeferred due to insufficient data (or for otherreasons).

OPTION 7: Incorporate cumulative impactassessments in pre-sale planningdecisions

The use of cumulative impact analyses in earlyland use and activity planning decisions also waspart of the consensus on the 1979 regulations.Under the 1982 leasing program, however, cu-mulative impacts of the development of severalmines within an area are not required to be as-sessed until the EIS on a regional lease sale. Asa result, such an assessment usually is not incor-porated in land use planning decisions, and is notused in activity planning until the RCT’s final rec-ommendation on tracts to be offered for lease.Completion of adequate RMPs, which incorpo-rate an EIS on general land use planning deci-sions, will ease this situation. However, given thetiered concept of data and analysis, the EIS onan RMP cannot include information at the samelevel of detail as in site-specific analyses or thefinal EIS on a regional lease sale.

Moreover, the 1982 regulations eliminated thethreshold concept of cumulative impacts as abasis for dropping areas from further considera-tion for leasing prior to the final RCT recommen-dation. According to DOI, the threshold conceptwas not well understood and had never beenused. Development of a workable thresholdconcept of cumulative impacts and its reinstate-ment for land use and pre-EIS activity planningthrough formal rulemaking would improve thequality of BLM’s planning and assessment andreduce the probability that sensitive tracts wouldbe leased.

—


OPTION 8: Establish policies and procedures forenvironmental lease exchanges

OTA found lease exchanges to be a potentiallyuseful tool in reducing the risk that a tract, onceleased, would be found to be unminable for en-vironmental reasons. Thus, the availability ofenvironmental exchanges would reduce the pres-sure to approve a permit application on a tractfound to have environmental flaws after it hasbeen leased. Exchanges also can be valuable forpre-1976 leases and Preference Right Lease Ap-plications (PRLAs) that were not acquired underthe same mandate for environmental protectionand thus might be so environmentally sensitivethat the costs of mitigation and reclamationwould be prohibitive.

However, the need for congressional author-ization for coal lease exchanges coupled withthe lack of established, transparent policies andprocedures for effecting environmental lease ex-changes prevents their use. Policies and pro-cedures for economic exchanges are equally inneed of evaluation and definition. OTA makesno judgment about the value of economic ex-changes, but notes that consolidation of Federalownership could facilitate environmental protec-tion (although this has not always been the caseto date).

DOI took a first step toward developing sucha policy in a directive issued in November 1983,which states that “the exchange of leasable andsalable minerals is an important tool in achiev-ing public interest federal multiple use manage-ment and land protection goals,” and lists 12criteria for determining when an exchange wouldbe in the public interest. These criteria includeexchanges that would serve a national resourcemanagement or protection need. This generalpolicy directive should be supplemented with adetailed outline of the procedures to be followedin evaluating a proposed exchange, which shouldbe subject to public review and comment andincorporated in the program regulations. Thiswould lend predictability and stability to the envi-ronmental lease exchange option, improve publicand industry understanding of exchanges andthus the effectiveness of public participation, andwould reduce the probability (i.e., risk) that

environmentally sensitive tracts would be de-veloped.

OPTION 9: Evaluate policies and proceduresfor leasing on split estate andcheckerboard lands

Split estate lands (in which BLM owns the min-eral rights but not the surface) and checkerboardlands (where the Federal Government ownsevery other section in a “checkerboard” pattern)pose the most complex leasing situations. Basedon the implementation of the leasing program todate on split estate (and checkerboard) lands, theprocess does not work the way it was intendedin these areas. Resources that should be pro-tected on Federal lands during land use planningdo not appear to be valued as highly when theyoccur on private surface. Surface owners are ableto block data collection and leasing entirely, butdo not seem to have an equivalent ability to pro-mote decisions in favor of Ieasing. Moreover,comprehensive areal land use planning and thecontrol of post-mining land uses are extremelydifficult in areas where BLM is not the surfacemanager. These problems are compoundedwhen the Federal Government is the minoritylandowner. For instance, in the North Dakotaportion of the Fort Union Region, the FederalGovernment owns less than 1 percent of the sur-face and only up to 13 percent of the mineral es-tate. Figure 5 illustrates this situation on one po-tential lease tract in Fort Union.

As a result of these and other concerns, it isOTA’s view that a thorough reexamination ofthe coal leasing process on split estate lands ismerited. State representation and public partici-pation are essential to the credibility of any pro-gram established to evaluate leasing on split es-tate and checkerboard lands, and one means ofperforming this evaluation would be through aworking group or Task Force of the RCTs in re-gions where split estate or checkerboard landsraise concerns about the effectiveness of the Fed-eral coal leasing program.

OPTION 10: Establish uniform procedures forenvironmental evacuation of PRLAs

The environmental evaluation process forPRLAs is subject to many of the same problemsidentified with land use and activity planning

Ch. 2—Findings and Policy Options . 29

Figure 5.—Example of Split Estate With Minority Federal Ownership

Legend

Private surface

Tract boundary

Surface facilities

Out-of-pit haul roads

T145N

Legend

Federal coal (lOOO/.)

State coal (less than 100%)

Private coal

Federal coal lease

Pit advancement

Tract boundary

SOURCE: Bureau of Land Management, Fori Union Coa/ Region Draft Environment/ Impact Statament, July 19S2.


for competitive lease sales, but with PRLAs theconcerns are more pressing because the PRLAprogram does not require the formal applicationof all of the environmental screens that are partof pre-lease planning for competitive leasetracts. * As a result, environmental protectionmust be achieved largely through mitigation re-quirements (lease stipulations and permit condi-tions). In addition, the program regulations wererevised in 1982 to eliminate requirements for en-vironmental data and analyses in initial showingsfor PRLAs. Establishing uniform procedures for

*The unsuitability criteria are applied to PRLAs either during landuse planning (if the PRLA can be processed in the normal cycleof land-use planning) or during environmental analysis. If the PRLAis incorporated in land use planning, the multiple-use screen alsowould be applied.

environmental evaluation of PRLAs would helpimprove the quality of such evaluations, ensureconsistency among regions (currently lacking),and provide greater predictability to the program.

The relation between the number of PRLAs ina region and the need for new production tractsto meet regional leasing rates also needs to beevaluated. For example, PRLAs in the San JuanRiver Region are estimated to contain one-halfto two-thirds of the surface minable coal. Proc-essing these PRLAs could reduce the need forcompetitive leasing in that region. Thus, thatprocessing should be included as an alternativeto competitive leasing in regional lease sale EISs,as well as be subject to an independent environ-mental assessment.

Chapter 3

The Federal Coal Management Program

.

Chapter 3

The Federal Coal Management Program

The Federal coal management program was de-veloped in the legislative context of statutes thatspecifically address the leasing of federally ownedcoal as well as those related to public land man-agement and environmental protection in gen-eral. These include the Federal Coal LeasingAmendments Act of 1976 (FCLAA), the FederalLand Policy and Management Act of 1976 (FLPMA),the Surface Mining Control and Reclamation Actof 1977 (SMCRA), the National EnvironmentalPolicy Act of 1969 (N EPA), the Clean Air and Wa-ter Acts, and numerous other “environmental”laws.

In 1979, consensus was reached among theparticipants in the leasing program debate on theelements of an environmentally (and economical-ly) sound program. The Department of the in-terior (DOI) incorporated these elements in reg-ulations implementing FCLAA and FLPMA in Julyand August 1979. In 1982 and 1983, these regula-tions were revised to reflect a shift in depart-mental policy toward making more coal availablefor lease, to eliminate duplicative requirementsand those DOI felt were not well understood, andto streamline the process in order to facilitate

lease sales. While the basic program structuredescribed below is essentially the same underboth the 1979 and 1982 programs, some of the1982 changes were sufficiently different from the1979 rules as to severely weaken the earlier con-sensus.

This chapter describes the legal and regulatorycontext for planning and environmental assess-ment in the Federal coal management program.The chapter reviews the applicable statutes andregulations, describes the basic program ele-ments, outlines the major differences betweenthe 1979 and 1982 programs, and analyzes theimplications of those differences for the leasingprogram’s ability to assure the development ofleases in an environmentally compatible manner.The following chapter discusses specific issuesthat have arisen about the implementation of theenvironmental protection aspects of the leasingprogram, in five Western coal regions (see fig. 1in ch. 1). While this chapter focuses on leasing,it also briefly describes the basic elements of thebroader coal management program, especiallythe surface mine permitting requirements.

THE COAL LEASING PROGRAMBetween 1920 and 1970, Federal coal was

leased on demand; i.e., wherever and wheneveranyone requested a lease sale or permit. In 1970,a Bureau of Land Management (BLM) study foundthat although the amount of Federal coal underlease had increased dramatically during the1960’s, production from Federal leases had de-clined significantly (1). That study ultimately ledto a moratorium on further leasing of Federalcoal, and DOI began developing an improvedlong-term coal leasing program (see ch. 1).

Congressional hearings, public debate, and sev-eral lawsuits in the 1970’s focused on whetherFederal coal leases were being held for specula-

tion, and whether enforcement of lease condi-tions of diligent development and continued op-eration was effective. Other aspects of the debatesurrounding the elements of a new leasing pro-gram involved its compatibility with planning forpublic land management and with environmentallaws and regulations (see ch. 1).

These efforts culminated, in 1976, with enact-ment of the FCLAA and the FLPMA. FCLAA re-pealed the noncompetitive preference right leas-ing system (see below) and required that all newleases be issued competitively; provided that nobid can be accepted for less than the fair marketvalue of the lease; facilitated the consolidation

33

34 • Environmenftl Protection in the Federal Coal Leasing Program

of leases into logical mining units for maximumeconomic recovery; and required diligent devel-opment and continuous operation on each lease.

Of particular relevance to environmental pro-tection is section 3(a) of FCLAA, which requiresthat lands considered for leasing shall have beenincluded in a comprehensive land use plan andthat lease sales be compatible with that plan. Thecomprehensive land use planning procedures de-veloped by DOI to implement section 3(a) ofFCLAA are based on the mandates in FLPMA.

In FLPMA, Congress established national pol-icy requiring a multidisciplinary and comprehen-sive Iand use planning process that maintains anup-to-date inventory of public land resources, giv-ing priority to the designation and protection ofareas of critical environmental concern; projectsall potential future uses of public lands andresources (not just coal development); and identi-fies opportunities for the development or conser-vation of particular resources, considering therelative scarcity of the resource values involvedand the availability of alternative means for real-ization of those values. This land use planningis to be guided by the principles of multiple useof lands and resources, sustained yield of renew-able resources, and conservation of depletableresources. In addition, FLPMA requires publicland management to protect the quality of scien-tific, scenic, historical, environmental, air, andwater, and archaeological values, including“areas of critical environmental concern”; to pre-serve certain lands in their natural condition; toprovide food and habitat for fish and wildlife anddomestic animals; and to provide for outdoorrecreation and human occupancy and use (43USC 1701 (a)(8)). Planning activities must be coor-dinated with those of other Federal, State, andlocal agencies; and must afford the public ade-quate opportunity to comment upon the manage-ment of public lands.

Based on these general planning mandates, theFederal coal leasing program was structuredaround an initial comprehensive land use plan-ning process which applies to all Federal landsand all resources on those lands, followed by“activity” planning for the development of fed-erally owned coal resources. Figures 6 and 7 il-

lustrate the leasing process under the 1979 and1982 programs, respectively. The leasing programapplies to new production tracts, bypass tracts(a {ease needed to prevent leaving “islands” ofunmined coal), and maintenance tracts (neededto continue operations at an existing mine). Inaddition, some aspects of the program apply toleases issued before 1976 and to leases issuedunder the noncompetitive preference right leas-ing system (see below).

A decision to offer a tract for lease is made inthe context of a “tiered” system of planning andanalysis, in which the level of analytical detail in-creases over time, while the area being evaluateddecreases (see fig. 2 inch. 2). Thus, early in theprocess when few data are available, large landareas are classified according to their relativevalue for development of the full range of re-sources. Lands that are identified as potentiallysuitable for coal leasing at this stage are then sub-jected to increasingly detailed analyses as thelands move closer to actual coal development.

The most detailed analysis prior to mine devel-opment occurs after a lease has been issued,when the lessee files an application for a surfacemining permit, supported by an exhaustive pro-posed mining and reclamation plan. This finalstage in the tiered system reflects the limited Fed-eral agency resources by placing the burden forthe most detailed data collection and analysis re-quirements on the lessee. Environmental protec-tion measures after a mine is opened include in-spection and enforcement to ensure that miningand reclamation are in compliance with the per-mit and approved plan.

Land Use Planning

The principal objective of the land use plan-ning process is to establish a multiple resourceuse management strategy for each of the “plan-ning units” set up by DOI for the administrationof public lands. * This is accomplished through

*It should be noted that many of the land use planning re-quirements described below also apply to other agencies who man-age Federal lands overlying coal deposits (e.g., the U.S. Forest Serv-ice). The land use planning schedules and priorities within theseagencies need to be coordinated closely with BLM’s planning forlease sales.

Ch. 3—The Federal Coal Management Program • 35

Figure 6.—1979 Coal Leasing Program

(To activity planning) Activity Planning

(From land use planning)

I I

(To sales procedures)


Figure 6.-1979 Coal Leasing Program-ContinuedSales Procedures

(From activity planning)

1

SOURCE: Bureau of Land Management, Federal Coal Management Program,Final Environmental Statement, April 1979.

oI

Land use planning

Figure 7.—Current Coal Leasing Process

Activity planning

I


Figure7.—Current Coal Leasing Process-Continued

I

Figure 7.—Current Coal Leasing Process-Continued7

1 1I

I

Development

I

SOURCE: Bureau of Land Management.

●


identification of all potential land uses and of op-portunities for the development of particularresources based on their relative values (see fig.7). Coal development is one possible land use,and, during land use planning, four screens areused to identify the acceptability of public landsfor further consideration for coal leasing. Thesescreens focus on coal development potential, theenvironmental acceptability of lands for mining,multiple use management, and surface ownerpreferences about mining (where BLM does notown the surface). Based on the results of the ap-plication of these four initial screens, lands deter-mined to be acceptable for further considerationfor coal development are carried forward intoactivity planning for leasing.

Land use planning is preceded by a certainamount of in-house planning by BLM staff, whoreview basic procedures; identify issues and esti-mate their relative significance; perform literaturesearches and organize data available in-house;make initial contacts with other affected agen-cies and organizations; analyze a range of possi-ble regional coal production targets; etc. Basedon these and other tasks, BLM field personnel es-timate the time needed to complete land use andactivity planning and prepare for a lease sale. Thefield staff’s recommendations on scheduling arereviewed and passed on to the Secretary, whoestablishes a lease sale target schedule. All BLMpersonnel and other affected agencies are ex-pected to adhere to this schedule throughout theleasing process (see discussion of “Regional Leas-ing Rates” in ch. 4).

The coal development screen begins with anannouncement to the coal industry, the public,other Federal agencies, State and local govern-ments, and Indian Tribes, calling for informationidentifying major issues related to resource useand protection within a BLM planning unit. Thisinitial, general call. for information is supple-mented by a formal solicitation (through a Callfor Coal Resource Information) of industry “in-dications of interest” in leasing coal and indus-try information on coal resource developmentpotential (43 CFR 3420.1-2(a)). Based on the re-sponses to these requests for information, landsare categorized according to their coal develop-ment potential (based on such factors as quality

of coal, depth of seam, thickness of overburden,etc.) and lands with no such potential are notconsidered further for leasing (43 CFR 3420.1-4(e)(l)).

This screening procedure has been criticizedbecause the 1982 regulations allow lands with a“low” coal development potential to be carriedforward along with those having moderate tohigh potential. Low development potential landswould have been screened out under the 1979regulations. Including such lands in later analy-ses expands BLM’s workload because more landwould then have to be analyzed in subsequentstages of land use and activity planning. Further-more, if lands with low coal development poten-tial are leased, it could result in inefficient miningand increase the risk of adverse environmentalimpacts in some areas because more surfaceacres would have to be disturbed per ton of coalextracted. Under other circumstances, however,lands with low development potential could befavorably located with regard to transportationor could be needed to complete a logical min-ing unit. The inclusion of low coal developmentpotential lands also could promote flexibility toadjust to changing market conditions and min-ing technologies. Where these factors are pres-ent, carrying such lands forward for further anal-ysis seems reasonable.

The acceptability of lands for mining is as-sessed based on 20 criteria described in the pro-gram regulations. Several of these criteria weremandated or suggested in SMCRA, several em-body requirements under other Federal statuteswhich DOl chose to enforce through the unsuit-ability criteria review process (e.g., the En-dangered Species Act), and some DOI selectedon the basis of its judgment of their merits. Eachof the criteria is applied to all coal lands iden-tified in the land use analysis as having develop-ment potential. If one or more criteria are foundto apply in a particular area, exceptions and ex-emptions to the applicable criteria are analyzedto see if they pertain. If they do not, the landeither will be considered unsuitable for furtherconsideration for leasing, or other mitigation re-quirements will be imposed through proposedlease stipulations (see “Mitigation Requirements”in ch. 4).

Ch. 3—The Federal Coal Management Program Ž 41

The 20 unsuitability criteria are:

1.

2.3.

4.

5.6.

7.

8.

9.

100

11.

12.

13.

14,

150

16.

lands in the Federal land preservation sys-tem (e.g., National Parks, Wildlife Refuges,Trails, Wild and Scenic Rivers, RecreationAreas, Wilderness Areas);lands within rights-of-way or easements;lands within 100 ft of cemeteries and rights-of-way for public roads, or within 300 ft ofpublic and residential buildings;wilderness study areas, while under reviewfor wilderness designation;Class I scenic areas;lands used for scientific studies involvingfood or fiber production, natural resources,or technology demonstrations and exper-iments;publicly owned places on Federal landswhich are listed on the National Registerof Historic Places;lands designated as natural areas or as Na-tional Natural Landmarks;federally designated critical or essentialhabitat for threatened or endangered plantand animal species;lands containing habitat considered criticalor essential for State-designated threatenedor endangered plant and animal species;bald or golden eagle nests or sites, includ-ing appropriate buffer zones that considerhabitat for prey species;bald and golden eagle roost and concen-tration areas used during migration andwintering;falcon cliff nesting sites and appropriatebuffer zones that consider prey species’habitat;high priority habitat for migratory birdspecies of high Federal interest on a region-al or national basis;essential habitat for resident fish and wild-Iife species of high interest to the State (e.g.,active dancing and strutting grounds forsage grouse, sharp-tailed grouse, and prai-rie chicken; critical winter ranges for deer,antelope, and elk; and migration corridorsfor elk);lands in riverine, coastal and special floodplains (100-year recurrence);

17.

18.

19.

20.

lands committed by the surface manage-ment agency to use as municipal water-sheds;natural resource waters identified in Statewater quality management plans and a buf-fer zone of one-quarter mile from the outeredge of the far banks of the waters;alluvial valley floors (AVFs) considered im-portant for agriculture, or land outside anAVF if mining would materially damage sur-face or underground water systems thatsupply the AVF; andlands deemed unsuitable by criteria pro-posed by a State and adopted by the Sec-retary of the Interior in rulemaking.

These criteria apply primarily to lands evaluatedfor leasing for surface mining since 1976 (i.e., afterpassage of FLPMA and FCLAA), subject to the ex-emptions and/or exceptions described below. Inaddition, the unsuitability criteria are applied topreference right lease applications (PRLAs), eitherduring land use planning (if the PRLA is includedin a comprehensive land use plan) or during envi-ronmental analysis (43 CFR 3430.3-1). The un-suitability criteria also are applied to lands thatwill be mined by underground methods, but thecriteria cannot be used to declare such lands un-suitable for mining unless surface operations andimpacts will affect Federal lands to which acriterion pertains (43 CFR 3461 .2).

In the 1979 regulations, the criteria also wereapplied to tracts leased before 1976 but not yetbeing mined, either as part of the normal land-use planning process or during mine plan review.This requirement was eliminated in the 1982 reg-ulations, and such lands now are reviewed forsuitability only under the mandatory suitabilityprovisions of SMCRA (43 CFR 3461 .4-2). The De-partment argues that this change merely elimi-nated a duplicative set of requirements and is inaccord with current policy to interfere as little aspossible with “valid existing rights” and to ex-pedite the planning for new lease sales (4). How-ever, the change is being contested in court be-cause the suitability review required underSMCRA for mine plan review may not be as rig-orous as under the 20 criteria, possibly resulting

42 ● Environmental Protection in the Federal Coal Leasing program

in inadequate consideration of the multiple re-source use implications of coal development inland use plans (see discussion of “UnsuitabilityCriteria” in ch. 4).

The unsuitability criteria also are subject to ex-emptions and/or specific exceptions. General ex-emptions applicable to several criteria include:lands subject to valid existing rights (criteria #l,#3, #4 (limited)); lands to which the operatormade substantial legal and financial commitmentsprior to January 4, 1977 (all except criteria #3,#4, and #19); surface coal mining operations ex-isting on August 3, 1977 (all except criterion #4and #7); and lands for which a mining permit hasbeen issued (all but #3, #4, and #7). All criteriaexcept #4, #5, #6, #15, #16 and #l 9 also are sub-ject to one or more specific exceptions. For ex-ample, the exceptions to criterion #l 1 state thata lease may be issued if stipulations can ensurethat eagles are not disturbed during the breedingseason, or if the Fish and Wildlife Service deter-mines that the nest(s) can be moved; and the sizeof a buffer zone can be decreased if active eaglenests will not be affected adversely (see discus-sion of “Mitigation Requirements” in ch. 4).

In the 1982 regulations, additional exemptionswere added to seven of the unsuitability criteria.Furthermore, the general applicability of the ex-ceptions was expanded. The 1979 regulationsspecified that exceptions should only be consid-ered for areas where there is only one unsuit-ability condition. The 1982 regulations expandedthis to areas where one or more unsuitability con-ditions exist (43 CFR 3461 .3-1 (a)(l)). The com-bined effect of these expansions is to make it lesslikely that an area will be excluded from furtherconsideration for leasing based on the unsuitabil-ity criteria.

A recent (December 1983) change in criterion#7 also has been the target of much criticism.Criterion #7 formerly applied to all sites on Fed-eral lands that were included or eligible for listingin the National Register. This criterion is nowlimited to publicly owned sites on Federal landsthat are listed. Thus, privately owned sites are nolonger protected, yet protection of such siteswas one rationale for establishing the NationalRegister.

It should be noted that neither the 1979 northe 1982 regulations include an unsuitabilitycriterion based on the reclaimability of coal-bearing lands. Such a criterion was consideredearly in the development of the 1979 leasing pro-gram, but was dropped because there is an af-firmative legal burden (under SMCRA; 30 U.S.C.1260(b)(2))) on an applicant for a mining andreclamation permit to demonstrate that reclama-tion is technologically and economically feasible,(2). Thus, the regulations implementing the leas-ing program assume that this requirement will bemet during review of the permit application bythe Office of Surface Mining or the State permit-ting agency (see ch. 4).

The multiple resource use screen is intendedto eliminate lands from further consideration forcoal leasing if other resources on those lands aredetermined by BLM to be locally important orunique. In general, a multiple-use tradeoff isappropriate when one land use (e.g., mining)would absolutely preclude other valuable re-source uses which are not covered by the 20 un-suitability criteria (43 CFR 3420.1-4(e)(3)). BLMonly infrequently uses the multiple-use screen toeliminate lands from further consideration forleasing. According to the Bureau, this is becauselands that might be subject to a multiple-usetradeoff usually already will have been eliminatedfor other reasons (e.g., determination of no coalpotential, application of an unsuitability criterion)(4). However, where multiple-use tradeoffs mightbe appropriate, critics of the leasing program con-tend that BLM generally tends to assign coal de-velopment a higher priority than competing land/resource uses.

The surface owner preference screen requiresthat coal resources underlying privately ownedsurface not be considered for surface mining ifa significant number of the surface owners ob-ject to leasing during the initial consultation withBLM. If underground mining is technically or eco-nomically infeasible, the land could still be con-sidered for leasing, but it must be assigned a lowpriority in ranking compared to lands without sur-face owner conflicts (43 CFR 3420.1-4(e)(4)). Finalsurface owner consents are not obtained until theend of activity planning.

Ch. 3—The Federal Coal Management Program ● 43

Two additional concerns have arisen about thecurrent land use planning process: the timing ofthe application of the four screening procedures,and the elimination of a discretionary fifth screen-ing procedure based on a “threshold” analysisof cumulative impacts (compare the land useplanning portions of figs. 6 and 7). The 1979regulations specified that the four screens beapplied sequentially, in the order listed above.Sequential application of the screens was consist-ent with the concept of a tiered system of anal-yzing lands, in which increasingly stringent envi-ronmental tests would be applied at each stepof the leasing process. The 1982 regulations allowthese four screening procedures to be appliedsimultaneously. Although the screens still are ap-plied, there is concern that scarce BLM time andstaff resources will be diluted evaluating (for ex-ample) surface owner preferences over a largerland area than might have been necessary if theother three screens had been applied first andin sequence.

The 1979 regulations also included a fifth, dis-cretionary, screen that employed critical thresh-old levels of cumulative impacts from the devel-opment of more than one mine within an area.If threshold levels were set, and if it was deter-mined during land use planning that mining onall potential tracts would mean that such a levelwould be reached, BLM was required to halt, sus-pend, or condition further consideration of theaffected area for leasing. This screen was droppedin the 1982 regulations because it had never beenused (4). The BLM District Managers may still in-clude critical threshold levels as one factor to beconsidered in the formulation of the land usealternatives that will be analyzed during land useplanning (43 CFR 1601 .5-4(a) (9)). However,threshold levels of cumulative impacts relative tocoal development are not required to be consid-ered until the lease sale EIS is prepared (seebelow).

The threshold concept had long been a sourceof confusion and had “not proven practical forland use managers” (4). The threshold conceptcould be a valuable tool in both land use plan-ning and tract ranking if it were reinstated in theregulations for these stages of planning and as-sessment. In doing so, BLM should make every

effort to understand the concept and how it couldbe expressed in regulations in a workable and en-forceable manner. Issues related to thresholdanalyses are discussed further in the “Data andAnalysis” section of chapter 4.

The product of land use planning under FLPMAis a document called a “resource managementplan” (RMP), which is to be distinguished fromthe “management framework plans” (MFPs) de-veloped before enactment of FCLAA and FLPMA.RMPs are required, under FCLAA/FLPMA, toidentify and protect Areas of Critical Environ-mental Concern (ACECs); include sufficient op-portunities for public participation; incorporatethe inventorying of public land resources; eval-uate resources from local, regional and nationalperspectives; identify conflicts in resource valuesand uses; and develop and analyze alternativeland/resource use proposals that resolve conflictsthrough decisions on multiple-use tradeoffs. Tofulfill the latter requirement, in particular, RMPsinclude a full EIS on resource management alter-natives, and the NEPA process thus is built intoland use planning decisions from the start, ratherthan coming only at the end of activity planning(the second stage in the leasing process) (43 CFR1601 .7-3).

Preparation of new comprehensive RMPs is alengthy process, and a key issue raised by theleasing program is the continued reliance onamended MFPs, as a basis for land use and activ-ity planning for coal leasing while new RMPs aredeveloped. Due to DOI’s concerns about the oldMFPs’ compliance with FCLAA/FLPMA and theirability to support planning to match current andanticipated resource demands, the 1979 regula-tions set a deadline of December 31, 1984, onthe use of old MFPs in land use planning for newFederal coal lease sales (43 Fed. Reg. 58764). Priorto that date, those regulations allowed leasingbased on an MFP only if it had been amendedor updated to comply with the land use planningstandards established in FCLAA/FLPMA.

The deadline for the completion of new RMPsas comprehensive land use plans to guide leas-ing decisions was eliminated in the 1982 regula-tions, due to BLM’s need to allocate time, staff,and funds to implementing the leasing program.

.


BLM currently is working on RMPs in some plan-ning areas, but RMPs for coal leasing areas werenot completed in time to support first round leasesales, and may not be available to support theplanning for sales that will occur within the nextcouple of years, even though the legislation man-dating their preparation was approved over 7years ago.

Moreover, as discussed in chapter 4, detailedregulatory guidelines for judging the acceptabilityof an amended or updated MFP for new compet-itive leasing (including those requirements listedabove) were deleted and replaced with a generalpolicy statement that BLM could continue to relyon amended or updated MFPs as long as they are“in compliance with the principle of multiple useand sustained yield and shall have been devel-oped with public participation and governmentalcoordination, but not necessarily precisely asprescribed by §§ 1601.3 and 1601.4 of [43 CFR]”(43 CFR 1601 .8( b)(l)). According to DOI thischange was part of the overall effort to eliminateduplicative regulatory requirements and reduceadministrative costs (4). However, this change inthe program also contributed to public uncertain-ty about the program’s ability to ensure environ-mental compatibility.

Several studies, including a 1981 General Ac-counting Office report, entitled Minerals Manage-ment at the Department of Interior Needs Coor-dination and Organization, have found manyMFPs to be deficient with regard to compliancewith current land use planning laws. An exhaus-tive analysis of the legal adequacy of updated andamended MFPs to support planning for coal leas-ing was beyond the scope of this project. How-ever, regardless of whether updating or amendingMFPs brings them within the specific regulatoryrequirements, it is OTA’s judgment that suchamended plans cannot provide the sort of com-prehensive “fresh-start” planning envisioned bythe legislation, especially areawide resourcemanagement planning based on the evaluationof alternatives in an EIS (as opposed to the cur-rent program, in which an EIS is prepared onlyduring activity planning). On the other hand,where updated or amended MFPs are legally ade-quate, replacing them with RMPs would leaveBLM open to charges of “planning for planning’s

sake” —something the Bureau frequently hasbeen accused of in the past.

Activity Planning and Lease Sales

After general resource planning for a manage-ment area is complete, subsequent planning fo-cuses on a specific activity-in this case coal leas-ing. Like land use planning, activity planning ispredicated on a tiered system of increasinglydetailed reviews of smaller and smaller groupsof tracts. As shown in figure 7, activity planningfor a region culminates in a Secretarial decisionon the tracts and tonnages to be offered for leaseand the schedule for lease sales in that region.

Information from land use planning aboutareas’ acceptability for mining, plus formal indus-try expressions of interest in particular areas, areused to develop initial draft leasing levels and todelineate tracts. States and the public also maysuggest coal land they deem particularly accept-able or unsuitable for leasing. When proposedtracts have been delineated, BLM field staff con-duct a site-specific analysis (SSA) of the full rangeof environmental, social, economic, and otherresource values on each tract. The SSAs providethe basis for detailed tract profiles, which are usedto select combinations of tracts for analysis in theEIS (see below). DOI may establish the final re-gional leasing level at any time after the call forindustry expressions of interest but before theselection of EIS alternatives (43 CFR 3420.3 etseq.).

The SSA generates the greatest level of detailof information about a tract available to DOIbefore a lease sale. According to the program-matic EIS for leasing, “the information . . . mustbe sufficiently detailed so that the Departmentwould be reasonably certain that the lease wouldbe economically and environmentally accept-able, but in less detail than would be requiredof a lessee at the time a mining plan would beapproved” (2). For example, the hydrologic anal-ysis in a tract profile could be based on fieldsampling pursuant to a scaled indexing system;the cultural resource assessment could incor-porate a comprehensive literature search forknown resources (or a 10 to 25 percent fieldsurvey in areas about which no data are avail-

Ch. 3—The Federal Coal Management Program . 45

able). In practice, however, time, staff, andbudget constraints have meant that these levelsof data have not always been achieved on tractsanalyzed for recent lease sales (see discussion of“Data and Analysis” in ch. 4).

Following preparation of the tract profiles, theRegional Coal Team (RCT)* ranks tracts accord-ing to their acceptability for leasing after consider-ing factors such as coal economics, impacts onthe natural environment, and socioeconomic im-pacts (43 CFR 3420.3-4). Tract rankings and SSAsdo not necessarily affect tract delineation,although tract boundaries can be adjusted as theresults of SSAs or tract rankings, or tracts may bedropped altogether at this stage.

The RCT uses these rankings to select at leastone combination of tracts that approximates theregional leasing level, plus tract combinationsrepresenting alternative leasing levels. These mustinclude a “preferred alternative” that optimizesthe economic and resource benefits of leasingand minimizes the social and environmentalcosts. The RCT may adjust the tract ranking andselect tracts to reflect a variety of considerations,including the compatibility of coal quality, coaltype, and market needs (including industry ex-pressions of interest); environmental and socio-economic impacts; the compatibility of reservesize and demand distribution for tracts; publicopinion; avoidance of future emergency leasesituations; and special leasing opportunity re-quirements (43 CFR 3420.3-4(b)(2)). (Although therevised leasing regulations only require the RCTto select one combination of tracts that meets theregional leasing level, NEPA mandates the consid-eration of alternatives to a proposed action, and,in practice, the RCTs usually select several com-binations of tracts.) As discussed in chapter 4,some opportunities for public and interest groupparticipation are afforded throughout tract rank-ing, the selection of alternatives, and the devel-opment of leasing levels.

*The Regional Coal Team is a DOI/State organization made upof a representative of the Governor from each State in the regionand the BLM State Director from each State involved. Each RCTis chaired by a BLM State Director from a nonaffected State (seech. 4 for a detailed discussion of the role of RCTs).

The environmental impacts of the leasing alter-natives, including the preferred alternative, arethen assessed in detail in an EIS (see discussionof environmental protection, below). A draft EISis published, and after public comment and inter-agency review, is revised and issued as a final EIS.As a part of the tiered system, the data and anal-yses needed to prepare the EIS expand on theinformation in the SSAs and tract profiles, butfocus on particular combinations of tracts. Leasestipulations to protect environmentally sensitiveareas may be proposed in the EIS (see “MitigationRequirements” in ch. 4).

Following publication of the final EIS, writtensurface owner consent is confirmed, and the Sec-retary begins formal consultations with the af-fected State Governors and the surface manage-ment agency prior to approving a combinationof tracts and tonnages to meet a regional leasinglevel and establishing final dates for maintenance,bypass, and new production tract lease sales.Then DOI issues a notice of lease sale, performsthe economic evaluation, and holds the sale.

The major issues posed by the activity planningfor recent lease sales are the lease sale rates–orthe ratio of regional leasing levels and lease saleschedules—and the ability of the tract rankingsand selection of alternatives to reflect data inade-quacies and cumulative impacts. These issues arediscussed in detail in chapter 4.

Post-Leasing

After a lease is issued, but before coal miningmay begin, lessees must submit a detailed per-mit application, including a mining and reclama-tion plan, either to the State permitting agency(in States with approved programs under SMCRA)or to the Office of Surface Mining, or, where themine would involve Federal lands, to both. Prep-aration and review of the mine plan and permitapplication is the last step in the tiered systemof environmental assessment in the Federal coalmanagement program. At this stage, extensivetract-specific data and analyses are provided bythe permit applicant and the proposed methodsof mining and reclamation, the potential environ-mental impacts, and the recommended impact

46 ● Environment/ Protection in the federal Coal Leasing Program

mitigation techniques are described in detail. Forinstance, tract-specific cultural resource analysesin support of a mine plan might be based on a100 percent inventory in areas where such re-sources are considered important (e.g., the SanJuan River Region). Recommended techniquesto mitigate the potential adverse environmentalimpacts of mining are derived from these exten-sive data bases and analyses and, if not alreadycovered by lease stipulations, are included in themine plan or in permit conditions (see “MitigationRequirements” in ch. 4). If the potential impactsof issuing a permit are considered significantlydifferent from those projected when the lease wasissued, an EIS also is supposed to be preparedat this stage.

Once a mine pIan and permit application areapproved, construction of a coal mine may begin.The permitting agency has the authority to refuseto issue a permit for environmental or other rea-sons, but in practice, decisions at this stage are

intended primarily to accommodate mining, andno tract has ever been denied a permit, althoughportions of tracts have been excluded from min-ing, and in a few instances permit applicationshave had to be submitted more than once beforebeing approved. Following the onset of mine de-velopment, compliance with the terms of leasesand and permits is monitored through inspectionand enforcement programs.

As noted previously, analysis of the adequacyof environmental protection measures after alease is issued was beyond the scope of this as-sessment. However, several recent reports havebeen critical of the ability of permitting and en-forcement programs to ensure adequate environ-mental protection. Such criticism reflects on theadequacy of the leasing program due to the ex-tent to which final decisions on impact mitigationare deferred from the leasing program to the per-mit stage and beyond (see “Deferral of Decision-making” in ch. 4).

PREFERENCE RIGHT LEASE APPLICATIONS

The Mineral Leasing Act of 1920 originally es-tablished two leasing mechanisms: competitivebidding for lands known to have commerciallyvaluable coal deposits, and preference right leas-ing for unexplored areas. Under the preferenceright leasing system, exclusive prospecting per-mits could be converted to leases if commercialquantities of coal were discovered. FCLAA endedthe preference right leasing system (except forlease applications and prospecting permits thatwere in effect on passage of the act) on the basisthat it did not grant the public a “fair return” oncoal. Most of the preference right lease applica-tions (PRLAs) were not processed during the leas-ing moratorium of the 1970’s. The 1979 and 1982program regulations set a deadline of December1984 for their final disposition. Currently, about133 PRLAs are still pending–many since the late1960’s.

The PRLA system was effective in encouragingexploration of undeveloped Federal coal landsat industry’s expense. Prospecting permits al-lowed the applicant, at his own expense, to con-

duct exploratory drilling to determine if the per-mitted lands contained “commercial quantities”of coal. Thus, the PRLA system not only enabledthe Federal Government to determine the “exist-ence” or “workability” of Federal Western coaldeposits, it also served the interests of industryby guaranteeing a lease to a company or prospec-tor who discovered commercial quantities of coalin the permit area. However, as noted above, thesystem was criticized for not providing a fair re-turn on Federal coal leases and was abolished in1976, subject to valid existing rights.

Before a PRLA can be converted into a lease,the applicant must first successfully complete an“initial showing” providing basic informationabout the nature, existence, and environmentalsetting of coal deposits discovered during the 2-or 4-year period covered by the prospecting per-mit (43 CFR 3430.2-1). BLM then analyzes the ap-plication in detail, and prepares either an envi-ronmental assessment (EA) or a full EIS. Thesecond or “final showing” is to demonstrate thatthe tract contains commercial quantities of recov-


erable coal. In determining the potential for prof-itable mining, BLM must consider comprehen-sive information on estimated revenues and allcosts, including those related to compliance withenvironmental laws, in addition to mining andtransportation costs (43 CFR 3430.4). If the stand-ard of commercial quantities (and other require-ments of the Mineral Leasing Act) is met, thecourts have held, in NRDC v. Berklund, that alease must be issued (6). The Court added, how-ever, that the costs of meeting environmental pro-tection requirements should be considered whenapplying the commercial quantities test and thatpreference right lease issuance procedures mustcomply fully with NEPA, including the prepara-tion of EAs or EISs.

Under the current DOI program for environ-mental analysis of PRLAs, they are not necessarilysubject to all of the four screens applied to po-tential competitive leases during land use plan-ning. The unsuitability criteria must be appliedto PRLAs either during the normal course of landuse planning (if the PRLA can be processed onthe same schedule as a comprehensive land useplan) or during environmental analysis. The mul-tiple-use screen only is applied if the PRLA canbe processed during the normal cycle of land useplanning (43 CFR 3430.3-1).

The combined effect of the Berklund decisionand the DOI procedures for processing PRLAsmeans that environmental protection in the de-velopment of mines on PRLA tracts must be ob-tained through mitigation requirements in leasestipulations and/or permit conditions (see ch. 4).As with a lease issued competitively, approval ofa PRLA does not constitute a right to mine, andthe lessee still must obtain a surface mining per-mit based on a mining and reclamation pIan.

The stipulations imposed on a PRLA can havea significant impact on its development poten-tial. Final showings must reflect the effects thatproposed lease stipulations are expected to haveon the “commercial quantities” test. In San Juan,the first lease stipulations for PRLAs were devel-oped as a result of the draft Environmental Assess-ment for Coal Preference Right Leasing in spring1981. More stipulations were developed and theearlier ones refined when PRLAs were incorpo-

rated in the second regional draft EIS in fall 1983(5). AS a result of these stipulations, industry hasbeen required to revise its proposed mine designsand the “final showings” based on them. Con-sequently, all showings submitted to date maybe considered preliminary, and BLM may requestnew “final showings” based on the current stip-ulations (3). Further revisions could be possibleas additional data on environmental compatibilityare collected within the region (which has notyet held a first round lease sale). BLM has deter-mined that approximately 45 percent of the areacovered by the 26 PRLAs pending in San Juan isacceptable for surface mining (5), but controversysurrounds the six PRLAs that underlie WildernessStudy Areas (WSAs) (see fig. 8).

While many legal, administrative, and proce-dural issues related to the PRLAs have been ad-dressed by DOI and the courts, a number of newquestions are likely to arise as the applicationsare processed. It is clear that the amount of an-nual coal production from PRLAs could be sub-stantial. However, in recent years, environmentalassessment and planning for PRLAs has engen-dered a considerable amount of controversy.Much of the debate focuses on what criticsperceive as the failure of the present PRLA proc-essing system to give full consideration to envi-ronmental values. Because there was no compre-hensive land use planning mandate when PRLAswere issued, they would only be analyzed in thecontext of such plans if they are included in cur-rent planning efforts. Yet the program regulations(both the 1979 and 1982 versions) allow BLM toprocess PRLAs outside the cycle of ongoing com-prehensive land use plans if including them ina plan would mean delaying their processing be-yond December 1, 1984.

This land use planning exemption, coupledwith the lack of pre-lease screening procedures(except for the unsuitability criteria), raises doubtsabout the ability of the PRLA program to mini-mize the environmental risk of issuing preferenceright leases. As in other instances where finaldecisions on environmental protection and im-pact mitigation are deferred to the mine planstage, considerable doubt surrounds the willing-ness of regulatory agencies to deny a permitrather than accommodate mining decisions.


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Ch. 3—The Federal Coal Management Program • 49

A second source of controversy is the differ-ences in specificity between the 1979 and 1982regulations about the contents of environmentalreviews required to comply with the Berklunddecision. The 1979 regulations required appli-cants, as part of their “initial showing,” to pro-vide a brief description of existing land uses onand adjacent to the PRLA; known geologic, vis-ual, cultural, or archaeological features on thetract; and known wildlife habitat and habitats ofthreatened or endangered plant and animal spe-cies that may be affected by mining operations.Moreover, the 1979 program required an initialshowing to include a brief description of plannedmeasures to prevent or control fire; to mitigateor prevent soil erosion, ground and surface wa-ter pollution, damage to wildlife or its habitat, airand noise pollution, hazards to public health andsafety, and impacts to the social and infrastruc-ture systems of local communities; as well as adescription of any plans the applicant might wishto submit pertaining to proposed reclamationprocedures. All of these requirements were elim-inated in 1982, and replaced with a blanket state-ment authorizing the Department to request orthe applicant to submit any “information neces-sary to conduct an environmental analysis of theproposed mining operation, formulate mitigatingmeasures and lease terms and determine com-mercial quantities” (34 CFR 343 C).2-l (d)).

The 1979 PRLA regulations also specified thecontents of EAs or EISs on PRLAs:

1.

2.

3.

4.

5.

an evaluation of direct and indirect poten-tial impacts including cumulative impactson the physical and socioeconomic envi-ronment;an evaluation of the technical and naturalpotential for reclamation;an evaluation of reasonable alternatives toleasing, including exchange possibilities;recommended lease terms and special leasestipulations to prevent unacceptable envi-ronmental or social impacts; andspecific environmental protection or miti-gation procedures.

In 1982, DOl eliminated these regulations, notingthat such standards would be dealt with throughinternal agency memoranda and directives. To

date, three instruction memoranda concerningPRLA processing and compliance with NEPAhave been issued. Although some BLM officialsfeel that the requirements listed above are stillmet during EA/EIS preparation, some field per-sonnel argue that the departmental proceduresdo not provide sufficient guidance.

The elimination of the guidelines for environ-mental showings and analyses during the proc-essing of PRLAs has captured the attention ofenvironmental groups, who have threatened toreopen the Berklund case. These groups contendthat environmental analyses to date have beeninadequate with regard to discussion of reclama-tion, water resources protection, and the impactof leasing on wilderness areas. Furthermore, envi-ronmental groups argue that those analyses donot include sufficient detail on mitigation tech-niques to assure environmental compatibility, donot define specific lease stipulations, and fail toinvestigate alternatives to leasing such as ex-changes. Proponents of the current (1982) PRLAprogram contend that the requirements for appli-cation of the 20 unsuitability criteria to all PRLAs,preparation of an EIS or EA for all PRLAs, and in-clusion of mitigation requirements in a final show-ing provide adequate environmental protectionprior to leasing–especially given the detailedanalysis at mine plan review.

An additional concern about PRLAs is their sig-nificance to regional leasing levels. For example,in the San Juan coal region, PRLAs are estimatedto contain one-half to two-thirds of the surfaceminable coal (5). In part because it was assumedthat the regional leasing level in the San JuanBasin would reflect the large capacity of PRLAs,BLM’s planning for competitive leasing in the re-gion focused on a relatively limited area. Theunexpectedly high regional leasing level then re-quired an accelerated regional planning effort.This situation was compounded by BLM’s deci-sion to include processing the PRLAs only as a“no action” alternative in the first draft regionallease sale EIS. That decision was criticized widely,and partly as a result, a second draft EIS had tobe prepared which included issuance of thePRLAs in the action alternatives considered. How-ever, the recently issued draft EIS on the Powder

50 ● Environment/ protection in the Federal Coal Leasing Program

River Round Two lease sale also included proc-essing 67 PRLAs in the “no action” alternative.

Since mid-1983, BLM has been reviewing itsPRLA processing procedures, in part in responseto the issues discussed above, but no additionalchanges have been made to the regulations. Un-less concerns about the adequacy of environmen-tal assessment of PRLAs are resolved to the rea-sonable satisfaction of all parties, PRLA processingprobably will be stalled by its critics. This mayinvolve the preparation of EISs for all PRLAs.Under the present discretionary provisions of theregulations, BLM had planned to prepare EAs(rather than EISs) in processing most PRLAs.

Among environmental groups, this was a causefor concern because of the diminished scope,preparation requirements, and public involve-ment required for EAs as compared with EISs. Thisposition has now changed, and the Bureau re-ports it is preparing EISs for “most” PRLAs (4).Further, it may be necessary to require that allPRLAs be incorporated in land use and activityplanning in order to ensure adequate environ-mental protection, even though the courts haveruled that this is not necessary under present lawsand regulations. Consequently, congressional ac-tion may be required if further stalling of the proc-essing of PRLAs is to be avoided.

ENVIRONMENTAL PROTECTIONIn addition to the specific requirements of

FCLAA and FLPMA related to planning and envi-ronmental assessment, a wide range of other lawsprovide the context against which environmentalcompatibility is judged. Some of these laws areincorporated in the leasing process directly (e.g.,unsuitability criteria derived from the SurfaceMining Act, or the Endangered Species Act),while others are addressed primarily during mineplan review (e.g., Clean Air Act). These are listedbelow. A more detailed discussion of the SurfaceMining Control and Reclamation Act, the Nation-al Environmental Policy Act, and the Clean Airand Water Acts, and how they affect the Federalcoal Ieasing program may be found in appendix A.

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Act of September 28, 1976: Provides for theregulation of mining activity within, and torepeal the application of mining laws to,areas of the National Park System.Antiquities Act of 1906: Regulates anti-quities excavation and collection (includingfossil remains).Archaeological and Historical PreservationAct of 1974; Archaeological Salvage Act:Provides for recovery of data from areas tobe affected by Federal actions; provides forpreservation of data (including relics andspecimens) at every Federal constructionproject.

Bald Eagle Protection Act of 1969: Protectsbald and golden eagles.Clean Air Act: Establishes air quality stand-ards; sets requirements for areas failing tomeet standards; provides for prevention ofsignificant deterioration of air quality inclean air areas; may require a Federalpermit.Clean Water Act: Establishes water qualitygoals and requires States to set standards formeeting those goals; imposes effluent limita-tions on discharges from point sources; re-quires permits for discharges.Endangered Species Act of 1973: Protectsendangered and threatened species and crit-ical habitat affected by Federal actions; re-quires prior consultation with Fish and Wild-life Service.Fish and wildlife Coordination Act of 1934:Requires consultation about water resourcedevelopment actions that might affect fishor associated wildlife resources.Historic Preservation Act of 1966 (asamended): Establishes systems of classifyingproperties on or eligible for inclusion on Na-tional Register of Historic Places; mandatesFederal agency consultation with AdvisoryCouncil and State historic preservation of-ficers.


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Migratory Bird Treaty Act of 1918: Requiresenhancement and prevention of loss ofmigratory bird habitats.Multiple Use-Sustained yield Act of 1960:Requires management of National Forestsunder principles of multiple use so as to pro-duce a sustained yield of products andservices.National Environmental Policy Act of 1%9:Makes environmental protection part of themandate of every Federal agency; requiresdetailed environmental impact statementsfor major Federal actions significantly affect-ing the quality of the human environment.National Forests Management Act of 1976:Provides for a comprehensive system of landand resource management planning for Na-tional Forest System lands.Noise Control Act of 1972: Requires pub-lication of information on limits of noise re-quired to protect public health and welfare;preempts local control of railroad equip-ment and yard noise emissions.Resource Conservation and Recovery Act:Establishes guidelines for collection, trans-port, separation, recovery, and disposal ofsolid waste.

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Safe Drinking Water Act of 1977: Estab-lishes mechanism for National PrimaryDrinking Water Standards.Soil and Water Resources Conservation Actof 1977: Requires appraisal by Secretary ofAgriculture of information and expertise onconservation and use of soils, plants, wood-lands, etc.Surface Mining Control and ReclamationAct of 1977: Establishes performance stand-ards for environmental protection in surfacemining operations; mandates State permitprograms to ensure performance standardscan be met; allows States to have primaryenforcement responsibility under approvedprograms; requires States to establish pro-cedures for designating areas unsuitable formining; requires surface owner consent onsplit estate lands.Wild and Scenic Rivers Act: Provides forpreservation of certain rivers or portionsthereof in their natural state.Wilderness Act of 1964: Provides for estab-lishment of wilderness reserves; requirespreservation of wilderness areas in an unim-paired condition.

CHAPTER 3 REFERENCES

1. Bureau of Land Management, U.S. Department of 4.the Interior, Holdings and Development of FederalCoal Leases, (Washington, D. C.: U.S. Government 5.Printing Office, 1970).

2. Bureau of Land Management, U.S. Department ofthe Interior, Final Environmental Statement, FederalCoal Management Program (Washington, D. C.:U.S. Government Printing Office, 1979). 6.

3. Bureau of Land Management, U.S. Department ofthe Interior, Instruction Memorandum 83-822:Processing of Coal Preference Right Lease Applica-tion (PRLA) Final Showing, Sept. 9, 1983.

Bureau of Land Management, U.S. Department ofthe Interior, private communication to OTA.Bureau of Land Management, U.S. Department ofthe Interior, San Juan River Regional Coal En-vironmental Impact Statement, Second Draft(Washington, D. C.: U.S. Government Printing Of-fice, 1983).Natural Resources Defense Council v. Berklund,454 F. Supp. 925 (D.D.C. 1978).

Chapter 4

Planning and Environmental Assessmentin the Federal Coal Leasing Program

Chapter 4

Planning and Environmental Assessmentin the Federal Coal Leasing Program

Several aspects of the current leasing and envi-ronmental protection programs described in theprevious chapter have been criticized as inade-quate to assure the development of Federal coallease tracts in an environmentally compatiblemanner. Specific areas of concern relate to therole of regional leasing rates, the adequacy of pre-sale data and analyses, the application of the un-suitability criteria, the use of mitigation measures,the deferral of decisionmaking, the role of Re-gional Coal Teams (RCTs), the effectiveness ofpublic participation, the special concerns of af-fected Indian Tribes, the applicability of the pro-gram to areas in which the Federal Governmentdoes not own the surface (split estate leasing),and the use of lease exchanges to reduce envi-ronmental risk.

This chapter documents the concerns that havearisen about these aspects of the leasing program.The chapter begins with an overview of the ex-pectations about the program held by the various

participants in leasing. These expectations areone context against which the validity of concernsis assessed. The remaining sections of this chapterdiscuss each of the issue areas listed above.

It should be noted that there are other, nonen-vironmental, criticisms of the current leasing pro-gram. The allegations that the government didnot receive fair market value for the coal on leasessold since 1981 and other economic issues wereaddressed by a specially appointed AdvisoryCommission on Fair Market Value Policy for Fed-eral Coal Leasing and are not discussed in thisreport. Criticisms related to the assessment ofsocioeconomic and community impacts and ofthe effects of coal conversion facilities (e.g.,powerplants and synfuels plants), and issues sur-rounding surface owner consent, generally wereconsidered beyond the scope of this study, unlessthey were found to be inseparable from environ-mental concerns,

EXPECTATIONS FROM THE LEASING PROGRAMParticipants in the Federal coal leasing program

(including the Bureau of Land Management–BLM, coal companies and mine operators, States,special interest groups such as Indian Tribes andenvironmental organizations, and the public)have definite–and sometimes conflicting–ex-pectations of the program’s environmental plan-ning and assessment. Some of these expectationsfocus on program policy as set out in legislation,while others relate to the manner in which theprogram is implemented in regulations and inpractice. Controversy arises when the expecta-tions of one or more parties are not fulfilled, orwhen the parties disagree about whether an ex-pectation is reasonable or is being met.

The controversies characterized by the differ-ing expectations can be divided into four generalareas. They are: program predictability and sta-bility, program administration, program imple-

mentation, and public participation. This sectiondescribes those expectations and discusses pointsof agreement and disagreement. Because this dis-cussion of expectations incorporates most of themajor issues, it serves to introduce those issues,which are analyzed separately in more detail insubsequent sections of this chapter.

Program Stability and Predictability

There is a general expectation among the par-ties to the leasing process that it will be stableand predictable, and that its legal and regulatoryframework will remain essentially unchanged giv-en the time and effort that went into forging aconsensus on the adequacy of that framework.Stability and predictability in methods of assess-ing environmental compatibility lend assurancesthat environmental decisions will be consistent

55


among regions and over time. Furthermore, sta-bility and predictability in the program as a wholeare needed by the industry, BLM, other Federaland State agencies, local communities and resi-dents, and interest groups for their business andadministrative planning.

One important stabiIity/predictability expecta-tion common to all parties is that the leasing pro-gram will not be driven by political or interestgroup priorities, which can change over relativelyshort periods of time. When the interests of twoor more parties conflict, and each desires its in-terests to be accommodated, it is necessary thatthe program strike compromises in an impartialmanner. Problems arise when one party is or ap-pears to be uniquely able to control or drive theprogram (e.g., when only a coal company hasaccess to a particular data set or when a lawsuitis threatened). Another problematic circumstancearises when BLM planning decisions made at theDistrict or State Office level are overridden inWashington, D.C. (whether by the executive orlegislative branch) for political or other reasonsunrelated to the leasing program. The major con-cern is that these reasons, even if a desired goalis achieved, cannot be depended on to be in-voked consistently in the future if needed, or maybe invoked to reach a decision that is inconsist-ent with overall program goals.

A second major expectation about predictabil-ity and stability in the leasing program is that theamount of coal offered, its quality and location,and the timing of its sale will match the indus-try’s need (and/or consumer demand) and willnot unduly strain BLM’s planning and assessmentcapabilities or the resources of local communi-ties and residents. There appears to be generalconsensus that the parties prefer a regular, steadypace of leasing rather than very large offeringsover a short period. Moreover, most parties ex-pect the lease sale schedules to be flexible, suchthat sales could be delayed if pre-sale planningand analysis were not complete.

Finally, there is a general expectation that BLMwill maintain a stable staff resource for regionalplanning functions. Concern has been expressedby all parties to the leasing program that attritionwithin BLM, as well as the Bureau’s practice of

rotating field personnel every few years, preventthe development of an “institutional memory. ”This contributes to data inadequacy and hindersmaintenance of continuity in public participation.Moreover, with recent budget and staff cutbacks,there is concern among some parties that BLMwill not be able to maintain the field expertiseneeded for land use and activity planning.

Program Administration

There are three general expectations aboutleasing program policy and the way it is admin-istered. First, that the regulations will be in com-pliance with the legislation; second, that the coalleasing and decisionmaking process will be trans-parent in both theory and practice; and third, thatthe environmental impacts of developing Federalcoal will be assessed before tracts are offered forlease, and only environmentally acceptable tractswill be offered. Substantial disagreement existsamong the parties over whether these expecta-tions are being met.

In the first instance, environmental groups havesued BLM, alleging that the 1982 regulations arenot in compliance with the legislative mandate.Specific concerns include continued reliance onmanagement framework plans (MFPs), the elim-ination of most standards for data adequacy,changes in the scope and application of the un-suitability criteria, relaxation of the diligencerules, inadequate environmental review require-ments for preference right lease applications(PRLAs), the use of a new leasing methodologythat results in far higher leasing levels, and elim-ination of several opportunities for public hearings.

Less polarization exists about the need for thecoal leasing process and the BLM and RCT deci-sionmaking processes to be transparent. All par-ties expect to be able to understand, on a day-to-day basis, what BLM is doing and plans to doin the future, and all parties agree that the de-gree to which this expectation is met variesamong program areas and leasing regions. Insome cases, it is unclear how a decision wasreached due to incomplete documentation (e.g.,a statement such as “the unsuitability criteriawere applied during land-use planning” may be

Ch. 4—Planning and Environmental Assessment in the Federal Coal Leasing Program . 57

the only documentation of those decisions thatappears in an environmental impact statement—ElS). In other cases (e.g., exchanges), the partici-pants find the process difficult to follow becausethe departmental policies or procedures for a par-ticular activity are not codified in the programregulations, are overly vague, or change fre-quently.

There is also general agreement that the envi-ronmental impacts of coal development shouldbe analyzed to some degree prior to the leasesale, but disagreement about what constitutes“adequate” environmental impact assessment(including data and analysis). Few argue that alease should constitute a 100 percent guaranteethat all portions of a leased tract are minable inan environmentally compatible manner; someflexibility is needed to accommodate changingcircumstances, new data, or advances in miningand reclamation techniques. Similarly, few be-lieve that a lease should include no guaranteesabout an operator’s ability to develop and reclaima tract in an environmentally compatible man-ner. In between these two extremes, however,there is much disagreement about the extent towhich a lease indicates a tract to be minable.

Most operators would be pleased to accept alease that constituted a 100 percent guaranteeof minability, but recognize that all businessdecisions–including a bid on a lease sale–in-volve some risks. Thus, the amount bid for a leasetract incorporates an operator’s assessment of theeconomic risk that the permitting agency will finda tract, or a portion thereof, unminable for envi-ronmental reasons post-lease. The industry wouldprefer to accept that economic risk rather thanthe risks posed when coal resources are closedto mining or extensive mitigation measures im-posed pre-lease. However, they do want assur-ances that a tract offered for lease does not con-tain any “fatal flaws” that would absolutely ruleout mine development.

While post-lease permitting provides a finalcheck on environmental compatibility based ona very extensive data base, areas are less likelyto be excluded from mining at this stage. There-

fore, environmental and other interest groupsview the industry’s assumption of the economicrisk as imposing an environmental risk on the“public.” This is the risk that a tract will be leasedand eventually mined with a significant loss ofenvironmental resources, or significant, irrevers-ible damage. Consequently, these groups wouldprefer to see a lease reflect not just an assurancethat there are no fatal flaws on the tract, but aguarantee that all reasonable environmental andother resource values have been identified andanalyzed for regional and national importance,and that if coal mining would significantly reducethe value of important noncoal resources, thenthe tract will not be offered for lease but managedin such a way as to protect those other resources.

The agencies that approve mining and reclama-tion plans and issue mining permits (State regu-latory agencies with approved programs, or theOffice of Surface Mining–OSM) have expecta-tions that are caught between the operators’ andthe interest groups’. On one hand, the regulatorshave a statutory responsibility to assess the envi-ronmental compatibility of coal mining on a par-ticular tract, and would prefer that a decisionwhether to offer a tract for lease does not usurptheir authority to evaluate minability. On theother hand, the regulators don’t want all deci-sions about environmental compatibility passedon to them.

The BLM and the Forest Service also have a stat-utory mandate to assess environmental compat-ibility—both for multiple-use conflicts and the un-suitability criteria—prior to lease sales. Their hopeis that they might have sufficient time and re-sources to fulfill this mandate. Their expectationis that they will be able to screen out the majorproblem areas, as identified by BLM and ForestService staff and regional activists, but will haveto defer many of the difficult decisions—thosewhich require extensive data (e.g., alluvial valleyfloors–AVFs) or technical judgments about mit-igation and reclamation—to the mine plan stage.In some cases, however, BLM has been criticizedby interest groups for deferring more than justthe difficult decisions and therefore increasing theenvironmental risk of leasing.

58 ● Environment/ Protection in the Federal Coal Leasing Program

Program Implementation

Expectations about the implementation of theFederal coal leasing program center aroundwhether BLM’s day-to-day practice is in accordwith the theory of the program—that BLM andthe RCTs implement the spirit of the laws and reg-ulations, not just the letter. Specific concerns inthis area include: that land use planning and tractselection will be based on priorities for differentresource values; that BLM’s data base and anal-yses will support informed decisions about envi-ronmental compatibility; that the interests of allconcerned parties will be dealt with; and thatleasing decisions will be consistent with land useplanning and environmental impact analyses.

The issue of how resource priorities are as-signed and what value is assigned to coal com-pared to other resources is controversial. Duringland use planning, anticipation of a high leasinglevel can unduly influence land use decisions infavor of potential coal development. In environ-mental impact assessment, some parties to theleasing process argue that BLM gives undueweight to adverse impacts, to the detriment ofpotential benefits of leasing and developing Fed-eral coal. For example, in some areas coal devel-opment may play a role in easing unemployment.Furthermore, companies and some States arguethat BLM does not give sufficient considerationto the revenues from leased tracts when weighingthe relative costs and benefits of Federal coal de-velopment. Finally, there is some concern thatBLM’s data and analyses are inadequate to cap-ture the regional importance of particular im-pacts. Thus, they might indicate that a particularcritical habitat will be destroyed if mining pro-ceeds, but not whether it is a unique or commonhabitat in the region. One element of this con-cern is the recent elimination of the thresholdconcept for assessing cumulative regional impactsprior to the EIS.

For tract ranking, controversy arises when atract that is ranked low for environmental values(e.g., reclamation potential) is carried forwardbecause it has a medium or high ranking forcoal resources. Critics of these rankings do notbelieve that the coal resource potential shouldreceive a greater weight than other values. Dis-

putes also result when it is unclear how (orwhether) the various ranking factors are weightedfor importance.

There is a general expectation among partiesto the coal leasing program that BLM’s data baseand analyses must be adequate to make informeddecisions about environmental compatibility, butdisagreement about what is “adequate.” The par-ties also expect BLM to consistently seek out anduse all relevant information about an area (e.g.,from other Federal and State agencies, mineplans, and operating mines), rather than relyingon data available in-house. Finally, there is con-sensus that the Federal land management agen-cies should coordinate their data collection andplanning so that multiple-use decisions are con-sistent among agencies.

Expectations diverge on how leasing decisionsshould accommodate a perceived lack of data.Some parties expect tracts to be labeled “unsuit-able pending study” or dropped from furtherconsideration for a particular lease sale if suffi-cient data are not available to make an informeddecision about environmental compatibility.Others contend that such tracts should be car-ried forward as “acceptable pending study” anduncertainties resolved through the extensive datagathering and analysis involved in preparation ofthe mine plan and permit application. There isconsensus, however, that detailed technical leasestipulations should not be used as a substitute forinadequate data.

Special interest groups expect environmentalissues to be addressed in land use and activityplanning regardless of whether those issues havea constituency or whether they might eventuallybe analyzed by another agency. These groups arecritical of the practice of not evaluating an im-pact area unless someone raises the issue. On theother side of this coin, many parties expect pri-orities to be assigned to issue areas, such that po-tential impacts in major issue areas receive greaterattention than impacts concerning issue areas thatare not anticipated to be significant.

Finally, all groups expect their interests to beconsidered and dealt with, but disagree aboutwhether the interests of other groups are as im-portant as their own. There is consensus that deci-

Ch. 4—P/arming and Environmental Assessment in the Federal Coal Leasing Program c 59

sions made under the leasing program should notusurp the authority of other decisionmakers.Thus, there is general agreement that issueslegally or traditionally belonging to the States(e.g., water rights), the Forest Service (land useand management decisions on National Forestlands), OSM (technical and economic feasibilityof reclamation), or other agencies, should not bedecided by BLM.

Public Participation

Expectations about public participation in theFederal coal leasing program center around boththe opportunities for such participation (e.g.,whether or not hearings are held on particular

subjects), the relative ability of the parties to par-ticipate, and the consideration of public com-ments in leasing decisions.

All participants in leasing expect that the pro-gram will include sufficient opportunities forpublic participation, but the number and scopeof what is offered are controversial. Environ-mental and other public interest groups are es-pecially critical of the recent changes in regula-tions that eliminated four opportunities for publicparticipation: on Department of Energy (DOE)production goals, on draft regional leasing levels,on local community impacts prior to the EIS, andon the application of the unsuitability criteria dur-ing land use planning. As a result of these reducedopportunities, there is no assurance that viewscommunicated to BLM by any of the parties atinterest are “on the record, ” the way they wouldbe if there were a formal opportunity for publiccomments or hearings.

Even when formal hearings or public commentperiods are provided, frustrations still arise on allsides. The public and other interest groups ex-

pect the format, location, and timing of suchhearings or other opportunities for participationwill allow them sufficient and reasonable accessto the process. BLM expects that when they holda public hearing or provide a public commentperiod, interested individuals and groups will par-ticipate on those occasions, and not wait untila decision has been made and then challenge it.

A second source of frustration with public par-ticipation is the perception that the Federal Gov-ernment, when making leasing decisions, at timesignores material provided by various parties. Forexample, in some regions nearly all parties to theprocess provided information indicating that theproposed regional leasing levels were too high,yet only in one region were they adjusted down-ward at all, and then just slightly. Similarly, in-stances can be found where data provided toBLM during land use planning (e.g., on the loca-tion of missile silos) were ignored throughoutmost of the decision process. I n other instances,data provided by the general public have beeninstrumental in the identification of major issueareas (e.g., wildlife habitat in Powder River). Asnoted previously, this problem is exacerbated bypersonnel attrition and rotations within BLM.

Finally, there is a general expectation that allaspects of BLM’s decision making will be suffi-ciently well-documented and clearly explainedin order to facilitate participation by all affectedparties. This expectation includes not only thatthe decisionmaking process itself will be trans-parent (as discussed above), but also that the doc-umentation will be readily available to all inter-ested parties. Unpublished data and analyses onwhich decisions are based, or documents withlimited availability, also lead to frustration by allparties.

REGIONAL LEASING RATES

The regional leasing rate is the ratio of: 1) the coal to be offered for lease during a round of salesamount of coal to be offered for lease; and 2) the in a region —the regional leasing level—is one ofperiod of time during which all the planning and the major decisions made during the activity plan-assessment activities that support a lease sale ning portion of the leasing process, while sched-must be completed. Determining the amount of ules for the planning and analysis that support


a lease sale are set at the outset of activity plan-ning (or at the beginning of land use planning ifan MFP needs to be updated to support leasingdecisions).

In recent years, the regional leasing rates havebeen high because the Department of the Interior(DOI) increased the amount of coal to be offeredfor lease in most regions, while the lease saleschedules have remained fixed. As a result, BLMfield staff did not always have sufficient time foradequate pre-sale planning and environmentalassessment of the large number of tracts to beevaluated.

This section describes the overall process forsetting regional leasing levels and lease saleschedules, discusses the methodologies for as-sessing the demand for coal reserves, and eval-uates the environmental implications of highlease rates.

Regional Leasing Levels

The regional leasing level* is the amount of fed-erally owned coal resources (expressed in mil-lion tons of recoverable reserves) that the Secre-tary of the Interior determines is necessary tomeet the regional demand for coal reserves. Itcan include a “security factor” of at least 25 per-cent to account for uncertainties in data andmethodologies in assuring that there is no leas-ing shortfall. In setting a regional leasing level,the Secretary relies on recommendations andcomments from the applicable State BLM offices,RCT, State Governors, and other interested par-ties (e.g., Indian Tribes). Proposed leasing levelsalso are subject to public review and commentat RCT meetings and through Federal Registernot ice.

Regional leasing levels are addressed twice inthe overall leasing process. First, an initial rangeof leasing levels is established near the start ofactivity planning, following the call for industryexpressions of interest. This range is used as thebasis for selecting alternative combinations oftracts to be evaluated in the regional lease saleEIS. Second, following publication of the EIS, the

*Referred to as a regional leasing “target” under earlier regu-lations.

Secretary determines the amount of coal to beoffered for lease.

The Process

The BLM National Director assigns a lead BLMState Director for each lease sale, who has theinitial responsibility for suggesting a broadly statedrange of draft leasing levels for a Federal coal re-gion. The lead State Director then appoints a Re-gional Project Manager from BLM, who evaluatesland use planning data, coal resource and de-mand information (based on the methodologiesdescribed below), consults with the State Gover-nors’ representatives on the RCTs and proposesan initial range of leasing levels to the lead StateDirector. Following the lead State Director’s ap-proval, the initial range (with supporting techni-cal information) is sent to the RCT members andState Governors for review. The RCT evaluatesthe draft initial range of leasing levels, discussesthem at a public meeting, and recommends apreferred level to the Secretary.

The Regional Project Manager drafts a packagedocument, including the initial range, RCT rec-ommendations, responses to questions and clari-fication of issues raised by the RCT, any new oradditional technical information, and any alter-native ranges, to be given to the Secretary. Theinitial range is not supposed to be altered to con-form with RCT or State recommendations, butcan be updated to reflect the best informationavailable to the Project Manager. Moreover, high,medium, and low projections will be identifiedif a State RCT member so requests.

The Secretary (or his designee, the AssistantSecretary for Land and Minerals Management)then consults with the Secretary of Energy, theAttorney General, affected Indian tribes, and theState Governors, and sets the regional leasing lev-el to be used for the selection of alternative com-binations of tracts to be evaluated in the EIS.

A similar process is followed after publicationof the EIS in making the final decision about howmuch coal is to be offered for lease. The RCT eval-uates the regional leasing level in the context ofthe EIS and other data and analyses developedsince the initial draft range was formulated, dis-cusses the results of their evaluations at a public

Ch. 4—Planning and Environment/ Assessment in the Federal Coal Leasing Program ● 61

meeting, and recommends which tracts shouldbe offered. The Secretary then decides the finalregional leasing level based on: consultations withthe parties listed above; the potential economic,social, and environmental impacts of coal leas-ing, as identified in the final EIS; industry expres-sions of interest; projected regional coal supplyand demand; special opportunity sales; the re-gional level of competition; U.S. coal productiongoals and national energy needs; and other per-tinent factors including land use planning dataand coal resource information (43 CFR 3420.2(b);ref. 1 3).

The Methodology*

As the coal leasing program has evolved, theprocess of setting leasing levels has become morecomplex and more controversial. The most dif-ficult aspect of determining the appropriate re-gional leasing level is projecting regional coalsupply and demand. Prior to 1982, that level wasset by comparing the future demand for coal ina region—as projected by the National Coal Mod-el, an economic model managed by DOE—withthe ability of the capacity of existing and pro-posed mines to meet that demand without addi-tional leasing. Information about capacity wascompiled through a survey of individual minesand tracts. If this analysis projected a shortfall (intons per year), it would be converted to an esti-mate of reserves of Federal coal that should beoffered for lease to fill the gap. The formula in-cluded a “security factor” of 25 percent to allowfor the uncertainties inherent in such projections.

This approach was criticized widely for two rea-sons. First, it was argued that regional leasing lev-els based on projections of consumption couldhave underleasing and anticompetitive effects be-cause they did not allow the industry an adequatecushion of reserves to accommodate future un-certainties in demand—especially in light of theleasing moratorium of the 1970’s. Proponents ofthis theory contended that higher leasing levelswere needed.

Second, the numerous critics of the NationalCoal Model argued that it assumed unrealistically

*The information on methodologies for setting regional leasinglevels is drawn primarily from refs. 5 and 12.

high figures for the future demand for electricity(and thus for coal), and that it incorporated in-accurate assumptions about transportation costs,oil displacement in electricity generation, coal re-serves, and other factors. These criticisms sup-ported lower (or at least unchanged) leasinglevels.

After evaluation of these criticisms and otherpolicy considerations, in 1982 DOI instituted apolicy of leasing to meet current industry de-mand for reserves (rather than future demandfor production). This policy has been defined byDOI as “to offer as much coal as is environmen-tally feasible and consented to by involved sur-face owners and to allow the market to determinewhich tracts are desired for leasing” (12). Otherpolicy considerations in setting leasing levels in-clude preserving opportunities to increase thelevel of competition for Federal coal resources,and giving due consideration to environmentaland socioeconomic impacts (1 2). The effect ofthis policy change was to increase leasing levels.

After several months of discussion with theRCTs DOI adopted six different methodologiesto calculate the current demand for Federal coalreserves: production, inventory, contracting rate,expressions of interest, past sales, and minimumleasing. Each of these methodologies results inan estimate of the annual shortfall in coal pro-duction, which is then multiplied by the prod-uct of the average mine life and the percent ofthe coal reserves that are federally owned to de-rive the leasing requirement stated in recoverablereserves. This leasing requirement may then bemultiplied by an appropriate security factor (25to 100 percent) to insure against underleasing.The six quantitative methodologies are describedbriefly below; appendix B gives the formulas andan example illustrating their use.

These methodologies primarily are used to de-rive the initial draft range of leasing levels at theoutset of activity planning. The results of the for-mulas are then refined based on any new infor-mation, and used to set the final leasing level.However, this timing means that the initial draftleasing level will be based only on the limited in-formation available about tracts from land useplanning. In practice, once the initial range is set,

62 . Environmental protection in the Federal Coal Leasing Program

it is extremely difficult to reduce for environmen-tal reasons.

The BLM Project Manager is expected to useall six of these methodologies to provide as muchinformation as possible to the RCT members.However, the procedures may be modified orsupplemented by the Project Manager as needed.For example, data inputs may be presented inwhatever form is most useful (e.g., a single num-ber, high/Iow estimates, or broad ranges).

The six methodologies rely heavily on BLM pro-jections of mine capacity and coal production fora target year (e.g., 1990, 1995). Capacity is theamount of coal BLM estimates could be producedfrom all mines within a region in the target year(if demand develops) without further Federal coalleasing. Information about annual mine capacityand potential limitations on that capacity is col-lected through a mine- or tract-specific survey.Productive capacity may be limited by coal thatis of unmarketable quality, leases with accessproblems, and PRLAs with issuance problems.However, productive capacity would not be re-duced due to a lack of expected demand for coal,which would be captured in the productionforecast.

Coal production forecasts are based on a vari-ety of published long-range national projections,including those from the National Coal Associa-tion and DOE, as well as region-specific forecastsfrom National Coal Model runs using modifiedassumptions.

The Production Method

The production method of quantifying currentdemand for coal reserves identifies the minimumquantity of coal needed to meet the productionforecast by subtracting projected mine capacityfrom that forecast. This is the same method usedpre-1 982, except that it does not include a secu-rity factor. According to DOI, the primary differ-ences between the production method and thosedescribed below is that it does not take into ac-count industry’s desire to hold coal in a nonpro-ductive status or the need to maintain competi-

tion within the coal industry. Thus, DOI considersthis method to be a “point of reference” on howthe leasing level would have been set under the1979 leasing program.

The Inventory Method

The inventory method allows for nonproduc-ing reserves as a means of dealing with the uncer-tainties in future demand. This methodologyestimates average industry holdings based on asurvey of active regional coal companies’ ratioof reserves to production. The annual shortfallis the product of this ratio and the productionforecast (from the National Coal Model), minusthe regional mine capacity. The inventory meth-od is controversial because the ratio, and thusthe resulting Ieasing level, increases duringperiods of low demand and decreases when de-mand is high (unless the ratio is calculated froma multiyear average). This result seems counterin-tuitive to many critics of the leasing program.

The Contracting Rate

This method focuses on the rate at which coalis being contracted for development in a regionin relation to the total amount of coal that hasbeen leased but not yet developed. It is intendedto calculate a leasing level high enough to en-sure competition (in the DOI example, five bid-ders) for contracts to deliver coal to consumers.However, because this method uses a ratio of re-serves to production, it is subject to the same flawas the inventory method—the weaker the mar-ket, the higher the leasing level established underthe contracting method.

Expressions of Interest

DOI considers expressions of interest to mimicthe marketplace in that they allow each companyto assess its own needs for Federal coal reserves.However, the Department recognizes that even“thorough” expressions of interest–in which thecompany has done extensive work in defining theresource—may overestimate the amount of coalthat the industry will actually be willing to leasefor fair market value.

Ch. 4—P/arming and Environmental Assessment in the Federal Coal Leasing Program ● 63

Past Sales

The past sales method does not result in aquantitative leasing level, but relies on observa-tions of past coal lease offerings; e.g., the bonusbids on a price per ton basis, the number of bid-ders and the bids received, and the number oftracts that did not receive opening bids or thatdid not receive fair market value (as defined byBLM post-sale). If trends of higher bids and in-creasing numbers of bidders are observed, in-creased leasing may be appropriate. The con-verse—less leasing during a trend of lower bidsand few bidders—does not necessarily hold be-cause companies may decline to bid in a regiondue to factors other than low demand (e.g., a per-ception that tracts are overpriced or were delin-eated in an undesirable way). Because relativelyfew lease sales have been held under the currentprogram, this methodology has been of limiteduse.

Minimum Leasing

Finally, the minimum leasing method estab-lishes a low bound for leasing. It calls for addingthe reserves needed for maintenance and bypasstracts, plus reasonable expansion of existingmines. A minimal amount of reserves needed fornew production opportunities also may be in-cluded. The primary data sources for this methodare tract delineation reports and expressions ofinterest. However, tract delineation is normallycarried out simultaneously with the proceduresfor setting the leasing level, and, as noted above,expressions of interest are subject to some uncer-tainties. Therefore, the reliability of this methodcan be reduced by insufficient data.

Effects of High Leasing Levels

DOI’s decision to use these six methodolo-gies–particularly the inventory and contractingmethods—has been controversial because theyhave resulted in continuing pressure to offer morecoal for lease than recommended by the RCTsand the State Governors. In December 1982, theFederal-State Coal Advisory Board* recom-mended to the Secretary that the inventory and

*The Federal-State Coal Advisory Board members are all the RCTs

plus the BLM national Director.

contracting rate methods “should not be givenpriority but may be used at the discretion of theRCT” (1 3). The Secretary signed off on that rec-ommendation, but simultaneously noted that,while that recommendation “removes any appar-ent mandate for the use of these two methodsby the RCTs, I am hereby instructing Federalmembers of all RCTs to provide estimates usingthese methods, and to give those estimates dueconsideration during all RCT leasing level deliber-ations” (12). The apparent contradiction betweenthose two Secretarial actions led the AdvisoryBoard to recommend, at its 1983 meeting, thatthese methodologies be reviewed again. Highleasing levels also have been the target of criticismby environmental groups, local communities,other surface management agencies, and theCommission on Fair Market Value.

In the long run, higher leasing levels imply thatmore federally owned coal will be mined, withthe potential for either a higher or lower proba-bility of adverse environmental impacts occur-ring if a tract is developed. Higher leasing levelscould reduce this environmental risk because agreater number of tracts would be offered and,theoretically, companies would be able to choosethose tracts that are the least expensive to de-velop and reclaim (and thus have the fewest envi-ronmental conflicts). Moreover, leasing moretracts might lessen the pressure to develop old(pre-moratorium) leases and PRLAs, which maybe in environmentally sensitive areas becausethey were issued prior to the body of environ-mental law approved in the late 1960’s and1 970’s.

Where the direct cost of mining is the decidingfactor in industry decisions about coal develop-ment, the argument that higher leasing levels re-duce environmental risk might be valid. How-ever, in actuality other considerations often aremore critical than direct costs. These might in-clude location (e.g., a tract adjacent to an ongo-ing mining operation, or the combined siting ofa mine and a mine-mouth utilization facility); ac-cessibility to transport; the amount of develop-ment capacity already available to a company,and the market for and the environmental char-acteristics and development costs of the coal in-cluded in that capacity; and the relative value of

—


undeveloped tracts held by a company and thoseoffered for lease (e.g., Btu value, sulfur content).In such situations, higher leasing levels will notnecessarily reduce the risk that environmentallysensitive tracts will be leased and eventually de-veloped.

Moreover, higher leasing levels place greaterpressure on BLM to find more tracts environmen-tally acceptable for leasing. In the Powder RiverCoal Region, DOI’s establishment of a lease of-fering at a level above the preferred alternativerecommended by the RCT resulted in the lowestranked tracts being offered for lease, includingsome not agreed upon by the RCT. The RCT con-siders these tracts to have relatively poor reclama-tion potential and to entail substantial socioeco-nomic impacts due to the inadequate localinfrastructure (transportation, community facili-ties, etc.) (10b). In such cases, if more tracts areleased than can be developed, uncertaintiesabout the location and level of mining activitymake it difficult for local governments to plan forthese impacts. Moreover, the high leasing levelsled to otherwise avoidable conflicts between DOIand the RCTs, and made the leasing program ap-pear insensitive to State and local needs.

In a different situation, in Uinta-SouthwesternUtah, the lease target was 322 million tons but555 million tons were offered for lease–includinglow-ranked tracts not in the target. According toDOI, the low-ranked tracts were offered becausethey had been evaluated for coal leasing, foundto be suitable, and were ready to be offered forlease, and because they provided a means of test-ing the market (6). This is consistent with DOI’sgeneral leasing policy (noted earlier) “to offer asmuch coal as is environmentally feasible and con-sented to by involved surface owners and to al-low the market to determine which tracts are de-sired for leasing.” No bids were received on thelow-ranked tracts.

In the Fort Union region, one factor in the leas-ing level decision was high early industry expres-sions of interest. * On the Dunn Center tract, for

*It should be noted that the market for North Dakota lignite islimited to mine mouth conversion facilities. When coupled withthe predominantly non-Federal ownership of the surface andmineral resources (94 percent and 69 percent or more, respective-ly, on each tract), this means that there is unlikely to be more thanone bidder per tract.

instance, the initial expression of interest was for7,160 acres of Federal coal (over 500 million tons)for a liquefaction plant which already had begunthe State permitting process. The tract was eval-uated for its acceptability for leasing in land useand activity planning. Two sections of the tractimportant to the company’s development plancontained portions of the Knife River Flint Quar-ry—a site eligible for listing in National Register(see fig. 9). These sections were carried forwardthrough activity planning and included in the finalEIS on the theory that detailed mitigation re-quirements (including preservation, if necessary)would be developed during mine plan review.Then, the company scaled down its plans for thesynfuels plant, and DOI increased the minimumbid from $25 to $100/acre (6).

While the Secretarial Issue Document (SID) wasbeing prepared, the company requested that thesize of the tract be reduced to 2,100 acres—thetonnage they estimated the scaled-down liquefac-tion plant could accommodate given the con-struction schedule and the requirement that amine be developed within 10 years after a leaseis issued. The two sections of Flint Quarry weredropped from the tract (for political reasons) justbefore the SID was issued (11), but the remainderwas offered for lease. The SID noted that a pend-ing rule change in unsuitability criterion #7 would“remove these sections from the unsuitabilitydetermination,” but that the proposed rulechange would not become final in time for thescheduled August 1983 sale (18). As a result ofthese considerations, the company did not bidon the tract. DOI’s decision not to reduce thesize of the tract further was in part due to the en-tire area having been included in the final EIS,and in part because DOI determined that, if theplant were built and a smaller tract leased, subse-quent leases would likely be needed at a futuredate to maintain coal production or prevent by-pass (leaving “islands” of unmined coal) (6).

Lease Sale Schedules

Lease sale schedules also are addressed twicein the overall leasing process. First, a preliminarylease sale target date is established prior to theonset of land use planning for a particular sale.The target date is based on BLM field, State, and

Ch. 4—Planning and Environmental Assessment in the Federal Coal Leasing Program • 65


Washington office recommendations as modifiedby the Secretary on the amount of time neededto complete pre-lease planning and environ-mental assessments. Key milestones in the targetschedule are the deadlines for completion of theMFP amendments (or resource managementplans–RMPs) and the draft and final EISs, andpublic and interagency review and commentperiods.

Second, a final regional lease sale schedule isannounced by the Secretary following comple-tion of activity planning and final consultationswith the Governors, surface management agen-, cies, Indian Tribes, and the Attorney General.

The SID accompanying the 1979 coal leasingprogram regulations established preliminary leasesale target dates for three regions: Green River-Hams Fork, Powder River, and Uinta-South-western Utah (see table 5).

Preliminary leasing targets and sale dates werenot established for the Fort Union and San Juanregions in this SID. Eventually, a target sale dateof late 1982 was established for Fort Union (laterpostponed to mid-1983), and a 1983 target datewas set for San Juan. The leasing program antic-ipated that follow-up sales would be held at 2-year intervals in each of the regions. With the ex-ception of the San Juan region, most first roundlease sales have occurred close to their originaltarget dates. In San Juan, the schedule had to beextended when BLM decided to issue a seconddraft EIS to respond to the numerous criticismsof the first draft. Federal policy has been, how-ever, to meet lease sale target dates when possi-ble. Table 6 indicates the competitive lease salesthat have been held or scheduled to date.

The original schedules acknowledged that landuse planning had not been completed for all ofthe resource areas within the various coal regions.

Most resource areas, however, did have an MFPto guide multiple-use decisions at the time theoriginal dates were set. The major environmentalanalyses remaining were updating or amendingthe MPF (including application of the unsuitabilitycriteria and surface owner consultation), tract de-lineation, site-specific analysis and preparationof the tract profiles, tract ranking and selectionof the alternatives, and preparation of the draftand final EISs. As can be seen in table 6, theschedules in Green River, Powder River, andUinta were met.

Effects of Inflexible Lease Sale Schedules

In each of the five Western coal regions, prob-lems were encountered in meeting the lease saleschedules, which reduced the quality and quan-tity of data and analyses. Given that BLM was im-plementing a new, very complex program overa short period of time, this is not particularly sur-prising. However, the normal learning curve ona comprehensive set of new coal leasing rules wascomplicated by several other considerations thatinhibited achievement of the preliminary targetdate. (These considerations include high regionalleasing rates–the ratio of the leasing level andthe schedule—whose environmental implicationsare discussed below.)

One problem was that field office recommen-dations as to the time needed to prepare for alease sale were not always heeded by the Secre-tary. For instance, in at least two regions—GreenRiver-Hams Fork and Uinta-Southwestern Utah–problems in meeting lease sale schedules wereattributed in part to deadlines being acceleratedto accommodate review and comment periods.That is, the time estimated by field offices to benecessary for the completion of data collectionand analysis also had to include public, internalBLM and DOI, and interagency reviews. This may

Table 5.—1979 Lease Sale Target Dates

Preliminary leasing targetRegion Round 1 sale date (million tons)Green River-Hams Fork . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . January 1981 531Powder River . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Early 1982 621 + 250/o

security factor, or776

Uinta-Southwestern Utah. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . July 1981 109SOURCE: Department of the Interior, Secretarld Issue ~ocu~e~t, federal Coal Management Program, vol. 11, 1979.


Table 6.—Lease Sale Schedules

Leasingtarget/level Offered Sold

Sale Sale date (millions of tons)

Green River-Hams Forka. . . . . . . . . . . . . . . . . . . 1/81 ;4/81 ;6/81 416 573 573Round I

Uinta-Southwestern Utaha . . . . . . . . . . . . . . . . . 7181 ;2/82;5/82 322 555 88Round I

Powder River . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4/82; 10/82 2,360 1,681 1,580Round I

Fort Unionb . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9183 800-1,200 543 102b

Round ISan Juana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (lst quarter FY84)c 800-900

Round l— —

Green River-Hams Fork . . . . . . . . . . . . . . . . . . . (2nd quarter FY84)c 750-950 —Round ll

—

Uinta-Southwestern Utah . . . . . . . . . . . . . . . . . . (2nd quarter FY84)c 1,6OO-2,100 a —Round ll

—

Powder River . . . . . . . . . . . . . . . . . . . . . . . . . . . . (4th quarter FY84)c 1,200-4,850 —Round ll

—

Fort Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (4th quarter FY85(c – — —aln place re9etvesbaidrecelv~~,but ndsdrjbetxuge of leaaesale banin flSCalyear 19S41ntedOr Appropriations BII1.cotiginat schedul~ now deferred.

SOURCE: Office of Technology AseessmenL from Bureau ofLar?d Manqement documents.

have cut the time for field activities in supportof land use and activity planning by as much asone-half in those regions (6).

Compression or acceleration of sale schedulesalso hinders other agencies’ ability to coordinatetheir planning with BLM’s. For example, in theUinta region, the Forest Service planned to budg-et time and resources for their involvement in ac-tivity planning for anticipated Round II sale datesin fiscal years 1985-86. The sale dates were thenmoved forward 2 years (to 1983-84), but the For-est Service had not submitted budget requests foractivity planning for those years. Although theForest Service actively assisted BLM in keepingto the Bureau’s schedule for Round I, they viewthe current hiatus in leasing as a chance to “catchup” on their Iand and resource managementplanning so they can participate more effectivelyin, and have the budget resources for, activityplanning for Round II (10).

The reorganization that shifted DOI’s mineralsconservation functions from the GeologicalSurvey (USGS) to the Minerals Management Serv-ice (MMS) and eventually to BLM was partiallyresponsible for tract delineation being delayedin some of the regions. Also, time schedules weredifficult to meet in some regions due to changes

in policy directives to the field offices. All of thesewere compounded by personnel rotations andattrition in BLM field offices.

The Environmental Implicationsof Leasing Rates

High regional leasing rates—the combinationof increased leasing levels and rigid lease saleschedules—mean that BLM must delineate andevaluate more tracts during activity planning andenvironmental impact assessment. If additionaltime and/or resources (including staff or funds)are not provided for these activities, then less datacollection and analysis can be performed if therate is maintained. As a result, more tracts mustbe carried forward with less analysis than mightbe desirable to assure environmental com-patibility, and greater reliance must be placed onthe permit review, which increases the risk thatenvironmentally sensitive areas eventually will bemined.

in the last 3 years, high regional lease ratesresulted in the application of some unsuitabilitycriteria without sufficient supporting data andanalyses, or the deferral of their application toactivity planning (see discussion of “Unsuitability

68 ● Environmenal Protection in the Federal Leasing Program

Criteria” below). Thus, the deadline for comple-tion of land use planning had to be allowed toslip, or time had to be taken during activity plan-ning to complete some of the land use planningfunctions. Either way, the EIS preparationschedule remained fixed, and the time remain-ing for site-specific analyses (SSAs) had to be com-pressed. This was exacerbated by the need to col-lect data and complete the unsuitability reviewsthat were deferred during land use planning.

There is consensus among the participants inthe leasing program that, unless lease saleschedules were allowed to slip, there was insuf-ficient time to complete more than recon-naissance level studies, and, in some cases, forthe appropriate technical experts (e.g., soil scien-tists, wildlife biologists) physically to visit a sitepre-lease (Powder River) (10b). In at least one re-gion (Uinta), the majority of time allotted for site-specific analyses was during the winter months(10c). In some split estate situations, obtainingsurface owner consent for, and performing, datacollection and research was difficult given thetight planning schedule.

Where leasing rates did not increase greatly,or where planning and analysis were begun suf-ficiently far in advance (e.g., mid-1970’s), BLMgenerally was able to complete the additionalplanning and analysis necessitated by higher leas-ing rates. However, where leasing rates. did in-crease significantly and BLM had not made suf-ficient progress in environmental assessment,local and regional BLM offices were forced intoa crisis or issue management mode, in which theywere able to focus only on tracts nominated byindustry or about which controversy had arisen.The quality of their assessments suffered as a re-sult. If it were not for the high leasing rates, BLMprobably would not have had to strain its envi-ronmental planning and assessment capabilities.Furthermore, the postponement of land use deci-sions resulting from the high leasing ratesheightened conflicts over specific tracts, whichfurther exacerbated the ability to reach accom-modation with the affected parties.

DATA AND ANALYSISComprehensive land use and activity planning

and environmental assessment supported by in-creasingly detailed data and analyses are at theheart of the tiered structure concept of the Fed-eral coal leasing program. However, the ade-quacy of the data and analyses used in decision-making for some of the past Federal coal leaseofferings and those currently being evaluated hasbeen criticized, both in terms of quality and quan-tity, and in the timeliness of their availability.These criticisms currently form part of the basisfor three lawsuits. In Northern Cheyenne Tribev. Watt (16), and National Wildlife Federation v.Burford (14), plaintiffs allege that the land useplans which provided the foundation for environ-mental decisions in the first round of coal leasesales in the Powder River region do not meet therequirements of either FCLAA or FLPMA. A thirdsuit, Natural Resources Defense Council v. Bur-ford (15), challenges the adequacy of planning

in all regions to the extent it is based on updatedMFPs rather than new RMPs (see ch. 3).

This section describes the data-gathering proc-ess as it relates to the Federal coal leasing pro-gram. While both the theory of the existing legaland regulatory framework, and its implementa-tion are addressed, the focus of the following dis-cussion is the present practices of BLM in datacollection and analysis, and the criticisms of thosepractices. Aspects of data and analysis that relatespecifically to the application of the unsuitabilitycriteria are addressed in detail in a separate sec-tion of this chapter.

A Tiered Process

Decisionmaking in the Federal coal manage-ment program is essentially a tiered process inwhich the level of detail in environmental anal-

Ch. 4—Planning and Environment/ Assessment in the Federal Coal Leasing Program ● 69

yses increases as the amount of land under con-sideration for leasing (and mine development)decreases (see fig. 2 in ch. 2). At the lowest tieris comprehensive land use planning for areas ad-ministered by Federal land management agen-cies. For the most part, the information at thislevel is prepared prior to the initiation of plan-ning for the development of a particular Federalresource, but includes lands’ acceptability forsuch development. Thus, land use planning inan area known to have recoverable Federal coalresources will include collection and analysis ofcoal resource data, application of the unsuitabilitycriteria, evaluation of potential multiple-use trade-offs, and surface owner consultation, as well ascomprehensive land use planning for all re-sources based on principles of multiple use andsustained yield. These four “screens” for deter-mining coal lands’ acceptability for further con-sideration for leasing are described in greaterdetail in chapter 3.

The 1979 leasing program regulations specifiedthat these four screens were to be applied se-quentially, with medium to high coal develop-ment potential being the initial screen (comparefigs. 10 and 11). Under the present program, thescreens need not be applied sequentially (and,in practice, often are considered simultaneously),and lands with low coal development potentialmay also be carried forward to later stages asacceptable for further consideration for leasingand eventually offered for lease. Allowing landswith low coal development potential to be car-ried forward to the next stage of the leasing proc-ess can increase the area BLM field personnelmust evaluate at each subsequent stage, whichexacerbates the time and other resource con-straints imposed by high leasing rates. This effectcan be compounded by the simultaneous appli-cation of the screens if BLM’s limited staff, time,and budget are expended collecting and analyz-ing data relevant to one screen only to find thearea is unacceptable under another which wouldhave been applied first under the 1979 program.On the other hand, an inflexible requirement forsequential application could be less efficient if,for example, data are available to drop an areafrom further consideration based on multiple-usetradeoffs, but that action could not be taken un-

til data to support coal resource or unsuitabilitydeterminations are available.

Once the required screens have been applied,potential lease tracts are delineated and addi-tional information about them is gathered andevaluated during activity planning for a regionallease sale. Data and analyses at this stage focuson the possible impacts that could result from de-velopment of an active coal mine on those tractsthat have been found potentially acceptable forsuch development. During activity planning, en-vironmental assessments include site-specificanalyses, tract profiles, and the estimated regionalimpacts of development on lease tracts, whichculminate in preparation of the regional lease saleEIS and the ranking of tracts by the RCTs.

The ultimate level of detail in the assembleddata and the scrutiny it receives is outside the ac-tual leasing process. It is the submission, pursuantto SMCRA, of an application for a surface min-ing permit, including a detailed mining and rec-lamation plan, for a particular tract and scrutinyof that application by the appropriate permittingagency. The extremely detailed data and analy-ses required at mine plan review shift the eco-nomic burden of gathering extensive inventorydata and performing data intensive analyses (e.g.,on hydrology or reclaimability) to the lessee.

At each step in this process, existing data areanalyzed in increasing detail and supplementedby more directed data-gathering efforts. This ispossible because the amount of land being eval-uated at each successive tier becomes progres-sively smaller as the land moves closer to actualdevelopment. The intent of this tiered process isnot only to permit a progressively narrower focusof the evaluations, but also to eliminate unaccept-able areas from further consideration for leasing,after taking into account the coal resource qualityand quantity, proximity to existing transportation,socioeconomic and environmental concerns, andother factors.

Sources of Data

A variety of different types of data and analy-ses are necessary to support land use and activi-ty planning and environmental assessment for

3 4 - 7 5 6 0 - 6 - QL3


Figure 10.—1979 Land Use Planning Process

(To activity planning)

SOURCE: Bureau of Land Management, Federal Coal Management Program, Final Environmental Statement (April 1979).

coal leasing. These include coal resource data,other resource inventories (e.g., hydrology, wild-life and habitat, cultural and archaeological sites),socioeconomic data, and environmental, social,and economic impact assessments. The sourcesfor such supporting information include earlierBLM planning documents, BLM field studies,other Federal and State agencies, local commu-nities and residents, coal companies, mine plansand operating mines, the public, academe, andenvironmental and other interest groups. How-ever, the data available from these sources arenot readily accessible in any systematic way, andthe extent to which these sources are tappedvaries widely.

Data and analyses developed by BLM (i.e.,available in-house) are based on general land useplanning, and on field studies and planning insupport of earlier lease sales or other activities(e.g., grazing, wilderness). All BLM regions haveMFPs to guide their planning. However, suchplans were prepared prior to the comprehensiveland use planning mandates of FCLAA andFLPMA, and must be amended or updated to in-corporate planning for coal leasing. The contin-ued reliance on updated MFPs contributes to theperceived inadequacy of BLM’s data and plan-ning and is one basis for the pending litigation

against BLM by environmental groups. The prep-aration of comprehensive RMPs is underway insome areas, but those documents generally willnot be available to support leasing activity untilat least the third round of lease sales (see sepa-rate discussion of RMPs in ch. 3).

In the current leasing process, MFPs are sup-plemented by field studies to the extent possible.It appears that BLM has not been able to collectas much data or perform as many analyses as theywould have liked. In general, funds for new re-source inventories have been cut back, and envi-ronmental assessments typically relied on updatesof existing inventories based on areal mapping.

The fiscal year 1984 budget justification indi-cates that the Bureau plans to reduce the num-ber of technical investigations by more than one-half (see table 7) (l). Technical investigations arestudies describing the effects of coal leasing deci-sions on hydrology, overburden, soils, and veg-etation. Under a 1981 policy change, the respon-sibility for overburden, soil, and revegetationstudies has been transferred to lessees. Accord-ing to that budget justification, BLM considershydrologic studies necessary to support decisionsleading up to a lease offering and will continueto perform such studies in-house, but with a

Ch. 4—Planning and Environmental Assessment in the Federal Coal Leasing Program Ž 71

Figure Il.—Current Land Use PlanningLand use planning

Process

SOURCE: Bureau of Land Management.1

greater reliance on existing data from earlierstudies in the same areas and on data from lessees(l).

DOI also plans to cut nonminera!s inventoriesby one-third, primarily by concentrating inven-tories in areas with high coal development po-tential, and to reduce geology, energy and min-erals (GEM) assessments by more than one-half

by shifting from a tract-by-tract analysis of coalresources to an automated data base incorpor-ating industry drilling and other data (l). Finally,land use planning studies to support regionallease sales, which provide information on spe-cific topics such as air and water quality, culturalresources, and socioeconomic impacts will be re-duced by more than one-half. This reflects an-ticipated decreases in the number of lease sales


Table 7.—BLM Coal Leasing Workload Projection

Change: FY83 Change: FY84FY 1982 FY 1983 FY 1984 appropriate ions FY 1984 base to

Workload measure actual appropriate ions base to FY84 base estimate FY84 estimateActivity plans prepared . . . . . . . . .PRLAs processed. . . . . . . . . . . . . .Lease readjustments . . . . . . . . . . .MFP amendments . . . . . . . . . . . . .Land-use planning studies . . . . . .Inventory (000 acres) . . . . . . . . . . .GEM assessments (000 acres) . . .Lease applications. . . . . . . . . . . . .Exploration licenses . . . . . . . . . . .Trespass investigationsSite-specific EAs . . . . . . . . . . . . . .Site-specific EISs. . . . . . . . . . . . . .Technical investigations . . . . . . . .Lease assignments . . . . . . . . . . . .Negotiated sales . . . . . . . . . . . . . .Lease modifications . . . . . . . . . . .Lease exchanges . . . . . . . . . . . . . .Unsuitability petitions . . . . . . . . . .Conveyances. . . . . . . . . . . . . . . . . .Tracts evaluated for regional

lease sales . . . . . . . . . . . . . . . . .Tracts evaluated for application

lease sales . . . . . . . . . . . . . . . . .Diligent development/continued

operations determinations . . . .

353526

6151202374

58

3656

412

6

15

402

132,100

30023785

437

1359

377

20

58065

413

2,100708

2378

867

71395

2572

20

+1 56965

61,400

3222378

867

56

952572

10

–11+25+2

—

–7– 700

+408 –386—

—+3

+24— –2

–7—+36–1–2

—+1 —

–10

65 65 65 35 –30

30 10 10 5 – 5—

130 134 134 134Inspections . . . . . . . . . . . . . . . . . . . 1,800 2,200 2,200 — 2,400 +200Mine and exploration plan

reviews. . . . . . . . . . . . . . . . . . . . . 268 259 259 — 269 +10SOURCE: Burem of Land Management FYS4 Approprlatlons Summary Statement

to be conducted in fiscal year 1985 and fiscal year1986, as well as greater reliance on lessee dataon cultural resources (1).

important part of the leasing program. However,the Federal coal drilling program has been sus-pended and leasing decisions related to coal de-velopment potential are increasingly dependenton industry data. Coal companies must submitcoal resource information in support of expres-sions of interest for particular tracts. Otherwise,coal resource information is proprietary and doesnot have to be shared with BLM or disclosed tothe public. As discussed below, other data de-veloped by industry (e.g., on environmental re-sources) also can be considered proprietary anddo not have to be given to BLM pre-lease.

One possible source of data on hydrology andsoil profiles is from industry drilling to collect coalresource information. A company must securea drilling permit from BLM in order to performthe exploratory drilling necessary to evaluate anarea’s coal development potential. These permitscould be conditioned to require the simultaneouscollection of hydrological and soil profile data,or BLM could perform additional data collectionat those sites at minimal cost to the government.

These reductions in the basic analyses that sup-port land use planning assume that the existingplanning base will be adequate, with tract-spe-cific amendments, to make informed decisionsabout the environmental compatibility of tractsto be offered in future lease sales. Since OTAfound that current pre-sale planning and analy-ses have not always been adequate in the past,continued cutbacks in these activities in the futurecan only heighten the controversy. The changesin program emphasis described above also focusmost general planning and analysis on areas withcoal development potential. As a result, the plan-ning data base will continue to fall short of a com-prehensive areal perspective on the relative val-ues of resources on coal tracts.

The collection of coal resource information byindustry or Federal agencies, including BLM andUSGS, occurs both independently of and as an


In the Wyoming portion of the Powder River re-gion, exploration licensees have been encour-aged to gather as much environmental data aspossible (6), but otherwise opportunities to takeadvantage of industry drilling activities to secureadditional environmental data seem to have beenoverlooked.

One source of high quality environmental re-source information that frequently is not used byBLM is data from mine plans and operatingmines. While these data do not apply directly toany lands considered for coal leasing, they aresometimes derived from lands either adjacent toor in the vicinity of potential lease tracts. Conse-quently, they can provide extremely detailed in-formation that identifies the characteristics of andimpacts of mining in areas similar to proposedlease tracts. This information can then be verifiedby, or used to focus, data gathering efforts onlease tracts.

Unlike industry data gathered on unleasedareas, all information in mine plans, including in-depth analyses, and from operating mines, isavailable to the general public. However, one po-tential problem in the use of existing mine planand mining data is the extreme site specificity ofthe information. For example, revegetation datain the San Juan region do not address reclama-tion in a systematic regional manner, but at amine-specific level (10a). A second problem isthat the sheer scope of a mine plan, which maynumber 20 or 30 volumes, discourages the useof these data and analyses. Nevertheless, concernwas voiced to OTA in each region about the ex-tent to which data from existing mine plans andoperating mines were not utilized by BLM.

Apart from the Federal surface managementagencies, including BLM and the Forest Service,a large group of technical expertise exists withinthe mining industry, OSM, State and local govern-ments, 51A, Indian Tribes, academe, and the gen-eral public. Technical expertise from virtually allof the sources mentioned above has contributedto BLM’s land use and activity planning and envi-ronmental assessment. For example, active par-ticipation by local residents in BLM’s pre-leaseplanning and assessment resulted in identifica-tion of valuable wildlife habitat in Powder River

(10b). However, in other cases, BLM made min-imal use of technical expertise that was not avail-able in-house.

BLM is beginning to make more use of datafrom outside sources. For instance, in the SanJuan region, early planning documents for leas-ing acknowledged the lack of data on socioeco-nomic, agricultural, and cultural characteristicsof Indian lands. Many of the gaps could be filledby BIA and the Tribal and Pueblo governments.BLM is now attempting to incorporate informa-tion from these sources in their pre-sale planning(10a). Similarly, in Colorado, BLM has now con-tacted the Mined Land Reclamation Division ofthe State Department of Natural Resources todetermine how State data bases derived from per-mitting and monitoring of mines can be used inpre-lease planning (6).

The primary constraint on the use of datafrom sources outside BLM is the limited periodof time and other resources available to seek outsuch data coupled with the lack of a comprehen-sive, easily accessible data base. Due to the timeand budget constraints on all participants in leas-ing, available information is not easy to incorpo-rate in pre-lease planning and analysis. BLM hasneither the time nor the resources to review allexistent data—most of which is unpublished andthus not indexed—for its relevance to leasing.Similarly, it is usually beyond the scope of otherparticipants’ resources (or responsibilities) to en-sure that all information applicable to leasing ispresented to BLM in a manner that would facili-tate leasing decisions. As a result, the exchangeof information among participants in leasing hasbeen somewhat serendipitous.

Attempts have been made in the past to accu-mulate all resource data and analyses relevant toWestern coal development and incorporate themin a comprehensive, easily accessible, comput-erized data base. Such a data base would be in-valuable in improving the quality of pre-leaseplanning and assessment, in assisting in reclama-tion plans, and in facilitating public participationin leasing and mine plan review. However, itwould also be an extremely expensive and time-consuming task. BLM currently is developing acomputerized data base on coal resources; it


could be expanded to include other resourcedata. The U.S. Forest Service formerly publisheda quarterly computerized listing of reclamationstudies that were available in the Rocky Moun-tain West—Surface, Environment, and Mining(SEAM) –which was discontinued for financialreasons. Options for developing such a data baseare discussed in more detail in chapter 2.

Adequacy of Data and Analyses

The data and analyses for assessing the envi-ronmental compatibility of coal development onpotential Federal lease tracts raise issues relatedto the ability of data bases to support leasing deci-sions during land use and activity planning, highleasing rates, the insufficient guidelines or stand-ards for evaluating the adequacy of data and plan-ning, reliance on “worst-case” analysis, the elim-ination of requirements for cumulative impactassessments prior to the EIS, problems with datacollection on split estate lands, and the con-straints on use of non-BLM data (discussed pre-viously).

It should be noted at the outset that the quan-tity and quality of data and analyses needed tosupport a particular planning or leasing decisionfrequently is a “judgment call.” Seldom will therebe a consensus among participants in the leas-ing process that there is an appropriate level ofinformation for a decision; some will always argue“too little,” others will always counter “toomuch.” However, the factors discussed belowsupport the finding that BLM personnel were not,in many cases, able to meet their own profession-al standards for the quality and quantity of dataand analysis desirable to support land use andactivity planning.

Land Use Planning

OTA found that in some cases, an outstandingjob of data collection and analysis was performedto support informed land use planning decisions.For example, in the powder River region, the MFPand amendments for the Decker-Birney area, inthe vicinity of the Tongue River, indicate that ex-tensive data of high quality existed to supportland use planning. Often, the exceptional amount

of data available in a particular area can be at-tributed to that area having been used for spe-cial studies during development of the leasingprogram. Unfortunately, the amount and quali-ty of information in such areas appears to be anexception.

inadequate data and analyses to support landuse planning decisions were identified by OTAin two main areas: information to support applica-tion of the unsuitability criteria (discussed sepa-rately in this chapter) and coal resource data. Un-less inadequacies in coal resource informationand environmental data bases in the initial phasesof the leasing process are explicitly recognizedand subsequently remedied, they can affect theoverall quality of land use and activity planningefforts.

In the San Juan region, for example, BLM hadlimited coal resource information early in landuse planning. This was due in part to the unex-pectedly high regional leasing level, which meanta larger area would have to be evaluated for coalresources than originally anticipated by BLM fieldpersonnel, and in part to the lack of an activedrilling program within DOI. The guidance givenby the RCT was to delineate more tracts on thebasis of less reliable reserve information, with thecaveat that the tracts would not be offered forlease until additional drilling was performed.Thus, adequate coal resource information maynot have been available to the tract analysis teamearly enough for tract ranking.

This was one factor in the widespread criticismof the adequacy of the first draft EIS for the SanJuan Round I lease sale (nonconsideration ofPRLAs except in the no-action alternative, inade-quate data on cultural resources, inadequateanalysis of economic costs and benefits of leas-ing, no analysis of impacts of relocating Navajos,and inadequate hydrologic data were other fac-tors). Following improvement of the coal resourceinformation, gathering of more environmentaldata, particularly on cultural resources, and thelowering of the regional leasing level, a seconddraft EIS was prepared. However, of the 39 tractscarried forward for further consideration for leas-ing in the second draft EIS, 12 still are listed as“low confidence in the quality and quantity ofthe coal resource” (7).

Ch. 4—Planning and Environmental Assessment in the Federal Coal Leasing Program ● 75

OTA’s perception is that the routine, every-day inventorying by BLM—data gathering thatsupports all activities and not just the coal leas-ing program—also has been inadequate to sup-port environmental decisions on coal leasing.Budget constraints on resource inventorying (e.g.,of wildlife habitat) during land use planning haveled to a high degree of reliance on available data,primarily on updated or amended MFPs. Asnoted above, in a number of instances continuedreliance on MFPs has been inadequate to sup-port informed decisions most notably in therepeated deferral of application of the unsuita-bility criteria during land use planning (see sep-arate discussions of the unsuitability criteria andof deferral of decisions).

In the Uinta-Southwestern Utah coal region,adequacy of existing comprehensive land useplans is a major issue. The specific concerns thereare the conflicts between the schedule for landuse planning by the U.S. Forest Service (as thesurface management agency for National Forestlands) and that of BLM (as manager of the coalresources underlying Forest lands), and the dis-agreement between the two agencies on the sig-nificance of projected impacts of coal develop-ment. The Forest Service (and many otherparticipants in Ieasing in that region) contendsthat potential cumulative environmental effectsof leasing on the Manti-LaSal National Forest, inwhich numerous tracts have been delineated,cannot be assessed until a revised and updatedForest Land and Resource Management Plan isprepared, as required by the National ForestManagement Act (see fig. 12). That plan is sched-uled for completion in 1985, but was not avail-able to support leasing decisions for the firstround of sales (10).

Forest Service personnel cited data deficienciesconcerning big game winter range, trout fisheries,sage grouse habitats, eagle nests, endangeredspecies, flood plains, cultural resources, andother areas in the application of the unsuitabilitycriteria and in preparation of the site-specific anal-yses. The limited time allotted for SSAs and theinconsistent approaches used by the two surfacemanagement agencies also were cited by ForestService staff as reasons to delay leasing of cer-tain tracts within the Forest (1 O). Other partici-

pants agree that there has been a lack of coordi-nation in data collection and planning betweenthe two agencies. For example, the two agencieshave not as yet agreed to a definition of what con-stitutes a municipal watershed. This has implica-tions for unsuitability criterion #17 (municipalwatersheds), which, if it is found to apply, couldremove much of the area from further consider-ation for leasing (see section on unsuitability cri-teria).

In the San Juan region, inadequate environ-mental data from MFPs and other sources wereemployed throughout Iand use planning, activ-ity planning, and draft EIS preparation. The EISprocess, rather than land use planning as pre-scribed in regulations, ultimately was responsi-ble for forcing the collection of data, but thismeant the data were collected after tract delinea-tion, and were not incorporated at the outset incomprehensive land use planning.

As noted above, one of the possible means ofimproving data bases is to use data from sourcesoutside BLM to make decisions concerning mul-tiple-use tradeoffs and unsuitability decisions. Insome cases, critical data that were available dur-ing land use planning were not considered, notonly in land use planning, but also in later phases.For example, in the Fort Union region sufficientinformation was supplied to BLM at the outsetof land use planning to enable them to make mul-tiple-use tradeoffs or unsuitability decisions, andthus to drop tracts, due to the presence of mis-sile silos and related control facilities. Yet thesetracts were considered “acceptable pendingstudy” (a Strategic Air Command assessment ofthe effects of mining on defense installations), andproceeded through planning and the EIS proc-ess before being dropped in the SID at the re-quest of the Secretary of the Air Force becausethe final results of the study were not available(18).

Activity Planning

Data-gathering efforts during activity planningare focused on the specific delineated tracts.From this point on, the baseline data are usedto analyze the projected environmental impactsof coal development on that particular site. Data

76 . Environmental Protection in the Federal Coal Leasing program

Figure 12.—Coal Tracts in the Manti-LaSal National Forest(Uinta-Southwestern Utah coal region)

Coal leases

Lease sale tracts

Active coal mines

Tracts offered in Round I but not sold

Known recoverable coal resource area boundary

Manti-LaSal national forest boundary

SOURCE: Bureau of Land Management


collection that occurs once tracts have been de-lineated has been at best uneven. Specific prob-lems include the lack of a regional perspective,variations in quality and quantity of data betweentracts and between regions, and the difficultiesposed by very large tracts.

One problem found by OTA is that the in-depthinformation on a given tract that supports theanalysis in a regional EIS will not provide a per-spective on how the tract fits into the regionalsetting unless information of an equivalent levelof detail is available on areas throughout the re-gion. On one hand, this means that detailed in-formation on a tract can make it appear to be sen-sitive to environmental conflicts, whereas ifconsidered in the context of equally detailed datafor the entire region, the resources on that tractmight not be valued so highly. This may be a con-tributing factor to industry’s general reluctanceto divulge environmental data on a tract in whichthey are interested. On the other hand, tract-specific data may be inadequate to support theassessment of cumulative impacts required inthe EIS.

BLM field staff told OTA that tracts are far morelikely to be dropped because of too much infor-mation rather than too little. For example, in thePowder River region, a tract was dropped fromfurther consideration for leasing in Round II be-cause of a preponderance of negative elements.It was not dropped explicitly because of applica-tion of any of the screening procedures. It simplyseemed like a bad tract to lease when comparedwith other tracts (10b). While this is exactly thetype of decision that BLM is supposed to make,it is possible that the level of data gathered onthis tract tended to make it look worse than itwould have appeared had an equivalent level ofinformation been available for the general area.On the other hand, the comparison of equivalentdata bases still might have justified not only thetract’s low ranking, but also its being droppedfrom further consideration for leasing.

Criticisms also have been raised about the lackof tract-to-tract consistency in BLM’s data bases.Among the examples cited are differences in the

level of soil surveys and wildlife inventories thatwere available in some of the States. In the Pow-der River region, existing soil surveys in Montanawere reportedly more detailed than those avail-able in Wyoming (6). Similarly, in Fort Union, theMontana wildlife inventories were considered toprovide higher quality information than those inNorth Dakota (9). In most such cases, the varia-tions in data quality and quantity can be tracedto staff support from State or other Federal agen-cies. Where resources are not available for that “staff support, the quality of BLM’s analyses suffers.

Regional variations in data adequacy also mightbe traced to the level of coal development in aregion in the past, and therefore the availabilityof data from mine plans and operating mines, andthe degree to which future coal development wasanticipated. If a region plans for a low level ofleasing and a high level is imposed, a large num-ber of tracts will have to be evaluated in a shortperiod of time, usually after land use planning.Inconsistencies such as these further underscorethe present lack of any program-wide guidelinesto assist in the assessment of the quality of datadesirable at each stage of lease planning.

Gathering environmental data on very largetracts may be a significant problem for informeddecisionmaking. For example, the Ash Creek tractin Powder River is over 7,700 acres in size. Onlythe most comprehensive site-specific analysis andinventory of resources could ensure that all envi-ronmental resources are considered adequatelyon such a tract. In such situations, time andbudget constraints mean BLM must rely on otherparticipants to alert the Bureau to environmentalconflicts. Thus, on Ash Creek, the presence ofone of two known nesting sites within Wyomingof a State high interest species, the Lewis Wood-pecker, was ascertained only as a result of theactive participation of local residents in activityplanning. Determination of this species’ presenceon the tract resulted in BLM’s declaring a bufferzone around the nesting site as unsuitable formining. However, subsequent BLM data collec-tion indicated the presence of alluvial valley floorsand bald eagle hunting grounds, and Ash Creekwas not carried forward in the regional EIS (10b).

78 ● Environmental protection in the Federal Coal Leasing Program

Policy Implications

OTA found that the primary cause of data in-adequacy in recent years has been the high /eas-ing rates, or the combination of the size of thearea that must be evaluated for leasing at eachstage of the process, and the amount of timeallotted to that evaluation. The high leasing ratesdid not provide sufficient time for BLM person-nel to search existing data bases or to collectnew data in areas that had not previously beeninventoried or had been inventoried only par-tially. As a result, either the time needed for landuse planning had to be extended and, therefore,the activity planning schedule compressed, orland use planning decisions had to be deferredor based on inadequate data (see separate dis-cussion of “Regiona Leasing Rates”). Deferral ofdata collection to activity planning–after tractshave been delineated–may result in BLM over-looking potential coal lease tracts.

Another major problem with the current Fed-eral coal leasing program is the insufficient reg-ulatory guidelines and standards for determin-ing whether the environmental data that exist atany stage of the leasing process, either duringland use or activity planning, are adequate to pro-ceed to subsequent stages. Some guidelines arespecified in internal BLM memoranda and otherdirectives, but most regulatory standards for dataadequacy were eliminated in the 1982 programchanges. A wide range of participants in the leas-ing program —including many BLM field person-nel—expressed a preference for regulatory stand-ards and guidelines (when written with sufficientflexibility to adapt to regional needs) because theyprovide more predictability and stability in leas-ing decisions, and facilitate more effective publicparticipation.

Moreover, there is no uniform interstate or in-terregional approach to a “checklist” for the min-imal requirements of a data-gathering effort fordifferent stages of pre-lease planning and assess-ment or for different field disciplines. Guidelinesdo exist for preparation of the regional lease saleEIS, in the explicit requirements set out in NEPAand the CEQ implementing regulations, but theprecise levels of data needed for an evaluationare not specified by scientific disciplines.

The importance of an adequate data base tosupport leasing decisions was expressed in the1979 regulations implementing the Federal coalmanagement program. Yet, provisions of the1979 regulations concerning general require-ments for the adequacy of data in land use plan-ning were eliminated in 1982. There also appearto be no guidelines in the regulations as to thespecific quality or quantity of data related to spe-cific disciplines (e.g., hydrology, wildlife) that areneeded to make the required environmental re-views and decisions. BLM currently is revising itsinternal manual for land use planning; a final ver-sion which might include such guidelines shouldbe available in mid-1984. However, as notedabove, internal guidelines may not be as effec-tive in providing guidance to field personnel, donot provide as much predictability and stability,are not subject to formal public review and com-ment, and are not as accessible to the public asregulatory guidelines and standards.

One option that might provide greater guid-ance is a scaled indexing scheme for each scien-tific discipline for which the data base must beevaluated at different stages of the coal program(e.g., soil orders 1 through 4, cultural resourceinventory classes 1 through 3). At each stage, aspecific level within the scaled indexing schemecould be required to be attained before the areacould advance to the next planning stage. For ex-ample, while a class 1 cultural resource survey(a survey of all the relevant literature, publishedand unpublished, on cultural resources in thearea) may be sufficient to make informed landuse decisions, a class 3 survey (100 percent fieldrecognizance) may be required in the mine planto support a permit application in areas wherecultural resource sites are numerous. Otherscaled indexing systems could be devised foreach of the scientific disciplines that need to beaddressed. The scales must be flexible enoughto accommodate the wide variation in resourcesand available data among tracts and regions; theyshould not be “cookbook” standards. Moreover,such standards and guidelines must ensure thatthe levels of data and analysis are technically andeconomically feasible and correct for the stagein the tiered leasing process in which a particu-lar decision is to be made.


Another criticism of the methodologies usedto analyze environmental impacts is directed atthe “worst-case” approach to environmentalimpact assessment, which is required by theCouncil on Environmental Quality (CEQ) regula-tions whenever “information relevant to adverseimpacts is essential to a reasoned choice amongalternatives and is not known and the overallcosts of obtaining it are exhorbitant” (40 C.F.R.1502.22). First, concerns have been raised thatworst-case analysis bears no relation to reality inthat no coal company would develop a mine sim-ilar to that described in a worst-case analysis. I nfact, in most cases a mining methodology can-not be projected accurately for any tract prior topermit application review, when in-depth coalresource and environmental inventory data areavailable for a tract. Even then, industry doubtsthat two mining engineers would develop thesame mine plan. Yet, the leasing program mustcontend with tracts being ranked and ultimatelyrecommended for leasing on the basis of impactanalyses predicated on worst case developmentof a tract. Second, if an extreme worst case anal-ysis is used for regional development, it can becounterproductive in that it unduly alarms (orraises the expectations of) the public and inhibitsthe ability of local communities to plan for de-velopment. However, worst-case analyses canprovide a sense of the potential risks posed byleasing decisions when adequate data or method-ologies are not available to quantify likely costsand benefits of a proposed action.

Major concerns also have been raised aboutthe recent elimination of the threshold conceptof cumulative impacts as regulatory authority todrop a tract from further consideration for leas-ing prior to the EIS. The threshold concept origi-nally was intended to serve as a quantitativemeasure of the projected combined impacts ofthe development of several mines in one area be-ing evaluated for leasing during one round oflease sales. In the 1979 regulations, BLM was spe-cifically empowered to halt, suspend, or condi-

tion further consideration of areas for leasing dur-ing land use planning if analysis indicated thata threshold level of cumulative impacts would bereached. Similar regulatory authority was grantedto the RCTs during tract ranking. These authoritieswere eliminated in the 1982 regulations, whichuse the threshold concept only in a very generalsense as a measure of cumulative impacts in theEIS. BLM indicates that the threshold concept wasnot well understood and had never been used(6). Development of a workable threshold con-cept and its implementation through the programregulations (including authority to drop tracts orcondition their further consideration for leasing)during land use planning and tract ranking wouldaddress one of the perceived inadequacies inBLM’s pre-lease planning and assessment andwould reduce the risk of adverse environmentalimpacts from the development of several minesin one area.

Finally, split estate lands can inhibit BLM’s abil-ity to collect sufficient data to support land useand activity planning decisions and to preparethe EIS. BLM personnel are not assured accessto such lands for data collection and field studies.For example, in the Fort Union region, the BurnsCreek tract (see fig. 13) had to be eliminated fromfurther consideration for leasing due to lack ofdata because surface owners denied BLM accessto the land for the collection of baseline data (4).Although the tract had been in the planning proc-ess for nearly 2 years, surface owners had previ-ously granted a mining company access to theland so that they could collect environmentalbaseline data. They did not perceive a need fora second stint of inventorying, but the company,which viewed the environmental data it had gath-ered as proprietary, declined to share the datawith BLM, and the tract could not be evaluatedfor environmental compatibility. The uncertain-ties posed by planning and assessment for, andleasing of, split estate lands are discussed ingreater detail in a subsequent section of thischapter.


Figure 13.— Burns Creek Tract

T20N

T19N

T20N

T19N

R55E

Legend

Private surface

Surface owner nonconsents

Private coal

SOURCE: Bureau of Land Management, Foff Union Cod Region Dfatr Errvlrorrrnental h?wact Statement (July 1982).


UNSUITABILITY CRITERIAAs discussed in chapter 3, 20 unsuitability

criteria have been developed to implement theSurface Mining Control and Reclamation Act(SMCRA), other Federal laws, and executive or-ders (see table 8). The principal objective in ap-plying these criteria is to protect the most sensi-tive and valuable features of Federal lands, andto determine whether such lands contain areaswhich are unsuitable for all, or certain types of,surface coal mining operations. The unsuitabilitycriteria can be divided into three categories: 1 )those criteria that are mandated or suggestedunder section 522 of SMCRA, 2) those that em-body requirements under other Federal statuteswhich DOI chose to enforce through the unsuit-ability criteria, and 3) some that DOI selected onthe basis of its judgment of their merits.

As required in the regulations implementing theleasing program, these unsuitability criteria areinitially applied to all Federal coal lands with de-velopment potential during land-use planning orduring the environmental assessment conductedfor preference right lease applications. Additionalunsuitability analyses may be conducted duringactivity planning (particularly for lands that werefound to be “acceptable pending further study”during land use planning). For areas where oneor more unsuitability conditions are found, butotherwise BLM continues to regard coal miningas a likely use, the exceptions and exemptionsto each applicable criterion may be applied (seech. 3). The land use plan must describe the resultsof applying the unsuitability criteria, and muststate which areas could be offered for lease onlysubject to conditions or stipulations needed tobring them into conformity with the relevantcriterion. Such areas may ultimately be leasedprovided that these conditions or stipulations arecontained in the lease.

Specific exceptions and exemptions to the un-suitability criteria, relating principally to accept-able mitigation, valid existing rights, and substan-tial financial and legal commitments are providedin the regulations. The unsuitability criteria arenot required to be applied to Federal lands whichwill be mined by underground methods unlesssuch mining will produce surface effects to whicha criterion applies.

Table 8.—The Unsuitability Criteria

1.

2.3.

4.

5.6.

7.

8.

9.

Lands in the Federal land preservation system (e.g., Na-tional Parks, Wildlife Refuges, Trails, Wild and ScenicRivers, Recreation Areas, Wilderness Areas)Lands within rights-of-way or easementsLands within 100 feet of cemeteries and rights-of-way forpublic roads, or within 300 feet of public and residentialbuildingsWilderness study areas, while under review for wildernessdesignationClass I scenic areasLands used for scientific studies involving food or fiberproduction, natural resources, or technology demonstra-tions and experimentsPublicly owned places on Federal lands which are listedon the National Register of Historic PlacesLands designated as natural areas or as National NaturalLandmarksFederally designated critical or essential habitat forthreatened or endangered plant and animal species

10. Lands containing habitat considered critical or essentialfor State-designated thhreatened or endangered plant andanimal species

11. Bald or golden eagle nests or sites, including appropriatebuffer zones that consider habitat for prey species

12. Bald and golden eagle roost and concentration areas usedduring migration and wintering

13. Falcon cliff nesting sites and appropriate buffer zonesthat consider prey species’ habitat

14. High-priority habitat for migratory bird species of highFederal interest on a regional or national basis

15. Essential habitat for resident fish and wildlife species ofhigh interest to the State (e.g., active dancing and strut-ting grounds for sage grouse, sharp-tailed grouse, andprairie chicken; critical winter ranges for deer, antelope,and elk; and migration corridors for elk)

16. Lands in riverine, coastal, and special flood plains(100-year recurrence)

17. Lands committed by the surface management agency touse as municipal watersheds

18. Natural resource waters identified in State water qualitymanagement plans and a buffer zone of one-quarter milefrom the outer edge of the far banks of the waters

19. Alluvial valley floors (AVFs) considered important foragriculture, or land outside an AVF if mining would ma-terially damage surface or underground water systemsthat supply the AVF

20. Lands deemed unsuitable by criteria proposed by a Stateand adopted by the Secretary of the Interior in rulemaking.

SOURCE: 43 CFR 3461.1.

Application of Unsuitability Criteria

In the leasing efforts associated with the fivecoal regions studied in this assessment, the un-suitability criteria were applied during both landuse planning and activity planning. Based onareas in these regions which passed the coal de-velopment potential screen, the case studies in-dicate that an average of approximately 3 to 12


percent of these areas were found to be unsuit-able for mining (see case studies in vol. 11). How-ever, it was not always possible to determine howmuch coal was removed from further consider-ation for Ieasing due to application of the unsuit-ability criteria. MFP updates or amendmentsusually give acreages or tonnages affected by pre-liminary application of the criteria during land useplanning (see table 9). However, those acreages/tonnages frequently change during activity plan-ning but new figures are not included in tractsummaries or EISs. Application of the exceptionsor exemptions to the criteria further cloud theissue, and make it still more difficult to determineexactly how much coal was excluded from de-velopment due to the criteria. For example in FortUnion, the MFPs indicate that exceptions applyto each of the relevant criteria, and in virtuallyall instances, specify that actual decisions will bemade later in the process (e.g., “Until it is suc-cessfully demonstrated that these ecosystems[wooded draws] can be restored, they will be pro-tected by exclusion from mining”) (8). In prac-tice, such decisions usually are deferred to mineplan review. It is clear, however, that BLM reliesmore heavily on the unsuitability analysis thanother means of excluding coal lands from leas-ing, such as the multiple-use screen.

Analysis of the application of the unsuitabilitycriteria in the five Western coal leasing regionsshows that, in general, those criteria which relateto features capable of being defined by lines ona map were applied most easily and consistently(see fig. 14). These criteria include:

#1. Special Federal lands (parks, trails, refuges,etc.);

#2. Rights-of-way;#3. Lands adjacent to cemeteries, public build-

ings, or roads;#4. Wilderness study areas;#6. Scientific study areas; and#8. Natural areas and national landmarks.

Although the above criteria have been the eas-iest to apply, they have not been without con-troversy. For example, in San Juan, the presenceof Navajo grave sites on tracts has not led to un-suitability determinations under criterion #6, norhas the congressional approval of a National Con-tinental Divide Scenic Trail led to unsuitabilityfindings under criterion #1. The second draft EISfor the San Juan River region projects impacts torecreation on the Trail, including safety hazards,disruption of the trail location, and impairmentof esthetics (from utility corridors, noise, dust,etc.). That EIS notes:

Portions of the Continental Divide NationalScenic Trail study corridor [are] routed throughor adjacent to the Star Lake West #2, Gal lo Wash#1, Hospah #1, Star Lake #1 or Johnson TradingPost Tracts. The actual treadway for the Conti-nental Divide National Scenic Trail has not beenestablished, In view of this situation, [criterion#1] does not require the proposed study corridorto be designated as unsuitable for surface coalmining (7).

The basic study route for the Trail is 30 mileswide and there is a zone of concern 50 mileswide on either side of the Continental Divide (see

Table 9.—Areas Screened Out During Land Use Planning for Round I in Western Powder River Basin Due toUnsuitability Criteria or Multiple= Use Tradeoffs

PRLAsAcres Million tons Acres Million tons

High and moderate coal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 464,894 16,612.2 N/A N/ANon-Federal and committed Federal. . . . . . . . . . . . . . . . . . . . . . – 195,453 –7,635.4 N/A N/AAvailable for application of unsuitability criteria . . . . . . . . . . . 269,441 8,976.8 53,335 307.7Unsuitable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . –3,571 – 128.7 0 0Available for multiple-use analysis . . . . . . . . . . . . . . . . . . . . . . . 265,870 8,848.1 N/A N/AEliminated by multiple-use analysis . . . . . . . . . . . . . . . . . . . . . . –5,108 – 194.9 N/A N/AAcceptable for further consideration . . . . . . . . . . . . . . . . . . . . . 260,762 8,653.3 53,335 307.7qncludes areas found acceptable and acceptable pending study.SOURCE: Bureau of Land Management, Proposed Coal Amendment to Wyoming Land Use Decisions, Western Powder River Basin Area, 19S1


Figure 14.—Example of Application of Unsuitability Criteria #2 and #3 in Western Powder River Basin Area

66

31

- 6 i ----

I.L—

3 6

SOURCE Bureau of Land Management, Proposed Coal Amendment(1981),

to Wyoming Land Use Decisions, Western Powder River Basin Area, Casper District


fig. 15). BLM is considering moving the corridorseveral miles east to avoid the proposed leasetracts altogether (7).

Criteria #5–Outstanding scenic areas and areasof high visual sensitivity, #1 8—Natural resourcewaters, and #20—State designated unsuitabilitycriteria, were not found to be applicable on landsconsidered for leasing within the five coal regionsstudied.

The most difficulty in application of the unsuit-ability criteria was associated with criteria #7—Historic and archaeological sites, #16–Flood-plains, #1 7–Municipal watersheds, and #19–Al-Iuvial valley floors. Problems in application of thehistoric and archaeological sites criterion relatedto the limited inventory data of these sites avail-able at the land use and activity planning stages,and the large number of potentially importantsites in certain regions. For example, most of thetract summaries for Fort Union Round 1 state:

Information on cultural resource values in thearea is scarce. The tract could contain significantarchaeological or historical sites and/or artifacts.Loss of these cultural resources (due to mining)can be considered significant, unless more in-formation is collected to indicate otherwise. ln-ventory being contracted now would raise thelevel of confidence that loss would or would notoccur. The loss of identified values, if any exist,would be long-term and irreversible (4),

The EIS for Fort Union Round 1 indicates thatbetween 55 and 95 percent of the potential leaseareas had not been inventoried for cultural re-sources, depending on the leasing alternative (seetable 10).

Application of this criterion recently has be-come more controversial because the regulationswere changed in late 1983 to require that a sitebe publicly owned and listed on the NationalRegister of Historic Places before criterion #7 ap-plies. Previous regulations also included privatelyowned sites eligible for listing in the NationalRegister. This 1983 rule change was a direct re-sponse to the debate over inclusion in the DunnCenter lease tract in Fort Union of portions of theKnife River Flint Quarry-a site eligible for listing(18).

Problems associated with application of criteria#16, #17, and #19 related principally to the defini-tion of key terms in the criteria, the lack of agree-ment as to the extent of data necessary to applythe criteria, and how the protected resourcewould be affected by mining. For example, inUinta-Southwestern Utah, Forest Service andBLM staff apparently have different interpretationsof what constitutes a municipal watershed, anddisagreements arose over the inclusion of water-shed in a tract offered for lease (10c). The cri-terion for alluvial valley floors (AVFs) is the onlyone for which the program regulations specificallyallow deferral of application to mine plan review,and final determinations regarding the identifica-tion of AVFs are almost always left to the Officeof Surface Mining (OSM) and the State permit-ting agencies. It is extremely difficult to deter-mine, prior to leasing, the exact boundaries ofidentified alluvial valley floors and whether min-ing would be prohibited on or adjacent to AVFsbecause it would interrupt, discontinue, or pre-clude farming, or materially damage water thatsupplies the AVF (see fig. 16).

With respect to the application of the unsuita-bility criteria related to wildlife (criteria #9 through#15), various approaches have been taken in landuse and activity planning. In most cases, the varia-tions in approach can be traced to differencesin professional judgment on the ability to miti-gate wildlife impacts. For example, until recentlythe standard approach for eagle protection in-volved designating a roughly one-half mile bufferzone around identified eagle nests where min-ing operations and seasonal access would be con-trolled. This leaves an island of unmined coal,which increases the difficulty of mining and rec-lamation. As a result, some regions have experi-mented with moving eagle nests in cooperationwith the U.S. Fish and Wildlife Service. Althoughthe long-term success of these experiments hasyet to be determined, the results to date seempromising. However, not all BLM field person-nel in all regions were aware of these experi-ments, and the willingness or ability of Fish andWildlife Service offices to participate in such ex-periments varied among regions.


1

/’\

/’

.

.>/I

IL . — - . — .

34-756 0 - 7 - QL3

Table 10.–Fort Union Region Known Cultural Sites by Type

Stone circle Buried site Stone Lithic Historic PercentLithic Stone with other Other of unknown alignments procurement Historic Historic Historic limited use Total Projected to be

scatters circle features habitation function and cairns and cache Homestead refuse mine burial area sites total sites inventoried

Alternative la . . . .Alternative 2 . . . .Alternative 3 . . . .Alternative 4 . . . .Alternative 5 . . . .Alternative 6 . . . .Woodson PRLA . .Woodson PRLA +

Alternative 3 . . .Meridian exchangeproposal:

NorthernPortion. . . . . . .

SouthernPortion. . . . . . .

Total . . . . . . . . .Total +

Alternative 3..

27102126116129137

4

4244444446460

999990

1313141414140

1111240

68

11111111

1

214181616220

12

33384254

1

210101313180

4555550

2222220

0133340

119234276272292326

6

119-427234-766

276-1,016272-1,056292-1,185326-1,463

6-30

54667272757787

75

96

8590

76

130 44 9 14 4 12 18 34 10 5 2 3 282 282-1,046

0 0 04 0 0 0 1 2 0 0 0 6 6-295

711

0 00 0

00

00

00

24

11

00

55

17-26723-528

11

137 44 9 14 1 11 20 37 11 5 3 8 299 299-1,544amemti 1 s~e ~s are lmlu~ in the figures for Alternatives 2 thrwgh G.

SOURCE: Bureau of Land Management, Forf UrIion Regional Cod Environmental hnpact Si%kwwf, Draft, July 1982.


Figure 16.—Stylized Diagram of an Alluvial Valley Floor

Subirrigatedalluvium

SOURCE: Dollhopf, Wendy, Goerlng, and Hedst)erg, ‘“Hytjrolo~y of a watershed with Subirrioat@ Alluvial Materials in CroD Production,” Montana Agricultural ExDerl-ment Station Bulletin 715, 1979, - - -

Application of the criteria relating to threatenedand endangered species, migratory birds, andprotecting habitat of species of high state interestgenerally was resolved by the use of mitigationmeasures which allowed areas with these char-acteristics to be carried forward in the process(see discussion of mitigation measures). However,in some regions considerable disagreement ex-ists in defining wildlife habitat and its regional im-portance, particularly critical winter range. Forexample, in the Green River-Hams Fork region,critical winter range for mule deer, elk, andpronghorn antelope is an important issue. Threepotential lease tracts exemplify the variation intreatment of this issue in the leasing process:

Atlantic Rim: Critical elk winter range occurson part of the tract. Up to 550 elk (19 percentof the Baggs herd) winter on and near the tract.During land use planning, a decision on the suit-ability of this tract was deferred until more infor-mation on the herd’s range was available. How-ever, there was concern from State and localgovernments that if, subsequent to the study, thistract were to be found acceptable, the area couldnot be offered unless it had been included in landuse and activity planning. Consequently, Atlantic

Rim was carried through activity planning and in-cluded in the preferred alternative in the EIS forRound II (2).

Northeast Cow Creek: Critical winter range forelk exists on this tract and could be adversely af-fected by coal transportation to and from the pro-posed underground mine. As with Atlantic Rim,during land use planning BLM decided to deferdetermining acceptability for leasing pending theoutcome of wildlife studies. Based on local in-terest in coal development, the tract was carriedthrough activity planning. However, it was notincluded in the preferred alternative for RoundII (2).

Red Rim: SMCRA allows citizens to petition foror against designation of lands as unsuitable forsurface mining. The National and Wyoming Wild-life Federations petitioned to have the Red Rimtract (“deferred pending study” during Round I

and considered acceptable for Round II) declaredunsuitable. The petition alleges that critical win-ter range for pronghorn antelope would be ad-versely affected by mining, and that reclamationis not economically feasible. An intervention peti-tion was filed by the surface owner, arguing that


the tract was reviewed for suitability during plan-ning for Round I lease sales. A final Petition Eval-uation Document/EIS is scheduled to be com-pleted in April 1984. BLM has found it difficultto evaluate the unsuitability petition “sinceno site-specific mining plan . . . has been sub-mitted. ” The analysis therefore draws on previ-ous BLM and USGS studies on the tract, as wellas data on mining and reclamation at other ac-tive coal mines in the area and from the prob-able lessee (2).

These examples illustrate some of the difficul-ties in applying the unsuitability criteria relatedto wildlife. Accurate data on wildlife habitat andits local or regional significance often are notavailable during land use planning (or even activ-ity planning), and it is unclear whether BLM hassufficient expertise to determine whether a miti-gation plan submitted pursuant to a lease stipula-tion will be adequate. Moreover, disagreementsamong experts on these factors mean that deci-sions on wildlife-related unsuitability criteria oftenare political rather than biological or ecological.

Finally, it is important to note the 1982 rulechanges concerning the unsuitability assessmentprocedures. Under these changes, which are dis-cussed in greater detail in chapter 3, the appli-cability of the exceptions to the unsuitabilitycriteria was expanded. The 1979 regulations spe-cified that the exceptions should only be consid-ered when one unsuitability condition exists inan area free of other unsuitability conditions;the 1982 rules provide for application of the ex-ceptions and exemptions in areas where one ormore unsuitability conditions are found (43C.F.R. 3461.3-1). Given the already extensive useof exceptions under the 1979 regulations, and thefact that most areas reviewed for unsuitability todate were evaluated under those regulations, therevised rule may have little effect on current prac-tice in application of the unsuitability criteria.Other changes made in the rules governing theuse of the unsuitability criteria include:

● the narrowing of criterion #7 for historic andarchaeological sites;

● elimination of an opportunity for public com-ment specifically on application of the cri-

●

teria (separate from the review of the overallland use plan); andelimination of agricultural crop productionas a use of rights-of-way on Federal landsmeriting an unsuitability designation.

Analysis

In most instances, application of the unsuita-bility criteria has not been controversial. How-ever, when controversies do arise, one of themost basic concerns associated with the criteriarelates to BLM’s ability to make definitive find-ings during land use planning and/or activity plan-ning as to the unsuitability of areas for mining.

Under the present leasing program, unsuitabil-ity tends to be viewed as a “black and whiteissue” (i.e., a piece of land is either “acceptable”or “unsuitable”). This means that the unsuitabilitycriteria usually eliminate only those lands withobvious “fatal flaws, ” giving careful considera-tion to the exemptions and exceptions to the cri-teria as provided in the regulations. Where anunsuitability decision is not clear-cut, due tolimitations on available data or other constraints,potential problems are “flagged” to be evaluatedin detail at the activity planning or mine plan re-view stage when additional data become avail-able. As a result, there has been little justifica-tion for BLM to “bite the bullet” in applicationof the unsuitability criteria, and difficult decisionscontinually have been deferred and the excep-tions and exemptions used extensively (see dis-cussion of “Deferral of Decisionmaking”).

Rather than finding areas to be unsuitable, BLMgenerally prefers to “exclude” areas within a tractfrom mining (through lease stipulations) unlessthe lessee demonstrates that impacts can be miti-gated or lands reclaimed (6). This approach main-tains flexibility, because it is possible at mine planreview to reinstate such “excluded” areas throughmitigation requirements, but tract boundariescannot be expanded to redesignate “unsuitable”areas as “acceptable” once a lease has beenissued. Thus, this approach may better accom-modate future changes in mining and reclama-tion methodologies and technologies (e.g., po-

Ch. 4—Planning and Environmental Assessment in the Federal Coal Leasing Program Ž 89

tential advances in habitat mitigation practices asnoted in the Fort Union Coal Region Case Study;see vol. II). However, it also can be viewed asfurther evidence of deferral of decisionmaking.The relative merits of earlier versus later decisionson environmental compatibility are discussed fur-ther in the section on “Deferral of Decision mak-ing, ” below.

Continued concern about the application of theunsuitability criteria and the extent of utilizationof the exceptions and exemptions for any par-ticular tract can be reflected in the summary rank-ing for that tract by the Regional Coal Team. Forexample, concerns about eagle protection, flood-plains, and alluvial valley floors contributed tothe RCT’s decision to lower the ranking of theLay Creek Tract in the Green River-Hams ForkCoal region (see table 11). This tract has not beenincluded in the preferred alternative in eitherround of leasing in this region, but could beoffered in Round 1 I under a maximum leasingscenario.

Data were insufficient in many cases to applythe criteria properly. The EISs for all of the re-gions acknowledge data deficiencies, particularlyabout historic and archaeological sites, criticalwinter range for wildlife, municipal watersheds,and alluvial valley floors. The cutbacks in the re-source inventory program within BLM for the col-

Table 11.—RCT Rankings for

Iection of additional basic resource data mayhave contributed to this problem (see discussionof “Data and Analysis”). Data collection andavailability in split estate areas also create prob-lems in the application of the unsuitability criteria(see discussion of “Leasing on Split Estates”). Theamount of coal-bearing lands that must be re-viewed in the Iand use planning process also canhave a significant effect on the quality and quan-tity of data available to support application of theunsuitability criteria (i.e., the larger the area, theless likely that sufficient high quality data will beavailable to make final unsuitability determinations).

Numerous instances of “acceptable pendingfurther study” determinations relative to applica-tion of the unsuitability criteria were found in thefive leasing regions. (No finding of “unacceptablepending further study” is utilized by BLM.) Themore complex the criterion, the greater the like-lihood that its application will be deferred (e.g.,the widespread practice of taking advantage ofthe option to defer application of the alluvialvalley floor criterion, deferral in application ofcriterion #1 5—protection of habitat of species ofhigh state interest). BLM points out that no leasetracts have been offered where an “acceptablepending study” determination still pertains, al-though numerous tracts have included lease stip-ulations requiring data collection to resolve

Lay Tract, Rounds I and II

Ranking factors Round I Round II

Coal economics . . . . . . . . . . . . State: medium —aBLM: high

Environmental . . . . . . . . . . . . . . State: low—a

BLM: mediumSocial economic . . . . . . . . . . . . State: low —a

BLM: high

Summary ranking . . . . . . . . . . . State: low moderateBLM: high

Comments . . . . . . . . . . . . . . . . .State ranked as least desirable of Colorado Lack of transportation-diverse surfacetracts because of transportation system ownership—conservation of resource—concerns. Possibility of population potential wildlife and reclamationimpacts to MaybeIl. BLM believes railroad problems—alluvial valley floor andwill be extended from the east. One of the lambing areasmost competitive tracts due to itsisolation from existing operations. AVFdivides tract

aNOt broken down by subfactors in Round II Draft Els.

SOURCE: Bureau of Land Management, Green River-Hams Fork Firrai Environmental Impact Statement, Coal, vol. 1, August 19S0; and Draft Environmental Impact Statement,Coal, Gtwn River-Hams Fork Region, Round Two, 19S3.

90 • Environmental Protection in the Federal Coal Leasing program

uncertainties about impact mitigation or tractreclaimability (see discussions of “Mitigation Re-quirements” and “Deferral of Decisionmaking”).

It should be emphasized that considerable dis-agreement exists as to the extent of informationneeded to make informed decisions about the un-suitability criteria. For example, what level ofsurvey is needed prior to a lease offering to makesupportable determinations about historic and ar-chaeological sites? These decisions are scheduledto be made during the first stage of the leasingprocess, when the fewest data are available andthe largest land area must be evaluated. If theleasing program continues to experience prob-lems related to inadequate data to make final un-suitability determinations during land use plan-ning, perhaps the program could be restructuredto explicitly allow those determinations to be de-ferred to activity planning, so long as the datawould be available prior to final tract ranking andselection of the tracts to be included in the pre-ferred alternative.

BLM has undertaken some special data-collec-tion efforts to address problems encountered inapplication of the unsuitability criteria during landuse planning (e.g., wildlife studies in several re-gions after preparation of the MFP Update/Amendment revealed data gaps). However, time,staff, and budget constraints largely precludedsubstantial collection of new data for purposesof applying the unsuitability criteria (e.g., therewas little opportunity for field studies in some re-gions). In addition, in some cases, participationby other agencies in application of the unsuita-bility criteria was limited. Finally, it was noted thatin numerous cases BLM did not use relevant ex-isting information (e.g., information contained inpermit applications for nearby existing or pro-posed coal mines; see discussion of “Data andAnalysis”).

Possibilities for Expansionof the Unsuitability Criteria

A number of recommendations have beenmade for additional unsuitability criteria, includ-ing criteria for wetlands, Tribal sacred sites, singlegrave sites (as opposed to cemeteries), paleon-

tological sites, producing oil and gas wells, otherreserved Federal lands (e.g., military reservations),air quality, and reclaimability. Some parties alsobelieve that an additional criterion relating to “in-sufficient data” is merited.

Wetlands typically are protected under one ormore of the existing unsuitability criteria (e.g.,floodplains or alluvial valley floors). Oil and gaswells and other reserved Federal lands generallycome under the multiple-use screen, althoughthat screen has not been applied consistently insuch circumstances (e.g., many of the tracts con-sidered acceptable for leasing in Fort Union over-lap a producing oil field and important defenseinstallations). As a result, it has been suggestedthat a new criteria be established for producingoil/gas areas, and that the exclusion for reservedFederal lands, such as military reservations, bereinstated.

In the San Juan region, considerable debate hascentered on how to deal with sacred sites. Cur-rently, lands containing such sites continue in theleasing process but with stipulations aimed at re-quiring consultation and allowing ceremonies oflocal Native Americans when such sites will bedisturbed by mining. With regard to single gravesites, the general approach has been either toestablish buffer zones (similar to protection ofcemeteries) if the grave sites are to remain inplace or to mitigate the impacts (including con-sent required under State law) if they are to bemoved.

Paleontological resource issues have beenmuch debated (particularly in San Juan) with lit-tle agreement as to the value of in-situ preserva-tion. Responses to the problem have varied fromtemporarily excluding areas from leasing (e.g., theFossil Forest in New Mexico) to developing plansto deal with paleontological sites encounteredduring mining (10a; 8b).

With respect to an unsuitability criterion relat-ing to air quality, problems resulting from min-ing (principally fugitive dust) generally are con-trollable through specific mitigation measures tobe applied at the mine plan stage. Compliancewith air quality laws and regulations is incor-porated by reference to the Clean Air Act in coalleases and in surface mine permits.


Considerable debate exists as to the need foran additional unsuitability criterion for reclaim-ability. Currently, reclamation potential is as-sessed by BLM during activity planning and theresults of that assessment considered by the RCTin tract ranking. (However, there appears to belittle relationship between such assessments ofreclamation potential and overall tract rankings;see table 12.) Some participants in leasing firmlybelieve that the intent of section 522 of SMCRAis that areas should be excluded from leasing ifreclamation pursuant to SMCRA is not techno-logically and economically feasible. Further, theycontend that it is only prudent to gather the nec-essary data and make the reclaimability decisionduring the leasing process because permittingagencies are more likely to impose mitigation re-quirements than to exclude areas from mining.Therefore, from both statutory and policy stand-points, some parties recommend that an unsuit-ability criterion relating to reclaimability should

be applied in the leasing program. The NationalResources Defense Council (NRDC) currently issuing BLM over the lack of an unsuitability cri-terion for reclaimability (15).

Other participants in leasing contend that re-claimability is assessed implicitly through applica-tion of all 20 of the unsuitability criteria, or thatreclaimability can only be assessed appropriatelyat the mine plan review stage when sufficient de-tailed information regarding soils, vegetation, andthe hydrologic system will be available. In addi-tion, at that stage, SMCRA places an explicitaffirmative burden on the permit applicant todemonstrate that reclamation is technically andeconomically feasible. A positive finding on re-claimability prior to leasing could jeopardize theability of a permitting agency to deny all or partof a mine plan due to a failure to demonstratesuccessful reclamation.

MITIGATION REQUIREMENTS

The Programmatic EIS issued by DOI in 1979for the Federal coal management program defines“mitigation” as “. . . a policy, procedure, or ac-tion intended to avoid, minimize, or help com-pensate for damage that could be caused by deci-sions made by the Department of the Interiorabout the management of Federal coal” (3). Mit-igation is intended to protect individuals andcommunities from potential (or projected) socialand economic impacts, and to protect the phys-ical environment (3). Mitigation techniques canbe specific or generic, and can address either site-specific or cumulative impacts. They can be de-signed to accommodate uncertainties about po-tential impacts or tailored to cover well-under-stood mining and reclamation situations.Requirements for impact mitigation included ina lease or mining permit might reiterate require-ments of current laws and regulations, or theymay impose higher standards. They usually applyto lease tracts, but may cover offsite locations af-fected in some manner by the mining and recla-mation operations.

This section discusses the role of lease stipula-tions as a means of ensuring that Federal coal isdeveloped (and reclaimed) in an environmentallycompatible manner. The section outlines the ra-tionale for imposing stipulations and conditions,discusses their uses and when they might be im-posed, and documents the controversy that sur-rounds their use. Mitigation requirements forsocial or economic impacts of coal leasing or min-ing are not addressed in this report. * Othermeans of achieving mitigation, such as excludingareas from mining based on multiple-use tradeoffsor the unsuitability criteria, are discussedseparately.

*It should be noted that a 1983 BLM memorandum specifies that“the choice of mechanisms by which off-site impacts (i.e.,socioeconomic) can be handled by the local communities” ShOUldbe a State responsibility. Therefore, the memo directs that “the Bu-reau of Land Management should not be developing social or eco-nomic mitigation stipulations for Federal coal leases” (1 1a).


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The Role of Mitigation Requirements

The development of mitigation requirementsis an essential element of compliance with theNational Environmental Policy Act (NEPA) andwith the specific goals and standards of FCLAA,FLPMA, and SMCRA. Based on these statutorymandates, the Federal coal management programwas designed to employ increasingly specific en-vironmental mitigation measures from land useplanning through mine development and recla-mation.

Portions of coal resource areas maybe droppedfrom further consideration for leasing through-out the process (mitigation through “avoid-ance”). For example, application of the unsuita-bility and multiple-use screens during land useplanning mitigates impacts by screening out areaswhere other resource values are deemed moreimportant than coal development (see table 9).Alternatively, decisions on particular areas mightbe deferred until the impacts can be mitigatedmore effectively (after new mining or reclama-tion techniques are developed), or are consid-ered necessary (e.g., in an energy crisis).

The EIS provides a further opportunity for mit-igation of adverse impacts during pre-lease plan-ning. The CEQ regulations implementing NEPArequire inclusion of “appropriate mitigationmeasures” where “mitigation” is defined as:avoidance; minimization; rectification (repair,rehabilitate, restore); reduction over time; orcompensation (40 C.F.R. 1502.14(f)). A lease typ-ically includes stipulations from these and othersources intended to ensure mitigation, or at leastto alert the permitting agency and potential bid-ders that mitigation will be necessary.

Toward the end of the leasing process, whenmore comprehensive data and analyses are avail-able, conditions may be imposed on a miningpermit to require mitigation of a specific environ-mental impact, to avoid an impact completely,or to specify use of a technology or methodol-ogy to achieve mitigation. The final check on mit-igation is onsite inspection and enforcement ofthe laws and regulations (and policies) designedto control the adverse environmental impacts ofcoal development. Monitoring and inspection of

ongoing mining operations generates additionalinformation which can help improve the under-standing of environmental effects and the efficacyof mitigation measures.

All of the mitigation opportunities listed abovehave been employed in the coal regions studiedin this report. However, the limitations on theadequacy of pre-lease data and analyses (dis-cussed separately), as well as departmental poli-cy to make as much coal available for lease asis environmentally acceptable, have meant thatthe frequency of the use of pre-lease mitigationmeasures and the stringency of the requirementsimposed have varied from region to region.

Origins of Mitigation Requirements

All parties to the Federal coal management pro-gram have opportunities to propose lease stipula-tions or permit conditions they consider neces-sary to reduce or compensate for adverseimpacts, although BLM and the permitting agen-cies have the final responsibility for imposingstipulations or conditional In generaI, the publicparticipates more actively in pre-lease planningthan mine plan review, and thus is more involvedin developing lease stipulations than permit con-ditions. However, substantial variation existsamong regions in terms of the degree to whichparties other than BLM and potential lessees wereinvolved in formulating lease stipulations, and thetypes of concerns introduced by those parties.

For example, well-organized public input re-sulted in development of a series of subsidenceand water resource protection stipulations for alease tract in the Colorado portion of the Uintaregion. In the same region, U.S. Forest Serviceconcern led to use of a relatively detailed leasestipulation regarding monitoring of subsidence(see Box A). National Park Service and publicconcern resulted in specific mitigation require-ments for the protection of cultural resources inthe San Juan coal region. Similarly, Federal andState wildlife authorities precipitated special leasestipulations for protection of game and nongamespecies in Green River-Hams Fork, Fort Union,and San Juan, and the U.S. Fish and Wildlife Serv-ice has been instrumental in the development of

many of the more substantive mitigation meas-ures to protect threatened and endangered wild-life species.

Proposed lease stipulations typically are sum-marized for review three times during the pre-Ieasing process: when the Management Frame-work Plan is updated or amended (or an RMPis prepared) to support leasing decisions, duringSite Specific Analysis, and in the EIS. However,their evolution usually is not well-documentedand may be difficult to trace. Final versions ofstipulations are published at the time of lease of-ferings and when the lease is issued. Because de-tailed descriptions of specific mining operationsare not available when a tract is leased, stipula-tions are reviewed and revised, if necessary, ateach step of the leasing process and again at themine plan stage. Any modifications made to stip-ulations after a lease is issued must be agreed toby both BLM and the lessee. Permit conditionsmay be imposed during review of the mining andreclamation plan, or inspection and enforcementof a mining operation. In general, the level oftechnical and site specificity in mitigation re-quirements increases over time as more data be-come available. Lease stipulations imposed early

in the process are more likely to exclude areasfrom further mining, while permit conditions tendto accommodate mining activity as long as it isconducted in an environmentally compatiblemanner.

Land Use Planning

Decision documents for updating or amendingthe Management Framework Plan (MFP) or pre-paring a Resource Management Plan (RMP) usu-ally contain mitigation measures that haveevolved from staff field work, earlier planningactivities, consultation with other regulatory agen-cies, application of the unsuitability and multiple-use screens, and public participation. For exam-ple, in applying the unsuitability criteria, addi-tional inventories needed to make unsuitabilitydeterminations might be described, or mitigationtechniques that will protect the affected resourcesmay be identified, or areas that are closed to cer-tain activities may be delineated (see fig. 17).Thus, the San Juan-Chaco MFP Update limits dis-turbance of paleontological resources in the FossilForest area for 10 years and protects known im-portant Chacoan and other archaeological sitesand Navajo sacred sites through lease stipulations


Figure 17.—Potential Buffer Zones Resulting from Application of the Wildlife Unsuitablilty Criteria,Western Powder River Basin

Acceptable pending study, criteria 15:sage grouse strutting grounds,sharptail arouse dancing wounds- -

31

SOURCE: Bureau of Land Management, Cksper Dlstrlct, CIMI Amendment to Wyoming Land USe Oecisions, Western Powder River Basin Area (19S1).

96 Ž Environmental Protection in the Federal Coal Leasing Program

that prohibit surface disturbance or subsidencein particular areas. Other stipulations proposedin that MFP Update specify that impacts to wildlifehabitat will be mitigated, require compliance withany State-approved water replacement plan, andmandate post-mining transfer of a lessee’s waterwells to BLM.

Lease stipulations developed during land useplanning are carried forward to, and reassessedduring, activity planning. However, the docu-ments supporting a decision to impose stipula-tions during land use planning typically includelittle documentation. As a result, it maybe diffi-cult for interested parties to determine whethersufficient data were collected to justify any sug-gested stipulations or other recommendationssuch as declaring areas acceptable or unsuitablefor further consideration for leasing.

Activity Planning

During activity planning, the analysis per-formed to update an MFP to support leasing deci-sions is refined and site specific analyses are com-pleted on tracts carried forward from land useplanning as acceptable for further considerationfor leasing. With the development of more com-prehensive environmental resource data duringactivity planning comes the potential to identifymitigation requirements that are more tract-spe-cific, as well as to find major obstacles to miningthat were not identified earlier. However, be-cause of the tract-specific nature of the analysisthat supports activity planning, little considera-tion can be given to the cumulative impacts ofthe development of several tracts within one areaor to the mitigation of such cumulative impactsat this stage unless a requirement for mitigationof cumulative impacts has carried through fromthe MFP Update.

The detailed inventorying and analysis requiredfor activity planning can be a time-consumingprocess, and schedule and staff limitations canmean that lease stipulations developed duringland use planning may not be reevaluated at thisstage. In some instances, “boiler plate” stipula-tions are developed in SSAs. For example, in theSan Juan region, the SSAs included 12 genericmitigation requirements (later dropped) applica-

ble to the surface and/or underground tracts con-sidered acceptable for leasing.

During preparation of the regional ElS–the sec-ond major environmental analysis in activity plan-ning—the more significant anticipated impacts ofmining on lease tracts are evaluated in detail, in-cluding potential cumulative impacts, and alter-native or additional mitigation requirements thatcould reduce or eliminate adverse effects are pre-sented for consideration by the Secretary in thefinal leasing decision. Because EISs are based ona “worst-case” analysis of the potential impactsof mining, they tend to report a wide range ofpossible mitigation measures, including the leasestipulations identified in the MFP Update andSSAs. For example, the second draft EIS for theSan Juan River region includes eight pages of“alternative mitigating measures” for air quality,paleontology, water resources, wildlife, culturalresources, wilderness, recreation, land uses,transportation, social economic factors, andAmerican Indian concerns. That section is pref-aced by the following statement:

The analysis of the environmental effects of theproposed action and major program alternatives

. describes the environmental effects remain-ing after application of and compliance with allregulations, statutes, standard lease terms andagency committed measures such as specialstipulations to carry out the results of the applica-tion of unsuitability criteria. This section on miti-gating measures describes additional actions thatmight be taken to further reduce the adverse ef-fects of the proposal. In accordance with CEQregulations, these additional measures are notincluded in the proposed action or analyzed in[the ElS]. Some of the measures listed are alter-natives to existing requirements; others covernew areas. These measures could be requiredby BLM, 61A, OSM or the State of New Mexico.A decision whether to adopt any of these meas-ures will be made as part of the process todecide whether and how much coal will beleased (7).

As noted previously, proposed lease stipula-tions can be refined or eliminated at any stageof the leasing process, and some of those devel-oped during land use planning and SSA may notbe carried forward in the regional EIS if the anal-ysis in that document indicates that less restric-


tive mitigation measures are adequate. This is thecase with the boiler-plate stipulations for the SanJuan region (mentioned above), which weredropped in the EIS (10a). Similarly, pre-EIS stipula-tions requiring data collection on particular tractsin Powder River were reevaluated and made dis-cretionary in the EIS (that the data collection“may” be required at the mine plan stage (10b)),and a stipulation in Uinta that originally restrictedall surface activities in a particular area wasrelaxed to allow a mine portal (10c). Suchchanges provide greater flexibility for the permit-ting agency and the operator, but leave BLMopen to charges that it “backed-off” on mitigationrequirements, and undermine the program’s pre-dictability and stability.

On the other hand, lease stipulations may notonly be carried forward to the EIS on a regionallease sale, but made more stringent at that stage.For example, in Uinta an early stipulation requir-ing study and coordination of construction activ-ities that might affect water supply was strength-ened to require protection of the water supply (10c).

Secretarial Issue Document

The final pre-lease review of proposed stipula-tions occurs with the Secretarial leasing decisionas documented in the SID. Again, mitigation re-quirements can be imposed, relaxed, strength-ened, or eliminated during this review. For ex-ample, in Fort Union, recommended mitigationtechniques for the Knife River Flint Quarry (eligi-ble for listing in the National Register) were car-ried forward from the MFP, but were appealedby the operator interested in the tract. The SIDnotes that the issue “is currently being addressedby a proposed rule change” (now final) that re-quires actual listing in the National Register inorder for an area to be considered unsuitableunder criterion #7 (18). This decision on the flintquarries aroused such controversy that the twomost sensitive sections of land were deleted fromthe tract for political reasons prior to the leaseoffering (1 1). However, mitigation measures es-sential to the identification of potential impactsin the EIS are not supposed to be relaxed ordropped in the SID, unless the impacts of doingso are analyzed in that document, or unless the

Secretary finds the mitigation measure to be un-necessary (6).

Mine Plan Review

There are three major issues related to miti-gation measures at the mine plan review stage.First is the use of permit conditions, whichtypically are developed by the reclamationagency reviewing the permit application and arethen reviewed and negotiated by the applicant.When the regulatory agency decides that a per-mit may be issued with certain conditions, theproposed approval, along with the conditions, ismade available for public review. The policy ofmost State permitting agencies is to keep permitconditions to a minimum; i.e., to avoid imposingconditions on permits as a substitute for informa-tion that the permitting agency needs to makefindings of compliance with SMCRA and appli-cable State statutes and regulations. Thus, in theview of permitting agencies, the more specificityneeded in permit conditions, the less adequatethe plan being reviewed is likely to be.

Second, lease stipulations are reviewed at thisstage, and may be revised or dropped if BLM andthe lessee agree. Because most of the tracts Ieasedsince 1979 do not yet have approved mine plans,it is not possible to determine whether lease stipu-lations developed for those tracts will remainunchanged throughout the permit and miningprocess.

Third, does BLM have, or should the Bureaube expected to have, the expertise to evaluateresponses or revisions to lease stipulations, orshould the permitting agency be responsible forthat evaluation.

Reasons for and Types ofMitigation Requirements

Mitigation requirements can provide means ofresolving data inadequacies, alerting regulatorsand bidders to problem areas, resolving conflictsamong parties, providing for the reclamation orreplacement of resources, avoiding impacts al-together, deferring decisions, specifying site spe-cific mining or reclamation techniques, and com-pensating parties adversely affected by mining.

98 . Environmental Protact/on in the Federal Coal Leasing Program

Resolving Data inadequacies

One of the more common uses of lease stipula-tions and/or permit conditions is as a mechanismfor resolving data inadequacies. In the case oflease stipulations, these might merely defer adecision on environmental compatibility and alertthe permitting agency to the need for additionaldata, or they might require the lessee to collectspecific data. For example, in the Uinta region,a lease stipulation for a proposed undergroundmine requires detailed geotechnical studies priorto construction of a portal and associated surfacefacilities, because the area is prone to landslides(10c). Other examples include lease stipulationsrequiring inventories of water quality and/orquantity in Uinta-Southwestern Utah and PowderRiver; of cultural resources and paleontology inSan Juan and Uinta; and of wildlife habitat in FortUnion (see Box B). Some public interest groupshave expressed concern that, to the extent thatlease stipulations are being used to fill data gaps,they fail to provide adequate protection for re-sources yet to be identified.

Permit conditions also can be used to requirethe collection of additional data in order to makefinal decisions about mining or reclamation meth-ods in particularly sensitive areas. In most cases,permit conditions for data collection specify mon-itoring of certain aspects of mine developmentin order to better understand particular types ofimpacts.

Mitigation requirements specifying data collec-tion raise several issues. Because of the expecta-tion that BLM will have collected sufficient datafor informed decisionmaking pre-lease, somedata-related lease stipulations are perceived asindicating that BLM was not able to fulfill its landuse and activity planning mandate (see separatediscussion of “Deferral of Decisionmaking”). Aparallel concern arises when the regulatory agen-cy issues a permit with conditions that requireadditional data. However, permit conditions typi-cally do not defer decisions (do not approve min-ing in specified areas pending evaluation of thedata), unless the additional data needs are keyedto determining appropriate mitigation or reclama-tion techniques.

Alternatively, if pre-lease data are viewed asadequate, then lease stipulations requiring thelessee to collect additional data may be viewedas duplicating or usurping the authority of the per-mitting agency. For example, proposed stipula-tions requiring an inventory of water rights anduse on a tract in Uinta (the Paonia D Seam tract;see below), have been criticized as an unneces-sary restatement of State procedures applied toall such mining situations, while environmentalgroups and local residents feel the added re-quirements are necessary (10c).

In other instances, lease stipulations may bemore stringent than, or in conflict with, the per-mitting agencies’ normal procedures. For in-stance, in the San Juan region, a standard BLMproposed lease stipulation requires interruptionof fossil-disturbing activities if fossils of possiblesignificant scientific interest are uncovered. TheState of New Mexico originally had a separate vol-untary procedure for mitigating paleontologicalimpacts. Although no conflict might have existed,the differences between the two measures hadnot been assessed completely when the State putforward a revised mitigation program, which cur-rently is under review by BLM (6).

A second major concern about lease stipula-tions requiring data collection is the ability toevaluate the results. For instance, in the case ofthe paleontological stipulation in San Juan (men-tioned above), extensive disagreement still existsamong experts on the appropriate mitigationmeasures for important fossil resources in thearea. Thus it is unclear who will evaluate the in-formation from lease tracts if fossils of possiblescientific interest are found during mining, andwhat criteria will be used to determine whetherthe data submitted are adequate to satisfy the stip-ulation. Other lease stipulations that pose thisissue include requirements for ethnographic stud-ies in San Juan, for hydrologic data in Powder Riv-er, for extensive ecological resource monitoringin Uinta, and for certain wildlife studies in GreenRiver-Hams Fork.

Options for resolving concerns about lease stip-ulations that require data collection include usingdiscretionary language in the stipulation, such

Ch. 4—P/arming and Environment/ Assessment in the Federal Coal Leasing Program • 99

.

100 • Environmental protection in the Federal Coal Leasing Program

that it merely alerts the lessee and the permittingagency to the possible need for additional data,and thus provides flexibility at the mine plan re-view (the Powder River hydrologic data stipula-tions mentioned previously); or providing that thestipulations are not intended to conflict with orpreempt regulatory authority and can be re-negotiated during mine plan review.

Raising Red Flags

A second common use of lease stipulations isto raise “red flags” indicating that special atten-tion should be paid to particular segments of themining and reclamation plan (see Box C). Thisuse of stipulations usually reflects a desire to alertpermitting agencies or bidders to potential envi-ronmental problems associated with a tract. Asnoted above, such stipulations also are useful forindicating potential data-collection needs to rem-edy anticipated deficiencies in baseline data re-quired for the mining and reclamation permit.

For example, the lease stipulation mentionedpreviously that requires detailed geotechnicalstudies in the Uinta region might duplicate Statepractices, but it also serves as advance notice tothe lessee that more detailed information will berequired in the mine plan than might be expectedunder normal circumstances. Therefore, the stip-ulation might help avoid delays in processing ofthe permit application. Other lease stipulations

clearly are intended to suggest mitigation tech-niques that otherwise might be overlooked at thepermit review stage (e.g., the proposed stipula-tions governing the treatment of sacred sites inthe San Juan region).

Resolving Conflicts

When all parties to a particular leasing or per-mitting decision get together to develop mitiga-tion requirements, those requirements representa form of conflict resolution. The most notableinstance of this is the detailed set of special leasestipulations for the protection of water and wa-ter rights at the Paonia D Seam Tract in the Uintaregion, which were negotiated by local residents,environmental groups, the probable lessee* theState, and BLM (see Box D). An example of amore general conflict resolution situation is thepaleontological stipulation in San Juan, which re-sulted from disagreement among scientific ex-perts and among agency decisionmakers over theproper mitigation measures for regional fossilresources.

Tract-specific negotiated lease stipulations raiseconcerns if ail parties to the leasing decision arenot involved in the negotiations. For instance, if

*The Paonia D Tract was not considered a maintenance tractunder the program regulations, even though the company with themost interest in the tract bid on it as a means of continuing opera-tions at an adjacent mine and was the sole bidder.


solved in the mining plan.”

SOURCE: 1981 Tract Summar&s.

more than one company had been interested inthe Paonia D Seam, the competition might havebeen chilled by the idea of having to comply withlease stipulations negotiated by another com-pany. Moreover, some companies feel that con-flict resolution stipulations tend to be more de-tailed than other types, and thus unduly constrainflexibility at the permit review stage.

permit conditions also can be used to resolveconflicts through public and interagency reviewrequirements. However, the technical nature ofthe mine plan and permit application usually re-stricts such public review. Moreover, except inthe few instances when an EIS is issued on a minepermit, the review period and geographic extentof notice of an opportunity to comment usuallyare limited.

Detailing Mitigation Techniques

Fourth, tract-specific lease stipulations and per-mit conditions are used to detail particular min-ing, reclamation, or mitigation technologies ormethods. Thus, the lease stipulations for thePaonia D Seam tract in Uinta-Southwestern Utahspecify water re-routing requirements (see BoxD), and stipulations negotiated for the Circle WestIll tract in Fort Union provide detailed optionsfor the recovery, replacement, or mitigation ofwildlife habitat loss (see Box E).

Lessees and permitting agencies view lease stip-ulations that detail particular mining or mitigationtechniques as at least redundant (when they re-peat requirements that would be incorporated inthe mine plan or imposed as permit conditions),

34-756 0 - 8 - QL3


and at most as usurping the permit agencies’authority to make findings under SMCRA abouttechnical and economic reclamation potentialand methodologies. In all cases, such lease stip-ulations, if not renegotiable at the permit applica-tion review, may remove the flexibility neededto adapt to new data and changes in technologyand methodology (e.g., the ability to move eagles’nests). Detailed technical lease stipulations thatincorporate quantitative standards also tend tolimit the permitting agencies’ and lessee’s abilityto adapt to changing conditions or new infor-mation.

Excluding Areas From Mining

Lease stipulations or permit conditions can beused to exclude areas from mining (or from cer-tain types of mining). In some cases, avoidancemeasures relate to particular areas within a leasedtract. For example, lease stipulations or permitconditions might establish buffer zones aroundsensitive areas such as wildlife habitat, which maybe absolute, seasonal, or conditioned on wildlifepresence, or might specify particular types of im-pacts that are not allowed on leased tracts (e.g.,“no surface disturbance,” which usually meansunderground mining only; or “no surface occu-pancy,” which extends to portals and other sur-face facilities associated with underground min-ing). Alternatively, avoidance measures can beused to adjust tract boundaries prior to leasing,either through application of unsuitability or mul-tiple-use screens, or through an explicit decisionto avoid mining (e.g., deletion of the two sectionsof the Dunn Center tract in Fort Union that con-tain portions of the Knife River Flint Quarry).

Controversy has arisen over the difference be-tween lease stipulations that declare areas unsuit-able for mining (whether as a result of the un-suitabiIity/multiple-use screens or other decisions)and those that permit mining but require mitiga-tion of impacts. When the parties to a leasing de-cision disagree about the ability to mitigate im-pacts or the reclamation potential of an area,environmental and other public interest groupswould prefer to see the area excluded from min-ing altogether, while operators expect the areato be carried forward and a final decision madeon avoidance versus mitigation at mine plan re-

view, when extensive data on potential impactsand alternative mining and reclamation tech-niques are available.

Summary

Because of the numerous means and oppor-tunities for mitigation, many of the participantsin leasing argue that the coal management pro-gram is unduly biased toward environmental pro-tection. Proponents of the “environmental bias”in the program argue that multiple pre-lease mit-igation reviews are necessary as more and moredata become available, because post-leasing deci-sions are more likely to accommodate mining.They note that a successful mitigation programalso will allow coal producers and users to makemore timely and secure development plans, andthat the principal emphasis of the leasing programcontinues to be to produce an adequate amountof coal.

DOI responds that it should be responsible fordetermining, with reasonable certainty, that aspecific tract can be developed without severeor permanent harm to the environment and fordetermining the stipulations needed to ensure thisprotection prior to lease sale, rather than waitingfor this determination to be made at the miningplan stage. As noted in the 1979 ProgrammaticEIS:

Often at the time of issuance or continuancethere is insufficient information about proposedoperations to assure stipulations will cover allproblem areas. Therefore, when an operationsplan is submitted, stipulations are reviewed andrevised or added to make them fit the specificsituation as closely as possible (3).

OTA found that both lease stipulations and per-mit conditions play a valid role in assuring thatFederal coal is developed in an environmentallycompatible manner. Lease stipulations can be val-uable for alerting bidders and the permittingagency to potential problems on a tract that werenot within the purview of pre-lease analysis(e.g., potential cumulative hydrologic impacts).Although such stipulations may only repeat con-cerns these parties already recognize, theydemonstrate BLM’s awareness of these problems,and thus also confirm for members of the public

Ch. 4—P/arming and Environmental Assessment in the Federal Coal Leasing Program “ 105

and interest groups that the impacts will be ad-dressed at mine plan review. However, thereseems to be little point in stipulations merelyduplicating requirements of either SMCRA or theStates’ permitting programs.

Stipulations also can be valuable as a form ofconflict resolution. However, care must be takento ensure that all interested parties are includedin the negotiations, or, conversely, that no po-tential bidder who might become obligated tocomply with those stipulations is excluded fromthe negotiations. Therefore, negotiated stipula-tions are most appropriate for noncompetitiveleasing situations.

In OTA’s view, mitigation measures requiringdata collection have a limited usefulness. if suf-ficient data are available pre-lease to make an in-formed decision about environmental com-patibility, then lease stipulations for datacollection should be unnecessary. On the otherhand, if sufficient data to make a pre-leasing deci-sion are not available, then the schedule couldbe delayed or the tract not offered until the dataare collected. if it is not a decision that shouldbe made pre-lease (e.g., cumulative hydrologicimpacts), then a “red flag” stipulation probablyis more appropriate than one requiring data col-lection.

When data-related stipulations are considerednecessary, they should be designed to enhance

the decision making capability of the permittingagency. For example, in one instance, BLM,OSM, and the State of Montana worked togetherto develop a lease stipulation that addressed ahydrologic problem identified in the pre-leasingstage. In this case, BLM stipulated that the lesseeinclude at least 3 years of baseline hydrologic datain the permit application rather than the 1 yearrequired by the State’s guidelines.

Similarly, the current policy of using as few per-mit conditions as possible, by requiring issues tobe resolved in the mine plan before a permit isissued, probably provides the best basis for en-vironmentally sound decisions. An exception,mentioned previously, is when monitoring ofmining operations is needed to better understandpotential impacts before permit conditions are tai-lored to those impacts.

Finally, it should be noted that, while a highlevel of detail and specificity may not be appro-priate in stipulations related to particular miningor reclamation methods, clear and specificlanguage is needed in all types of stipulations andpermit conditions. As found in a previous OTAreport on pre-1979 leases:

Mineral explorers and developers under theleasing laws face substantial uncertainty as a re-sult of the vague and general wording of almostall the lease provisions . . . concerning non-mineral resource protection (1 7).

DEFERRAL OF DECISIONMAKINGThe insufficient time available for pre-sale plan-

ning and environmental analysis (see discussionof lease rates) has meant that BLM had to con-tinue many activities beyond the time when theywere scheduled to be completed, and thus to de-fer decisions that depend on those activities orto impose mitigation measures in lieu of makingdecisions. Such deferrals undermine the tieredstructure concept of data collection, planning,and analysis, which cannot function as intendedunder these conditions. This raises the more basicquestion, at what stage in the process should en-vironmental compatibility decisions be made,and at what level of detail.

As described in the section on “Data and Anal-ysis,” the tiered structure for pre-lease planningand assessment incorporates unsuitability deter-minations and multiple-use tradeoffs (as well asestimates of coal development potential and sur-face owner consultations) during land use plan-ning; site-specific analyses and the publication oftract profiles, tract ranking and the selection ofleasing alternatives, and preparation of a regionallease sale EIS for those alternatives, during activityplanning; Secretarial review prior to the leasingdecision; and preparation and review of a min-ing and reclamation plan. Each of these environ-mental reviews has a different purpose and focus,


and the quantity and quality of resource datagenerally increases at each stage of review whilethe amount of land being evaluated decreases asthe land moves closer to development.

The program regulations governing land useplanning allow the application of the unsuitabilitycriteria to be carried over to activity planning ifsufficient data are not available to make final un-suitability determinations earlier. “Acceptablepending further study” was BLM’s unsuitabilitydecision, for example, for the many of the wildlifehabitat areas identified during land use planningwhen additional data were needed to determinethe importance of that habitat. However, signifi-cant data material to application of 19 of the 20criteria* (or the exceptions to them) on a tractmust be available before it can be analyzed inthe final EIS for a lease sale. If such data are notavailable for a portion of a tract, but BLM feelsthat lease stipulations or permit conditions couldresolve any problems which may result from ap-plication of a criterion (or exception) after the EIS,then the whole tract may be carried forward.

For the coal areas considered in this report,BLM believes that all data were adequate to justifyleasing decisions (6). However, BLM frequentlydid not utilize all existing data sources availableto them (i.e., State reclamation experts, mine plandata from mining operations adjacent to a tract),and planning and analysis schedules were oftenso tight that they precluded detailed field assess-ments by multidisciplinary teams of experts. Asa result, BLM made extensive use of the optionof deferring unsuitability determinations to activ-ity planning or beyond.

If sufficient data were not available during landuse planning, final decisions on the multiple-useand unsuitability screens could not be made.When land use decisions were deferred to activityplanning, the time originally allotted to that plan-ning became compressed (unless the schedulefor the EIS was allowed to slip, which has notbeen the case in recent sales). As a result, lesstime was available for site-specific analysis. Fur-thermore, after tract delineation, data collectionin support of planning tends to become focused

*ln the case of the alluvial valley floor criterion, unsuitability deter-minations can be deferred to the mine plan stage.

on specific tracts rather than on a wider area ofFederal lands, which can preclude developmentof a sense of the relative regional value of envi-ronmental resources (see section on “Data andAnalysis”).

OTA found that deferral of decisions from landuse planning to activity planning detracts fromthe predictability and effectiveness of the tieredstructure concept of data and analysis; in that theamount of land to be evaluated at the second tierdoes not decrease as much as anticipated, andsite-specific analyses have to be performed fora greater number of tracts than originally includedin the planning schedule. This strained BLM re-sources and meant the SSAs were not as thoroughas might have been desirable for informed deci-sions on environmental compatibility. As a result,there was an increased risk that environmentallysensitive tracts would be offered for lease. Inmany cases, decision deferrals are directly attrib-utable to high leasing rates, which impose tightplanning schedules and pressure BLM to findmore tracts environmentally compatible. OTAalso found that deferral of decisions from BLMplanning and environmental assessment to minepIan review increases the probability (i.e., risk)that tracts with sensitive environmental charac-teristics will be mined, and promotes the overuseof lease stipulations.

The extent to which decisions were deferredvaried widely among the regions (see table 13).in Uinta-Southwestern Utah, the Colorado por-tion of the North Fork Planning Area was not eval-uated for leasing in the Round I lease sale becauseBLM considered the existing land use plans to beinadequate to provide a basis for application ofthe unsuitability criteria and other screens (7a).There was little industry interest to justify updatingthe MFP, and BLM felt the socioeconomic im-pacts of further coal development in the areawould be excessive (6). In the San Juan River Re-gion, however, the MFP was considered ade-quate until publication of the first draft EIS, wascriticized widely for data inadequacy, especiallyon cultural resources. A second draft EIS was pre-pared for the pending Round I San Juan sale (ahighly unusual occurrence) with a class II culturalresources survey-a 10 to 25 percent on-the-ground survey-reportedly completed between

Table 13.—Number of Tracts for Which Decisions on Unsuitability Criteria Were Deferred Past Land Use Planninga

Cri t ical winter Threatened Other Alluvial SpecialRegion and sale: range for and endangered wildlife valley Cultural Flood Municipal “Buffer management(no. of tracts) big game species criteria floorsb resources plains watershed zones”d areasFort Union:

Round I (23)e . . . . . . . . . . . . . . . 0/0/4 0/0/23 0/0/22 8/0/0 9/0/10 0/0/4 0/0/0 23/0/0 0/0/2Powder River

Round II (20)e. . . . . . . . . . . . . . . 0/0/0 0/1 1/0 0/1/0 14/0/0 0/20/0 0/0/0 0/0/0 0/0/3 0/0/0Green River-Hams Fork:

Round I (16)f . . . . . . . . . . . . . . . 0/7/0 0/0/3 0/0/12 14/0/0 0/13/2 0/0/9 0/0/1 0/0/3 0/0/0Round II (24)f . . . . . . . . . . . . . . . 0/7/0 0/12/0 0/7/0 4/1/0 0/6/0 1/1/1 0/0/0 2/1/1 1/0/0

Uinta-Southwestern Utah:Round II (27)f . . . . . . . . . . . . . . . 0/2/0 0/1/0 7/7/0 6/0/0 0/4/0 4/7/0 0/7/0 0/4/0 1/1/0

San Juan RiverPRLAs (26)f . . . . . . . . . . . . . . . . 0/0/0 0/0/0 0/5/0 0/0/0 0/13/0 19/0/0 0/0/0 0/15/09 0/7/0Competitive (39)f . . . . . . . . . . . 0/0/0 0/0/0 0/0/0 0/0/0 0/1/8 0/39/0 0/0/0 0/0/0 0/0/5

NOTE: OTA confidence in the numbers in this tabie varies wideiy among regions due to variability in quaiity of BLM documentation c+’I application of the unsuitability criteria. Actuai figures may be higher.

aNumber~ indicate: deci~ons explicitly deferred to OSM Or State regulatory authority/decisions deferred through ieSSe stipulationsldecisions requirin9 additional data.bAil tr=ts with Potentiai AVFS in each region were deferred.cTracts with SpSC&I notations or provisions; BLM standard iease form requires Culturai resource inventory Orr all tracts iJdOr tO development.dincludes Criteda z and 3 ss well as buffer zones for wiidiife, etc., when explicitly deferred.esource b Tract Summaries.fsource is draft EfS (second draft for San Juan Region).gFor graveslte$, applies to ail 26 PLRAs.

SOURCE: Office of Technology Assessment from Bureau of Land Management documents noted,


the first and second draft EISs to allow applica-tion of unsuitability criterion #7 (historic and ar-chaeological sites). Also in San Juan, final applica-tion of unsuitability criterion #9 (threatened andendangered species) has been deferred pendingthe completion of field surveys to determinewhether any such species are present. PRLA leasestipulations in San Juan contain a caveat that ar-chaeological surveys are not complete and thatsites considered unsuitable under criterion #7may still be found (7).

In general, the more complex the environmen-tal issue (e.g., reclaimability of alluvial valleyfloors, impacts on hydrology), the more data andanalyses are required to resolve the issue, andthe more likely that resolution will be deferreduntil later in the leasing process, or to the mineplan stage. Some of the environmental charac-teristics of potential lease tracts may change overtime (for instance, the active status of eagle nests),and BLM is reluctant to find lands with such char-acteristics to be unsuitable for leasing.

The deferral of decisions intended to be madeduring land use planning illustrates the mannerin which high lease rates have forced BLM to be-come “issue driven. ” Given the time and otherconstraints on data collection and analysis, plan-ning tends to focus on areas that must be evalu-ated because of industry interest in leasing, andtends to be considered adequate if it generateslittle controversy rather than meets any standardsor guidelines for adequacy. Although the levelof controversy is one valid measure of the ade-quacy of data, it should not be the only measure.Other measures of the adequacy of pre-sale plan-ning and data include the extent to which gapsin the data base necessitate the use of detailedlease stipulations or the deferral of decisionsbeyond the time at which they are scheduled tobe made.

Although few tracts were included in a final EISfor the recent lease sales without final unsuita-bility determinations having been made, docu-mentation of those determinations in the EIS wasnot always sufficient to judge whether the sup-porting data and analyses were adequate (e.g.,a simple statement that “application of the un-suitability criteria has been completed”). Further-

more, BLM made extensive use of the exemp-tions/exceptions to the criteria, and of leasestipulations intended to accommodate data in-adequacy. For example, in the Green River-HamsFork region, application of criterion #15 (impor-tant wildlife habitat) resulted in BLM imposinglease stipulations that require the lessee to includein the mining and reclamation plan the proposedmeans of managing species habitat requirementsoffsite during the mining process (4a). Sometimes,as with hydrology, the stipulations can be farmore complex and specific (e.g., the Paonia DSeam tract; see Box D). Lease stipulations can benothing more than an alternative means of defer-ring difficult decisions to the mine plan stage (e.g.,when the stipulations “flag” areas of concern orrequire data collection and analysis). Such miti-gation measures would not have to be used soextensively if more complete data bases wereavailable (see section on “Mitigation Re-quirements”).

Deferral of data collection to the activity plan-ning stage does not necessarily mean that a tractwill survive the pre-lease planning process. Sometracts with significant wildlife habitat, alluvialvalley floors, or other unsuitability conditionshave been “flagged” during land use planning,and then dropped from further consideration forleasing (or not included in the preferred alterna-tive) when additional resource information col-lected prior to the lease sale demonstrated un-suitability (e.g., the Bitter Creek tracts in thePowder River region and the Mud Creek andNorth Trough tracts in Uinta) (10b;) 10c). Othertracts that survived land use planning were re-duced in size as a result of BLM’s considering anunsuitability criterion after more resource databecame available during activity planning (e.g.,Renners Cove in Fort Union) (8 b).

Deferral of decision making raises the questionof when during the tiered coal management proc-ess is it most appropriate to assess the impactsof coal mining. No consensus emerges as to therole of pre-lease environmental analysis. Someargue that unless a tract contains a “fatal flaw”that would absolutely preclude mining, BLMshould flag potential problems to signal that ad-ditional data need to be collected later in the


process–either during activity planning or atmine plan review. This supports current depart-mental policy to let the marketplace determinewhich tracts are desirable for leasing. Othersargue that if BLM does not have sufficient dataand analysis to make a fully informed decisionabout the environmental compatibility of the po-tential lease tract, then that tract should not beoffered.

The coal industry believes that the current proc-ess for environmental review works. They arguethat few potential Iease tracts contain “fatal flaws”and those that do have been screened out dur-ing land use planning by the unsuitability criteriaor the resolution of multiple-use conflicts. Theindustry feels that the current process is appro-priate because most areas (except for those withfatal flaws) can be mined and reclaimed in an en-vironmentally compatible manner; it is a ques-tion of how much mitigation and reclamation willcost—a decision which should be up to individualcompanies, according to the industry.

Therefore, the industry believes that most finaldecisions on environmental compatibility shouldbe made at the permitting stage, when the mostcomprehensive data on environmental resourcesand mitigation techniques are available. Theycontend that the combination of mining andreclamation plan review and approval, plus per-mit conditions, post-permitting inspection and en-forcement, and reclamation bonds, is sufficientto ensure that leases are developed and re-claimed in a manner compatible with environ-mental laws and regulations.

Critics of the current leasing program recognizethat comprehensive data on environmental val-ues are not available until the permitting stage,but they believe that, if BLM were to perform itsdata gathering and analysis functions adequately(see discussion of Data and Analysis), then a larg-er number of tracts—including areas that are con-sidered environmentally sensitive, but may nothave “fatal” flaws–would be screened out dur-ing land use and activity planning and the EISprocess than is currently BLM practice. They citethe Otter Creek tracts in Powder River, and Atlan-tic Rim in Green River-Hams Fork as examples.Moreover, critics note that decisions during mine

permit review are more likely to impose miti-gation requirements than to close areas to min-ing, and that mine permit applications historicallyhave not been denied. They argue that all of theseconsiderations force them to seek either a polit-ical or judicial resolution of disputes with BLMover the adequacy of pre-sale data and planning.

State government views regarding the appro-priate time to make decisions on environmentalcompatibility vary. Some States have adopted anenvironmental posture and agree that more tracts(or portions thereof) should be eliminated earlierin the process. Other States are more develop-ment oriented, or want to make such decisionsthemselves, and prefer that tracts be carried for-ward and potential conflicts resolved throughmitigation measures developed by the State at themine plan stage. Wyoming officials pointed outthat besides participating on the RCTs, that Statehas two other opportunities to screen out pro-blem tracts–when the company applies for anindustrial siting permit and when they apply fora surface coal mining permit (10b).

The BLM believes that their current implemen-tation of the tiered process is adequate. They notethat data on environmental conflicts necessarilyare incomplete prior to the submission of a mineplan but that the leasing program (including RCTactivity) ensures that tracts which could not bemined are not leased. BLM staff pointed out thattheir regulatory mandate is to do the best job pos-sible using available data. They acknowledge,however, that in some instances, pre-lease anal-ysis could be improved so that fewer decisionsare deferred. As a result, BLM places heavy reli-ance on lease stipulations and the mine plan re-view process to prevent the mining of any un-suitable areas that make it through the pre-leasescreens.

It is clearly in the best interests of all partici-pants in coal leasing to eliminate tracts that arenot minable as early in the process as possible.However, issues such as reclaimability, air qual-ity, and many hydrologic concerns, are, in manyinstances, simply too complex to resolve prior toleasing. The comprehensive detail of a miningand reclamation plan and the specificity of thebaseline studies that accompany that pIan pro-


vide a better basis for informed decisions on suchconcerns. The “red flag” approach to problemidentification at the pre-lease stage sends boththe regulatory agency and industry a signal as towhere some of the permitting difficulties may lieand hence where more intensive data-collectionefforts will be necessary.

than mine-plan level information. Yet, in the cur-rent program many of these decisions are de-ferred to the mine plan due to lack of time, budg-,et, and staff to evaluate them adequately priorto leasing, or as part of overall departmental pol-icy to allow the market to determine which tractsare desired for leasing.

For most environmental issues, however, evendifficult decisions can be made pre-lease with less

REGIONAL COAL TEAMSOne of the most innovative aspects of the coal

management program established in 1979 wasthe creation of the Regional Coal Teams. TheRCTs are BLM/State organizations made up of arepresentative of the Governor from each of thetwo States in a coal region, the BLM State Direc-tor for each State involved, and the chairman,who is a BLM State Director from a State outsideof the region. Thus BLM maintains a voting ma-jority on each RCT. The RCT can have ex-officiononvoting members from other Federal landmanagement agencies such as the U.S. ForestService or Bureau of Indian Affairs, or from otherState agencies if the Governor so requests.

The RCTs play a role in policy formulation forall aspects of the coal leasing program and pro-vide specific recommendations on leasing deci-sions to the Secretary of the Interior. The RCTsconsider and suggest policies or practices for re-gional production goals and lease levels, tractdelineation, and site-specific analysis. Specificrecommendations, based on votes, are to bemade by the RCT on: tract delineation, adequacyof site-specific analysis, tract ranking, tract selec-tion, Ieasing levels, lease sale schedules, and thedevelopment of alternatives for analysis in the EIS,including selection of the preferred alternative(see table 14). The views of any State member,if different from the RCT decision, are to be doc-umented, and alternative recommendations areto be treated equally in the regional coal leasesale EIS, which becomes part of the Secretary’sfinal decision materials on the lease sale.

The RCT concept allows the States to partici-pate in the leasing program on an ongoing basis

as well as in a setting less formal than the Secre-tarial consultation with the Governors requiredunder FCLAA. This ongoing participation isstrengthened by procedures allowing affectedState agencies to participate in site-specific anal-ysis and tract ranking.

The role and the makeup of the RCTs are sup-ported by the Governors of the participatingStates. A recently proposed regulatory changethat would have removed recommendations onthe leasing level and the identification of the pre-ferred alternative for the EIS from the purview ofthe RCTs was strongly opposed by the States, andwas dropped.

The RCT framework also offers citizens of Stateand public interest groups an authoritative forumfor expressing and discussing concerns. In someinstances, the RCT has served as a focus for publicparticipation. However, the public generally ismore familiar with the NEPA process than withthe RCTs, primarily due to the longer and betterpublicized history of NEPA compared to the justrecently initiated Coal Teams. However, if theRCT process were better understood, its poten-tial for effective public participation may holdgreater promise than that of NEPA alone, becausethe RCT’s activities span a greater breadth of thecoal program activities, one of which is the for-mulation of the alternatives to be analyzed in theEIS.

On several occasions, interested parties haveproposed expanding membership of the RCT.Other Federal land management agencies havesought to gain voting representation where their

Table 14.—Summary of Tract Rankings by Regional Coal Team, Green River-Hams Fork, Round la

Ranking factorsb

Tract Coal economics Environmental Social -economic Summary ranking C o m m e n t s, High State-high

BLM-mediumLogically part of larger tract. Leasing now

may commit development of the largertract.

Underground mine. Logical extension oftwo adjacent mines. Could becomebypass tract if not leased.

Small tract, possible set aside. Noparticular problems evident.

As delineated, contains 80 acres of sharp-tail grouse habitat that was determined“unsuitable” in land use planning.Unsuitable area has since been deletedfrom tract.

Northeast part of tract may become bypassif not leased.

Cumulative impacts would be severe ifDanforth II were developed concurrentlywith Danforth I and Ill, and the Colowyomine. Concern with wildlife impact if allDanforth tracts are developed.

About 30 percent of population resultingfrom Danforth tracts would be expectedto go to Meeker. Only tract in RioBlanco County to contribute to tax basethere.

Significant wildlife range—more easilymitigated than Williams Fork Mountain.High competitive interest.

State ranked as least desirable of Coloradotracts because of transportation systemconcerns. Possibility of populationimpacts to MaybeIl. BLM believesrailroad will be extended from the east.One of the most competitive tracts dueto its isolation from existing operations.Alluvial valley floor divides tract.

High air quality impacts. (Assessment hassince changed.) Low coal recovery.Eagle habitat in sections 3, 10, 11.

Relatively low coal yield. No railroadaccess. Critical winter range area.

Bell Hock . . . . . . . . . . . . . . . . . . Medium

Empire . . . . . . . . . . . . . . . . . . . . Medium

Grassy Creek. . . . . . . . . . . . . . . High

Pinnacle . . . . . . . . . . . . . . . . . . . State-reed/lowBLM-med/high

Danforth I . . . . . . . . . . . . . . . . . .High

High

High

High

HighLow

State-mediumBLM-highMedium

State-medium

High High (assumes railtransportation)

High

HighHigh

High

State-highBLM-med/low

High High (assumes railtransportation)

M e d i u mDan for

Dan for

h II . . . . . . . . . . . . . . . . . High

h Ill. . . . . . . . . . . . . . . . . High

State-mediumBLM-high

High HighBLM-high



Hayden Gulch . . . . . . . . . . . . . . High

Lay . . . . . . . . . . . . . . . . . . . . . . . State-medium

State-lowBLM-high

State-lowBLM-medium

State-lowBLM-high

State-lowBLM-highBLM-high

Isles Mountain . . . . . . . . . . . . . Medium Low State-mediumBLM-Iow

Low

Low

MediumHigh/mediumHigh/mediumMedium

Medium LowWilliams Fork Mountain . . . . . State-low/reedBLM-medium

Rosebud . . . . . . . . . . . . . . . . . . . HighMedicine Bow . . . . . . . . . . . . . . HighSeminoe II . . . . . . . . . . . . . . . . . HighRed Rim . . . . . . . . . . . . . . . . . . . Medium/high

HighHighHighHigh/medium

HighHighHighMedium (high if

leased with ChinaButte)

HighChina Butte . . . . . . . . . . . . . . . . High M e d i u m Highalt ~hould be “ot~ that this is an extremely detailed summary of tract rankings, Few summaries break rankings down by subfactors or document disagreement bStWeen Faderal and State RCT rllWllberS.

bH\gh, m~ium, or ICWV refers to desirability of leashuldevelotmem.

SOURCE: Bureau of Land Management, Green River-Hams Fork Final Environmental Impact Statemeflt: Coal, vol. 1, August 19S0.


interests are affected (e.g., the Forest Servicewhere federally owned coal underlies NationalForest Lands). Similarly, some groups have pro-posed that affected Indian Tribes be given votingmembership (especially the Navajo in the SanJuan region). Representation by other constitu-ent groups (e.g., industry, environmental orga-nizations, local landowners) also might be con-sidered. Such basic changes in the structure ofthe RCTs would be difficult to negotiate. More-over, it is possible that these interests could beaddressed adequately without voting member-ship if the role of the RCTs were broadened tocover the entire leasing process, and Task Groups(or similar approaches) involving all interests wereused more frequently.

A broadened membership that included repre-sentation from all interested parties would likelyresult in a group that resembles the Oil ShaleAdvisory Panel. While this panel has served asa useful forum for the discussion of the broadrange of issues involved in oil shale development,and such discussions have resulted in the focus-ing of governmental and industry efforts on keyissues, it does not have the directed mandate andstature accorded the RCTa.

Actions by RCTs

While the general mandate is the same for allRCTs, there is some flexibility provided so thatapproaches and decisions can be tailored to thespecific regions. For instance, with respect to theranking of tracts, the RCT can define the threemajor factors (coal economics, impacts on thenatural environment, and socioeconomic im-pacts) in terms appropriate to the region. Further,these rankings can be adjusted to reflect locallyimportant considerations such as socioeconomicimpacts.

There is some variation in how the RCTs arestructured. For instance, Colorado has includedrepresentatives from local communities as ex-officio members of the RCT. Local concerns withthe socioeconomic impacts of coal developmentas well as with other issues thus are presentedfirst hand. In contrast, Wyoming’s RCT memberconducts field investigations with all potentiallyaffected communities and then represents theirinterests as part of the State’s position.

On the Federal side, coordination with otherland management agencies requires flexibility.The Forest Service manages large areas of Iandoverlying Federal coal reserves in Utah, and thesynchronization of the two agencies’ (BLM andthe Forest Service) planning schedules might re-duce conflicts between surface uses and mining.

Broadening the scope of RCT activities to coverthe entire coal leasing program, especially anydecisions made during land use planning that .support leasing activities (e.g., application of theunsuitability criteria), could improve the qualityof those decisions due to greater involvement ofknowledgeable State personnel and reduce thepotential for conflict between the States and BLM.This could alleviate any controversy that mayarise when the land use planning decisions arepresented to the RCT at activity planning and laterstages. Involving the RCTs in land use planningalso would be consistent with BLM’s objectiveof substituting Resource Management Plans(RMPs) for updated or amended MFPs as the landuse plan. Since many of the State representativeson the RCTs are from agencies with broad natu-ral resources management responsibilities, broad-ening the scope of the RCTs should not requirechanges in State memberships.

However, expanding the role of RCTs wouldinvolve greater commitments of technical stafffrom BLM and State agencies. Providing addition-al funds to support greater State involvement inthe RCT process would improve its effectiveness(present Federal funding for State RCT activitiesis limited to members’ travel expenses for attend-ance at meetings). It is envisioned that most ofthis support would be for technical staff assistanceto the State representative for analyzing pertinentissues and preparing adequate documentation forinclusion in the various coal management pro-gram documents. Funding could be provided‘through direct grants to the States, as part of thecoal management program budget, or in partthrough existing grants for related activities, suchas the cooperative agreements for regulation ofcoal mining on Federal lands (30 U.S.C. 1295).

RCT Task Groups

Other approaches have included formally or-ganizing Task Forces to evaluate specific issues


and report on them to the RCT. The San Juan Re-gional Coal Team has established task forces onseveral issues including the valuation of PRLAsand BLM/BIA coordination of data collection andunsuitability determinations on Indian lands. Be-cause much of the coal land to be leased in NewMexico is within PRLAs, the economic and envi-ronmental consequences of processing the PRLAscould be dramatically different compared to hold-ing competitive lease sales. Although questionsand comments from the public are usually ac-cepted during the task force meetings, notice ofthose meetings may not be publicized as widelyas might be desirable for maximum public par-ticipation.

Task groups also can be specific to individualRCT members. For instance, the Utah MineralLease Task Force (MLTF) was created by the Gov-ernor of Utah and is composed of representativesfrom all the State agencies (and their constituents)whose programs are affected by or otherwise re-late to coal leasing and development. In addition,representatives from local communities affectedby coal development participate on an ex-officiobasis. Other interest groups that are involved inthe process include other affected Federal agen-cies, the industry, environmental groups, and ln-dian tribes. The MLTF reviews all issues involvedwith coal leasing and development from Utah’sperspective, and makes recommendations to theGovernor as to Utah’s position on issues beforethe RCT. A broad range of issues and interestsis considered by the MLTF including: evaluationof the coal resource, mining and reclamation po-tential, application of unsuitability criteria, andsocioeconomic impacts. The MLTF process alsohelps to assure coordination and consistency be-tween Federal lands actions and State and localland-use plans, a requirement under FLPMA.

The MLTF is the focal point within the State fordeveloping a consensus on the issues and prob-lems addressed and how the State’s perspectiveis to be maintained within the context of the RCTdeliberations. The MLTF activities have been ex-tended to cover the same types of considerationsinvolved in oil shale and tar sands developmentand leasing.

Role of BLM Within the RCT

The BLM State Director has some discretionwith respect to the number of activities assignedto the RCT for consideration and to the informa-tion provided to the RCT. BLM personnel serveas staff to the RCT, which ensures the RCT hasaccess to the same information available to theSecretary and provides more resources thanwould be possible if State agencies performedRCT staff functions. However, the concerns ofState RCT members may be different from thoseof Federal members, and concerns have beenraised about RCT/BLM staff not providing supportfor positions different from those held by FederalRCT members. Moreover, serving as RCT staffdoes not carry any career incentives, which maylead to work for the RCT being assigned a lowpriority compared to other duties that are con-sidered in merit evaluations.

The RCT as a Forum forPublic Participation

A wide range of approaches has been used toinvolve the public in the RCT process. At one endof the spectrum are the various task groups whichinclude a broad representation of interests. Ac-tual participation in task groups provides an op-portunity for substantive dialog among the par-ties and a potential to forge a consensus (if notan understanding) that will allow the leasing proc-ess to proceed without challenge. At the otherend of the spectrum are those instances whenpublic participation was limited to an opportunityto offer comments at the conclusion of a formalRCT meeting. Such limited participation generallyis not considered meaningful or substantive andis more likely to result in frustration with the leas-ing program.

The RCT process also could be strengthenedby providing greater visibility to the team’s rec-ommendations. This might be achieved by assur-ing that recommendations are written and in-clude supporting analysis and documentation aswell as the basis for support within the region andhow issues have been resolved; in short, the

114 ● Environmental Protection in the Federai Coal Leasing Program

consensus developed. These recommendations the public in the RCT processes and becomingshould be publicized widely in the affected coal the focus for building consensus on program deci-region and distributed to all individuals and sions would increase the visibility of the RCTgroups that are concerned with the program. Sim- recommendations.ilarly, more systematic procedures for involving

PUBLIC PARTICIPATIONPublic participation is an integral aspect of the

Federal coal leasing program, both in law andunder the present regulatory structure. In thebroadest sense, the term “public” is a collectiveone which essentially encompasses all parties thatare not specifically tasked by Federal or State lawwith responsibility for pre-lease planning. Thus,the term includes private surface owners, IndianTribes, local governments, coal companies, elec-tric utilities, academicians, environmental groups,archaeologists, paleontologists, farmers, ranchers,hunters, recreational participants, business own-ers, and virtually any other interested group orindividual.

The importance of effective public participa-tion is stressed in the laws–FLPMA and FCLAA–and regulations that govern the program, as wellas in more general statutory mandates such asNEPA. Yet a number of criticisms have beenraised about the number and scope of opportu-nities for the public to address coal leasing relatedconcerns, the timing of those opportunities, therelative ability of different segments of “the pub-lic” to address their concerns, the quality ofdocumentation by BLM to enable the public toevaluate pre-leasing decisionmaking, and the ex-tent to which public participation is consideredby BLM.

public review and comment occurs essentiallyin two discrete phases. First, the mandated in-teragency participation includes both Federal andState agencies for which the program providesdistinct opportunities for review and comment.This phase includes comment from agencies suchas the Forest Service and Fish and Wildlife Serv-ice, as well as other agencies which do not haveland management responsibilities related directlyto coal leasing. Regulations require that BLMcoordinate, during the development of land use

plans, with other Federal agencies (e.g., ForestService), State and local governments, and IndianTribes (43 C.F.R. 1601 .4). During the develop-ment of regional leasing levels or targets, the ad-vice of Governors of the affected States must beconsidered.

After tract selection and ranking, but beforeadoption of specific lease sale schedules, consul-tation with Governors and Indian tribes must takeplace again. Under the August 1983 revisions tothe regulations, Interior is required to seek rec-ommendations of the Governors of States af-fected by lands proposed for lease and to acceptthese recommendations if “they provide for a rea-sonable balance between the National interestand the State’s interest. ”

The second phase includes all groups and in-dividuals who provide comment and review toBLM as part of the series of public hearings whichare held specifically to solicit public input. Whilepublic participation and consultation with par-ties outside of the Federal Government are notstrictly environmental protection provisions,several Federal laws have included them, in part,in the belief that such activities are useful in de-vising environmentally sound coal managementpolicies. Several opportunities for public partici-pation are contained in land use planning regu-lations. They require the publication of a plan-ning schedule early in each fiscal year. When anew RMP or an amendment or revision to a landuse planning document is begun, Federal Regis-ter notice to the public is required, and BLM isrequired to maintain a list of individuals andgroups known to be interested in land use plan-ning and activities. Fifteen days notice is requiredfor public participation opportunities and a 90-day comment period is initiated upon publica-tion of draft EISs. The public is allowed to com-


ment on the identification of issues at the be-ginning of land use planning, and to reviewproposed planning criteria, RMPs, and significantchanges made to the plans as the result of aprotest.

The 1979 regulations allowed the public tocomment at two points in the development ofactivity planning and the setting of leasing levels,and required that RCT analyses of productiongoals be based, in part, on these comments. Anotice of intent to rank tracts was required in theFederal Register and public comments on pro-posed tract rankings had to be considered in re-gional EISs. Under the 1982 revisions to the reg-ulations, all of these public participation channelswere eliminated with the exception of the com-ment periods required under NEPA after publica-tion of draft EISs.

Public Understanding of theLeasing Process

A basic obstacle to effective public participa-tion is that the public generally does not fully un-derstand the entire Federal coal leasing program,including BLM’s pre-sale planning process. Ingeneral, the basic purposes and goals of thestaged environmental review process are ill-understood by those not actually participating init on a regular basis. The terms “land use plan-ning, ” “multiple-use tradeoffs,” “unsuitabilitycriteria,” “activity plan ning,” and others are con-fusing, and by their very nature intimidating topeople who are not already familiar with the gen-eral concepts. One major element of the coalmanagement program not understood by manypeople is that the leasing of a tract by BLM is notthe last opportunity to evaluate potential effectsthat may result from coal development. Many areunaware of surface mining permit applicationsand the level of detail with which mining andreclamation plans address environmentalimpacts.

The public’s desire to understand and partici-pate in the Federal leasing process is hinderedby the fact that many States, which address ma-jor issues, do not necessarily provide mechanismsfor the public to participate in all programs, suchas water rights. As a result, the interested public

tends to a certain extent to concentrate on theopportunities in the Federal programs that areavailable for them to address their concerns. Asa consequence, some of the information pro-vided by the public may not be directly relevantto BLM’s jurisdiction. In some instances this re-sults in the appearance that BLM has failed toconsider public comments in making leasing de-cisions; in others, public persistence has resultedin BLM’s “jurisdiction” being expanded (e.g., wa-ter rights issues in Uinta). This, too, is partiallyexplained by the public’s general lack of under-standing about the planning process. Workshopsat the outset of each of the planning stages couldprovide the public with a mechanism to be edu-cated about the leasing process. Brochures thatdescribe the basic steps, goals and products ofthe leasing process, and the means of public par-ticipation at each step also would improve publicunderstanding. Periodic newsletters to inform thepublic of upcoming activities and past decisionswould provide further explanation. All three ofthese mechanisms—informational brochures, anewsletter, and informational meetings—wereused in Fort Union Round I (3a).

Public input is more effective for all concernedwhen it occurs as early in the process as possi-ble. BLM sometimes receives insufficient publicinput early on, particularly for cases in which thepublic gets very involved in the later stages of thedecisionmaking process. In some instances, pub-lic hearings go virtually unattended. Again, thisis due in part to the poor understanding that thepublic has of the leasing process. The importanceof addressing concerns as early as possible isgenerally not widely appreciated among the pub-lic. However, even early effective participationcan be undermined by lack of continuity amongBLM personnel.

Others argue that the permitting stage has am-ple opportunity for public concerns to be ad-dressed in detail. In response, public interestgroups claim that when the land is already leased,it is much harder to have decisions altered. Inaddition, participation in the process at the mineplan review stage is felt to be more difficult thanin pre-leasing stages.

BLM’s documentation on some of its pro-cedures has been incomplete—another hindrance


to the public’s participation in the process. Unlessthe public can track specifically how a resourceuse decision was made or an unsuitability cri-terion applied, the ability to participate activelyin the process is diminished, and interested par-ties are unable to determine whether BLM hassatisfied legal and regulatory requirements. Revi-sions to the coal leasing program since 1982changed the requirements for written documen-tation of application of screens in land use (oractivity) planning. Without the more completedocumentation required by the earlier regula-tions, public involvement in, and understandingand evaluation of, BLM’s decision making proc-esses has been impeded.

Existing documentation also has been criticizedas being too technical in the way it treats someissues, yet, at the same time, being too generaland vague in not explaining the procedures thatwere followed. Compounding this is the unduelength of some documents. Inconsistencies alsoare a problem for outside reviewers. Even withinregions, the extent to which procedures are doc-umented varies, and information in one docu-ment may not be consistent with others.

The availability of planning and leasing docu-ments also presents problems. In some instances,documents such as MFPs are not published, orpublic copies are not always at easily accessiblelocations. Consequently, some interested partieshave been precluded from reviewing all of theavailable documentation relevant to the pre-leas-ing process. In other cases, the public must payto have documents copied, or file Freedom of in-formation requests in order to obtain copies.

Assessment of impacts is issue driven in thatunless potentially affected members of the publicare tenacious, even through the stages of devel-oping lease stipulations and other mitigationmeasures, there is virtually no way to assure thattheir concerns will be identified or addressed dur-ing pre-lease planning. For example, some con-tend that Unsuitability Criterion #l7 (municipalwatersheds) is only applied if potentially affectedmunicipalities raise concerns. Differences in tractrankings made in Uinta Round 1, as opposed toRound 11, concerning leasing in the watershed ofScofield Reservoir illustrate the effect that can re-

sult from the involvement of local governmententities. in this instance, tracts in close proxim-ity to a municipal reservoir were dropped fromthe preferred alternative in Round Il. However,this was only done after municipalities voicedconcerns when tracts in even closer proximity tothe reservoir were leased in Round I (10c).

The period available for public review of doc-uments on which opportunities for participationare afforded may be significantly shorter than the15-day notice period due to the time needed toobtain documents. As a result, the review periodis often perceived as being too brief, which makesit difficult for reviewers, who usually have othercommitments to their time, to provide comments.In some instances, residents of affected areas donot speak English. For example, in the San JuanRiver region, a significant number of the residentsspeak only Navajo. In that area, a Navajo-speak-ing BLM employee traveled to Chapter Housesto describe the leasing process to the residents,and all testimony at public hearings was trans-lated directly for Navajo attendees (6). Yet, even

for those who attend these meetings, cultural dif-ferences may inhibit understanding of the proc-ess and its effects on local residents. The qualityof public input suffers as a consequence of theseand other factors.

When given adequate opportunity, the publichas many times provided information to BLM thathas been useful to the planning process. Similarly,pressure from the public has led in some casesto BLM’s undertaking special studies on issues ofcritical concern to the public, including air qualityin the Fort Union region, hydrology in Green Riv-er-Hams Fork and Uinta-Southwestern Utah, andcultural resources in the San Juan region. Thesespecial studies generally have been acknowl-edged by BLM as improving the quality of infor-mation upon which environmental judgments aremade.

An example of the importance of public in-volvement in BLM’s baseline environmental datacollection occurred in the powder River region.A member of the public with the necessaryknowledge and expertise identified one of thetracts proposed for leasing in Round II as havingpresent within its boundaries a nesting area of


a species of high interest to the State (UnsuitabilityCriterion #1 5). Provision of this information toBLM resulted in the designation of an area un-suitable for mining around the nesting area.

Conversely, material provided by the public toBLM has sometimes been ignored during deci-sionmaking. For example, industry and State gov-ernments provided information indicating theproposed regional leasing levels were too highin San Juan, Fort Union, and Uinta-southwesternUtah. Only in San Juan, where the Regional CoalTeam concurred, were they adjusted downward.

One category of public involvement that is ina large sense a special case is the degree to whichpotential lessees participate in the collection andsharing of coal resource and baseline environ-mental inventory data, and obtaining surfaceowner consent to data collection/research as wellas mining. A decision by a particular coal com-pany not to share information with BLM makesit possible for that company to delay a tract’s be-ing offered for lease (see discussion of “Data andAnalysis”).

ENVIRONMENTAL ISSUES OF INDIAN TRIBESIn its efforts to involve a wide range of parties

in its study on the environmental compatibilityof the Federal leasing program, OTA included theissues and concerns of Indian tribes whose reser-vations are located near Federal coal tracts. Tribalenvironmental issues and concerns pertain bothto the programmatic aspects of the leasing pro-gram and to specific, substantive impacts thatwould likely result from actual development ofthe tracts. I those instances where tribal con-cerns are primarily socioeconomic, these arenoted.

To assist in understanding more fully the natureof tribal issues, this section first describes boththe geographical and administrative context ofthe tribes as they relate to Federal coal leasing,and then outlines both in a general and tribe-spe-cific manner the environmental issues and im-pacts that will or might be expected to result fromthe leasing program. The potentially affectedtribes are shown in figure 18.

In addition to geographic proximity to Federalcoal lease tracts, Indian tribes are included inboth the FCLAA and FLPMA regulations as gov-ernment entities that are to be consulted through-out the course of Federal planning for both over-all land use and particular activities (coal leasing).Specifically, these regulations require BLM toconsult with Indian tribal governments during thedevelopment of land use plans and, during theactivity planning stage, after tract selection andranking but before adoption of specific lease sale

schedules. Apart from these regulatory provi-sions, the Federal Government—and the Depart-ment of the Interior in particular-bears a generaltrust responsibility to Indian tribes.

In order to: 1) identify generic tribal environ-mental concerns with BLM’s administration of theFederal coal leasing program, and 2) present asaccurately as possible tribe-specific concernsabout environmental issues and/or impacts, eachof the potentially affected tribes was contactedthrough telephone interviews and/or personallyat a Council of Energy Resource Tribes (CERT)meeting in Denver, and the following questionswere posed:

●

●

●

If Federal coal lease tracts have been soldor proposed for sale near your reservation,was your tribe adequately consulted duringthe various stages of the leasing process,especially concerning the environmentalconsequences of the proposed lease devel-opment?If a Federal coal lease tract is developed (nowor in the future) near your reservation, whatwould you consider to be the principal envi-ronmental issues and/or impacts?As presently constituted, is the Federal coalleasing program adequate to ensure environ-mental protection for your tribe through thevarious stages of the leasing process? If not,what changes should be made and duringwhat stage, comprehensive land use plan-ning or activity planning?

3 4 - 7 5 6 0 - 9 - Q L3


Figure 18.—Sketch Map Showing Approximate Locations of Idian ReseverationsRelative to Coal Leasing Regions

hern UteI

C a r i l l a A p a c h e ~

The information in this section is drawn primar- concerning their responses to the first and thirdily from tribal responses to these questions. questions listed above. First, even though BLM

generally has consulted tribes during the leasing

General Environmental Issues process, almost all tribes feel that this consulta-

and Impacts tion has been inconsistent and inadequate dur-ing land use planning, and has tended more to-

Although Indian tribes vary greatly because of ward “notification” than “consultation” duringpolitical, cultural, and geographical differences, activity planning. Similarly, the tribes do not thinkcertain general conclusions still can be reached they have been provided with adequate informa-


tion to support effective participation in decisionsor recommendations on leasing levels or leasesales.

Another aspect of the consultation process isBLM’s coordination through and use of the Bu-reau of Indian Affairs (B IA, a sister agency of BLMwithin DOI) to interact with the tribes. Discus-sions with BIA officials at the Denver regional of-fice and at local agency offices, and the responsesfrom the Tribes, indicate that BLM probably hasnot taken full advantage of this interagency rela-tionship, either as a means of obtaining dataneeded to analyze potential impacts adequatelyor as a way to assist the tribes in evaluating coallease tract decisions.

Second, all respondents agreed with OTA’sfinding that the Federal coal leasing program, asexpressed in the legislation and general regulatoryframework, is adequate to ensure environmentalprotection, but that to be effective the programmust be implemented as originally intended. Toaccomplish this, Indian tribes—as other interestgroups–must be able to participate effectivelyat key decision points.

In this context, a related issue pertains to theRegional Coal Teams (RCTs) and the participatorylevel to date by Indian tribes. Some tribes, in-cluding the Navajo and Northern Cheyenne,have been ex officio members on their respec-tive RCTs, while others have had representationon a BLM District Advisory Council. The NavajoTribe recently was recommended by the Gover-nor of New Mexico to be a voting member of theSan Juan River RCT. A tribe’s involvement withthe Federal coal leasing program will and shouldvary greatly depending on proximity to potentiallease tracts and to subsequent impacts caused byexpected development. Accordingly, it may beuseful to distinguish a tribe’s role on the RCT bythe same basis—tract proximity to a reservationand magnitude of probable environmental andsocioeconomic impacts.

A final general concern of all tribes is the dis-parity between the tribes and State and off-reservation local governments in the availabilityof funds to mitigate the adverse impacts of coaldevelopment. Tribes generally do not receive ashare of Federal bonuses, rentals or royalties; can-

not collect severance, gross proceeds, or anyother taxes from mines not located on reserva-tion lands; and have virtually no independent taxbase of their own on which to draw.

Tribe-Specific EnvironmentalIssues/Impacts

The following summaries present the key con-cerns of potentially affected tribes as expressedto OTA; independent evaluation of these con-cerns was beyond the scope of this report. Theenvironmental and other impacts listed reflecteach tribe’s own priorities, unless otherwise in-dicated.

Fort Union Coal Region

THREE AFFILIATED TRIBES(FORT BERTHOLD RESERVATION)

Federal coal lease sales have been held recentlyin areas near Fort Berthold, the most recent be-ing the September 1983 Fort Union sale.

Consultation: The tribes were directly con-sulted by BLM concerning both the environmen-tal consequences of leasing and the subsequentlease development.

Environmental Issues/Impacts:

1. Air Quality. Concerns include increases inTSP, S02, NOx, and visibility reduction. An in-direct economic impact may result from the reser-vation’s location near Theodore Roosevelt Na-tional park, which has a Class I air qualitydesignation; as nearby Federal coal lease tractsare developed, air quality increments could beused up and the likelihood that tribal coal canbe developed in an environmentally compatiblemanner would be reduced.

2. Water Rights (water quantity or supply). Notonly is coal development often water intensive,but the State manages the water use permittingprocess.

FORT PECK ASSINIBOINE AND SIOUX TRIBES

Fort Peck Reservation is located approximately30 to 50 miles north of proposed Federal coallease tracts in the Montana portion of Fort Union.

Consultation: The tribes do not feel they wereconsulted adequately prior to the draft EIS; thedraft EIS in July 1982 was perceived by the Tribesas their first formal notification, and they wereconsulted again in March 1983 regarding the pro-posed leasing decisions on tracts to be offeredlater that summer. Most importantly, the tribescommented that not enough information wasprovided to allow them to estimate the environ-mental effects of the proposed leasing alterna-tives, and that which was disclosed warrantedonly minimal additional coal leasing.


1. Air Quality. Air pollution from lease devel-opment could degrade reservation air quality, insome instances exceeding the Class 1 increments(Fort peck Reservation has been designated aClass 1 air region under the Clean Air Act).

2. Wildlife. Migratory wildlife on the reserva-tion may suffer as a result of habitat degradationsouth of the reservation.

3. Socioeconomic. The large influx of workerswould strain available resources, at the expenseof tribal and other local residents.

Powder River Coal Region

NORTHERN CHEYENNE TRIBE

In the view of the tribe, location of the reser-vation in the virtual center of the Powder Rivercoal tracts, as well as the magnitude of surround-ing coal mines/conversion facilities (existing andproposed), has and will likely continue to createsignificant adverse environmental and socioeco-nomic impacts. This situation, and the specificfactors listed below, place the tribe in a nearlyunique situation vis-a-vis the Federal coal leas-ing

●

●

●

program.

major north-south and east-west highwaycorridors (for both commuter and servicetraffic to/from mining and conversion facili-ties) bisect the reservation;rail lines for coal transport are proposedalong Tongue River on eastern reservationboundary;reservation designated as Class 1 Air QualityRegion in 1975, prior to current Federal coalleasing program;

the tribe has its own significant coal re-sources, but has chosen to delay develop-ment because of lack of tribal control overdevelopment; andfinally, unlike some reservations, NorthernCheyenne’s is indeed “home” to its mem-bers (85 percent of on-reservation popula-tion is Northern Cheyenne, and 99 percentof surface used by tribal members).

Accordingly, the tribe contends that the im-pacts from the increased population associatedwith intensive coal development will continue toadd significant environmental and socioeconom-ic impacts on already stressed tribal public facil-ities, services, and environs. The Northern Chey-enne do not feel that, historically, they have hadan equal opportunity to participate in off-reserva-tion workforce and commercial ventures, nordoes the tribe share the substantial and other taxrevenues that will be available to State and localgovernments to mitigate impacts of coal devel-opment.

Consultation: The Northern Cheyennes are notcategorically opposed to Federal coal develop-ment surrounding their reservation. Rather, thetribe’s principal concern is that, as required bylaw, the development be undertaken with a sen-sitivity to the social, economic, and environ-mental impacts on all local communities, includ-ing the Northern Cheyenne. As presentlyformulated, Federal coal leasing portends uni-formly negative consequences for the NorthernCheyenne Tribe in their view. Further, the tribehas found BLM’s consultation effort, its analysisof impacts during activity planning, and its con-sideration of mitigation measures (e.g., leasestipulations) to be inadequate. A prime examplecited by the tribe is the EIS prepared for the 1982Powder River sale, which gave little or no rec-ognition to the combined environmental/socio-economic impacts noted in this section. WhenBLM refused to consider any modifications in the1982 sale, despite a substantial tribal effort todemonstrate the defects in its formulation, thetribe filed Northern Cheyenne v. Watt, which iscurrently pending (16).

Additionally, although an ex-officio member ofthe Powder River RCT, the tribe noted that it haslimited resources to participate meaningfully and


perform adequate analyses of lease sale propo-sals. For the Powder River Round 2 sale, the tribehas increased its own participation substantially,including the formulation of lease stipulations tomitigate adverse impacts and ensure that the tribebenefits from the positive effects of the surround-ing coal development. Finally, the tribe contendsthat BLM-BIA coordination has been largely a tok-en relationship, not taking full advantage of theBIA’s trust relationship with the tribe.

Environmental Issues/Impacts:*

1. Socioeconomic. Because of the tribe’s par-ticularly vulnerable economic situation and prox-imity of the reservation to the lease tracts, socio-economic impacts are the most serious concernof the tribe; public services/facilities most likelyto be heavily affected are roads, recreation facil-ities, traffic control, law and order, health care,and housing. At the same time, absent specialmeasures, the Northern Cheyennes will not sharein the substantial revenues available to off-reser-vation governments to mitigate adverse impacts(e.g., royalties, severance taxes), and may nothave an opportunity to participate in the econom-ic benefits of surrounding development. For ex-ample, absent a binding obligation to employNorthern Cheyennes (e.g., via lease stipulations),off-reservation coal operators have not made aspecial effort to do so. At Colstrip, 10 miles northof the reservation, Montana Power Co. ’s gener-ating plants are subject to a binding employmentpreference which has gained a significant num-ber of jobs for tribal members. But at the adja-cent Colstrip mine, where there is no such pref-erence, the Northern Cheyenne feel they havebeen given only minimal consideration in the fill-ing of over 500 jobs.

2. Air Quality. Given the reservation’s Class 1designation, the tribe is concerned with fugitivedust from mining activities and other impactsfrom conversion facilities; it also considers thecurrent BLM air quality analysis for the PowderRiver Round II sale to be inadequate, not ac-counting for cumulative air quality impacts in es-tablishing the EIS baseline. Finally, the tribe is

*Not prioritized by the tribe.

concerned that air quality increments in the re-gion are being usurped from the tribe’s own use.

3. Water Quality. Aquifer interception and con-tamination from mining activities could affecttribal water supply (largely wells). Surface waterpollution of the Tongue River is another concern.

4. Wildlife. Migration routes of wildlife mov-ing onto reservation are being disrupted, affect-ing tribal residents’ food supply (60 percent ofthe tribe supplements their food from this source).

5. Historic and Burial Sites. Many are locatedoff-reservation, and could be disrupted or de-stroyed.

CROW TRIBE

Both the northeastern and southeastern bound-aries of the Crow Reservation are located nearFederal coal lease tracts (Colstrip, Spring Creek,and North/West Decker) and existing coal minesand conversion facilities. In addition, an activecoal mine is located in a ceded area at the north-eastern border of the Reservation, and anothermine in the southeastern portion of the Reserva-tion, Youngs Creek, is slated to begin operationin 1986.

Consultation: The tribe has expressed con-cerns on two counts with respect to BLM con-sultation: 1 ) lack of tribal involvement in the de-velopment of the land use plans and specific leasesale schedules, and 2) failure to factor the tribe’scoal reserves into the regional baseline andfollow-on analyses for both environmental andsocioeconomic impacts on the tribe. Also, thetribe noted a virtual lack of any mention and/oranalysis of environmental impacts on the CrowReservation in the powder River Round I leasesale EIS.


1. Air Quality. Pollution could be significant,especially if second- and third-level mining de-velopment scenarios (large-scale strip mining ofcoal and related conversion facilities—power-plants and synthetic fuels) occur in the region.

2. Water Quality/Quantity. The major concernis pollution of tributary streams on or adjacentto the reservation.

—.—


3. Socioeconomic. A mass influx of workers/families from intensive regional coal developmentwould result in an overall degradation of qualityof life and place additional stress on alreadystrained public facilities/services and infra-structure.

Green River-Hams Fork RegionTHE WIND RIVER TRIBES

(SHOSHONE AND ARAPAHOE)

Currently not involved and/or near any Feder-al coal lease tracts; they may also more properlybe placed in Powder River Region, but their statusor level of involvement would not change.

Uinta-Southwestern Utah Coal Region

UTE INDIAN TRIBE(UINTAH AND OURAY RESERVATION)

The southern boundary of the Uintah andOuray Reservation is approximately 25 milesnorth of the northernmost Federal coal leasetracts in this region. These are underground minetracts with limited development, and are sepa-rated from the reservation by a major canyon.Although it is not clear that the tribe would sus-tain any serious environmental impacts from de-velopment of these tracts (because of the topo-graphic and other physiographic characteristics),the tribe nonetheless felt it should have been con-sulted.

Consultation: The tribe was never contactedduring the leasing process. According to BLM, thiswas because the nearest tracts are limited devel-opment, and because wildlife mitigation routes,hydrologic drainage, job availability, etc.,historically have not crossed the canyon inbetween.

Environmental Issues/Impacts: Air quality, wa-ter quality/quantity, wildlife, and socioeconomicimpacts were listed as the tribe’s priorities.

San Juan River Coal Region*

As noted elsewhere in this report, a myriad ofcircumstances and Federal Iand management de-cisions have affected the environmental compat-

*Note: In the San Juan region, only the Navajo Tribe and thePueblos of Laguna and Acoma responded to OTA’s questionnaire.

ibility of coal leasing in the San Juan region, notthe least of which concern Indian tribes. For ex-ample, the Navajo-Hopi relocation effort, the lit-igation by Navajo allottees regarding surface own-er consent and coal ownership, tribal culturalconcerns, and PRLA disposition have had a di-rect bearing on the current status of the San Juanleasing program and corresponding environmen-tal impact assessments.

Moreover, as with tribes elsewhere, environ-mental impacts and socioeconomic disruptionwill heavily affect the San Juan Region tribes ifthe leasing program is not more sensitive to tribalconcerns. Even though economic considerationsof coal leasing and development are a mixedblessing: some tribal members will feel new jobsare a benefit; others will feel that the costs ofrelocation, destruction of sacred sites, loss of graz-ing lands, adverse air and water quality impacts,and loss of ambience (solitude, intrusion by out-siders, etc. ) will outweigh any economic return.These and other particular environmental con-cerns of individual tribes in the San Juan Basinare presented below.

PUEBLO OF LACUNA

Competitive Federal coal lease tracts (ChicoWash South, Lee Ranch East-Middle-West) arelocated approximately 25 to 30 miles northwestof the Reservation.

Consultation: The Pueblo does not feel it wasconsulted adequately in the initial phases. ThePueblo noted another concern–that they be keptinformed of any agreements related to Federalcoal leasing that are executed among the variousFederal agencies— BLM, BIA, BOM, et al.


1. Archaeological sites, e.g., Chacoan Outliers.2. Groundwater–aquifer interception and

groundwater recovery.3. Air Quality.

THE NAVAJO TRIBE

The tribe is heavily involved in the San Juancoal leasing program in a number of ways:

● proximity to several competitive coal leasetracts;


● the large quantities of coal underlying triballands;

● the Navajo-Hopi relocation effort, which alsoencompasses the Paragon Ranch issue;

● the disposition and legal validity of PRLAs;● water rights and appropriation levels for the

basin; and● surface ownership by Navajo Tribal mem-

bers where some of the leasing activities willoccur.

These and other issues point up the integral rolethat the Navajo Tribe should play in the imple-mentation of the Federal coal leasing program inthe San Juan Basin. Many of the areas to be leasedare occupied and used by tribal members, andthey have several legal claims pending to muchof the coal and surface involved.

Consultation: Tribal concerns here centeraround: 1) inadequate consultation during landuse planning, and more importantly, 2) the lackof time and relevant information during activityplanning to participate effectively on issues con-fronting the tribe. Regarding the latter, the mostrecent example pertains to the perceived inade-quacy of the public hearing process–timing andIocation(s)–for the second San Juan draft EIS(BLM held the hearing in Farmington, N. Mex.,the closest town to the Navajo residents thatwould be affected most by leasing). The tribe toldBLM that the proposed hearing process wouldmost certainly preclude Navajo concerns frombeing heard and addressed. Finally, regardingparticipation in the San Juan RCT, the NavajoTribe currently is an ex officio member, andrecently was recommended by the Governor ofNew Mexico to be a full, voting member in rec-ognition of the tribe’s unique role and situationin the Basin. However, the Director of the BLMhas rejected this recommendation.

Environmental Issues/Impacts*:

1. Socioeconomic. These impacts are of utmostconcern to the tribe: the relocation plan for Nav-ajo families affected by PRLAs is inadequateand/or unacceptable in terms of compensation,cultural implications, replacement of grazing

*Not prioritized by the tribe.

lands, destruction of sacred sites, overall ambi-ence, and relocation of graves; the economicbenefits of added coal development probably willnot accrue to the Navajo people; and the impactsfrom an influx of people will result in housingshortages, increases in crime and alcoholism, anda deterioration in law and order. All of these inturn will adversely affect the Navajo lifestyle.

2. Reclamation and Revegetation. The tribefinds the second draft EIS still inadequate on thisissue; loss of grazing land from proposed min-ing activities is not estimated, nor do they feelthe issues surrounding reclaimability were ad-dressed adequately, such as a specific, compre-hensive reclamation plan, treatment of toxic ma-terial, top soil preservation, and irrigation needs.

3. Water Quality and Quantity. Tribal concernscenter around the availability of the estimated52,000 acre-feet annual water requirement for theproposed mining and related conversion facili-ties on lease tracts (notwithstanding the currentscarcity for existing domestic, irrigation, and live-stock demands), and the possibility of a new townin the region. Other water quality impacts includegroundwater interception and/or the rechargelevels of aquifers currently supplying water tomany tribal lands. Finally, the tribe is concernedthat water quality may be impaired because ofthe increased coal development activities nearby.

4. Cultural, Archaeological, and Paleontologi-ca/ Resources. The Navajo Nation strongly be-lieves that comprehensive inventories of these re-sources must be undertaken before decisions aremade to implement the leasing plan. Otherwise,Navajo graves and sacred sites, and the rich di-versity of significant archaeological and paleon-tological resources in the region will be irretriev-ably lost, not only to the tribe but also to societyin general. The tribe points out further that thesecond draft EIS does not address relocation/res-toration of sacred areas and gravesites, and con-tends that it does not include adequate salvage,recovery, and preservation plans for the ar-chaeological and paleontological resources.

5. Air Quality. The tribe feels that several as-pects of adverse impacts on regional air quali-ty—fugitive dust, smog, sulphur dioxide, nitrogenoxides, etc.— have not been adequately analyzed


in the leasing process. Moreover, in the seconddraft EIS, cumulative air quality impacts have notbeen properly considered, whether from existingmining activities, existing and proposed railroads,oil and gas fields, or other powerplants/projectsin the basin. Finally, specific mitigation measuresfor air pollution are not fully addressed in the draftEIS or other leasing documents, according to theNavajos.

6. Noise and Vibration. The tribe does not thinkthat adverse impacts on people, livestock, andwildlife from both noise and vibration, as well asdamage to fragile archaeological/paleontologicalresources from blasting, have been quantified

adequately. Furthermore, in their view, mitigationmeasures, such as lease stipulations, have notbeen developed satisfactorily to either eliminateor minimize these problems.

7. Fish and Wildlife. According to the tribe, theinformation provided to date in draft EISs andother BLM documents does not adequately de-scribe the baseline, especially threatened and/orendangered species that could be affected by the

8. Visual. The visual quality of the region couldbe degraded by increased urbanization in existingcommunities, mining operations and surface con-version facilities, improved or extended accessroads, and various rights-of-way. The tribe’s keyconcerns include the scenic quality of the land-scape and possible destruction of some uniquegeological formations and wilderness areas.

PUEBLO OF ACOMA

Several competitive Federal coal Iease tracts—including Lee Ranch East, Middle, West andDivide–are located approximately 30 to 50 milesnorth of the Acoma Pueblo.

Consultation: The Pueblo has indicated thatthey were not consulted about the leasing proc-ess. (According to BLM, this is due to the Pueblo’sdistance from potential lease areas and interven-ing topographic features.)

Environmental Issues/Impacts: Water avail-ability is the chief concern of the Pueblo; anotheris the need for an adequate reclamation program.

proposed leasing actions.mitigation measures also

The tribe suggests- thatshould be included.

LEASING ON SPLIT ESTATE AND CHECKERBOARD LANDSUnder the original homestead laws, ranchers

and farmers were granted both the surface andmineral rights to their lands. After significanthomesteading had occurred in North Dakota andMontana, laws were changed around the turn ofthe century to allow the Federal Government toretain the mineral estate, and subsequent home-steaders only acquired the surface estate, whichresulted in what is known as “split estate” owner-ship (see fig. 19).

situations. Checkerboard ownership is most prev-alent in the Fort Union Coal Region, the north-ern portion of the Powder River region, and theWyoming portion of Green River-Hams Fork.Split estate lands also exist in the San Juan Riverregion, in which a significant fraction of the Fed-eral coal underlies Indian surface. Surface ownersinclude individual tribal members, BIA, or theNavajo Nation. Finally, as noted earlier in thischapter, conflicts over land use planning, impact

Similarly, the original railroad land grants insignificance, and leasing decisions have arisen

these areas led to a “checkerboard” pattern ofwhere Federal coal underlies lands managed bythe Forest Service (and other Federal surface

ownership, with alternate sections of land (640 management agencies), although this is not le-acres) owned by the Federal government and rail-road companies respectively (see fig. 20). In some

gaily a split estate situation.

cases (primarily Fort Union) the checkerboard The extent of split estate lands in Western coalownership pattern only exists subsurface, and that regions is illustrated by the fact that there are 9.7pattern and split estates may both affect leasing million acres of recoverable Federal coal reserves


Figure 19.—Example of Split Estate with Predominantly Private Surface and Federal Coal(Ash Creek tract, Western Powder River area)

Private

I

.

H H 1 I0 1 2 3 4 S M I L E S

SOURCE: Bureau of Land Management, Powder River coal tract summaries (April 1983).

34-756 0 - 10 - QL3


Figure 20.-Example of Checkerboard Ownership Pattern of CoalResources(Meridian tract, Fort Union region)

SUBSURFACE

R45E R46E “Ownership

■ Meridian

■ Federal

❑ State

❑ Private

— Proposed exchange

--- Federal tract

R44E

T20N

T19N

.

1 1

,

T18N

SOURCE: Bureau of Land Management, Fort Union Coal Region Draft Environmental Impact Statement (July 1982


in the six principal Western coal States, of which6 million acres underlie private surface. However,the geographic distribution of split estates varieswidely. At one end of the spectrum, in the NorthDakota portion of the Fort Union Coal Region,virtually all (99.5 percent) of the federally ownedcoal is overlain by non-Federal surface, while inthe Montana portion, over 90 percent of the Fed-eral coal is beneath non-Federal surface (8 b). Atthe other end of the spectrum, the Uinta-South-western Utah, much less (20 percent) of the fed-erally owned coal underlies non-Federal surface(see table 15).

These ownership patterns can affect the devel-opment potential of both Federal and non-Fed-eral coal resources. For example, due to the needto form logical mining units and avoid bypasssituations, BLM estimates that 42 percent of thetotal coal reserves in Fort Union could not be de-veloped without the leasing of Federal coal be-cause of the combination of checkerboard own-ership and split estate (8 b). The proportion of totalresources dependent on the leasing of Federalcoal in Powder River and Green River-Hams Forkis 16 and 27 percent respectively (2; 4a; 4b).

A major concern with planning and environ-mental assessment in the coal leasing programis the difficulty in implementing the program inareas of predominant split estate and/or checker-board ownership, compared to those areas withsignificant Federal surface ownership. The stat-utes and regulations defining the program pro-vide limited guidance for implementation in geo-graphic areas sensitive to the type and extent ofFederal ownership. An abbreviated planningprocess, called the land use analysis, is suggestedfor split estate leasing, but in practice land useanalyses are indistinguishable from updated oramended MFPs. These and other uncertaintiesabout how to implement the program on split es-tate lands results in a lack of definition as to theauthority carried by land use plans, lease stipula-tions and other mitigation requirements, and en-forcement of the mining and reclamation plan onthose lands.

Split estate lands pose substantial land manage-ment problems for BLM, yet resolving these prob-lems ranks low in the competition for agency

funds and manpower compared to surface own-ership management responsibilities. Data collec-tion on private surface typically is not pursuedaggressively by BLM. In some instances, datahave been withheld by surface owners (or BLMhas been denied access to the surface to collectdata), either to facilitate leasing by avoiding thediscovery of problems, or to force a tract to bedropped from the lease process due to lack ofdata. In other cases, leasing on split estate landshas been foreclosed because insufficient time wasavailable during pre-lease planning to obtain thenumerous surface owner consents needed inthese areas.

On the other hand, data collection and analy-sis have been more extensive where the Secretaryhas a continuing responsibility with respect to theprivate surface estate. This is the case with Indianlands (lands held in trust) outside the boundariesof the reservations (e.g., the BLM/BIA interagencyagreement concerning lands in the San Juanregion).

Data collection actually can be facilitated oncheckerboard lands. If the railroad company hasundertaken inventories on its land, those data willhelp BLM narrow the issues and focus their landuse planning. However, if the company data arenot shared with BLM, the same planning prob-lems can arise with checkerboard lands as withsplit estate (see discussion of Burns Creek tractin section on “Data and Analysis”).

There is substantial concern within BLM regard-ing land use planning on private surface whenthe only Federal interest is the mineral estate, orwhen the Federal surface is intermingled with pri-vate surface. The concern focuses in part onwhether or not the authority exists for BLM to en-force mitigation measures on private surfacelands, not only during mining and reclamation,but also after reclamation in terms of beingassured that the approved post-mining land usewill be maintained following release of the rec-lamation bond. if it is found that such authoritydoes not exist, the flexibility to choose betweenmitigating impacts versus declaring areas unsuit-able for mining is constrained substantially.

Post-mining land uses on split estate lands areof particuIar concern where those lands remain

Table 15.—Ownership of Surface and Coal Resources in Five Western Coal Management Regions~ (in acres

Federal surface/ Percent Federal surface/ Percent USFS surface/ Percent USFS surface/ Percent State surface/ PercentRegion Federal coalb of total non-Federal coalb of total Federal coal of total non-Federal coal of total Federal coal of totalFort Union: 31,680 1.0% 2,260 — 2,890 0 14,320

North Dakota . . . . . . . . . . . . . . . . .—

800 –d— —

o — 2,890 0 3,640Montana . . . . . . . . . . . . . . . . . . . . .

—30,880

—2.5%

—2,260 — o — o — 10,680 1 .0%

Power River: 584,331 9.5% 1,891 — 490,501 7.9% 8,160 45,608 1 .0%Montana . . . . . . . . . . . . . . . . . . . . .

—193,430 10.3% 60 — 434,515 23.1 % 3,120 21,190 1 .1%

Wyoming. . . . . . . . . . . . . . . . . . . . . 390,901—

9.8% 1,831 — 55,986 1 .4% 5,040 — 24,418 1 .0%

GreenRiver-Hams Fork: 1,179,740 43.9% 4,840 — 2,220 640 6,012Wyoming ..................,. 1,124,370

— —51 .8%

—960 — 160 0 2,732

Colorado . . . . . . . . . . . . . . . . . . . . .—

55,370—

10.8% 3,880—

1 .0% 2,060 — 640 — 3,280 1 .0%Uinta-Southwestern Utah: 765,630 45.5% 6,640 — 384,270 22.9% 1,040 4,680

Colorado . . . . . . . . . . . . . . . . . . . . .—

230,730 40.8% 2,680—

— 94,980 16.8% o 0Utah . . . . . . . . . . . . . . . . . . . . . . . . 534,900

—47.9% 3,960

—— 289,290 25.9% 1,040 — 4,680 —

San Juan River: 1,219,770 48.4% 27,040 1 .1% 62,650 2.5% 3,140 27,190 1.1%Colorado . . . . . . . . . . . . . . . . . . . . . 34,470

—12.6% 120 — 55,620 20.3% 3,140 2,910 1.1%

New Mexico . . . . . . . . . . . . . . . . . . 1,185,300—

52.8% 26,920 1.2% 7,040 — o — 24,280 1.1%

Table 15.–Ownership of Surface and Coal Resources in Five Western Coal Management Regionsa(in acres)(continued)

State surface/ Percent Private surface/ Percent Private surface/ Percent Other surface/ Percent Other surface/c Percent Total coalRegion non-Federal coal of total Federal coal of total non-Federal coal of total Federal coalc of total non-Federal coal of total resourceFort Union:

North Dakota . . . . . . . .Montana . . . . . . . . . . . .

Powder River:Montana . . . . . . . . . . . .Wyoming. . . . . . . . . . . .

Green River-Hams Fork:Wyoming. . . . . . . . . . . .Colorado . . . . . . . . . . . .

Uinta-Southwestern Utah:Colorado . . . . . . . . . . . .Utah . . . . . . . . . . . . . . .

San Juan River:Colorado . . . . . . . . . . . .New Mexico . . . . . . . . .

111,08044,60066,480

473,099107,980365,119

102,76457,13445,630

74,5908,190

66,400

3.0%1.8%5.4%

1,205,740711,160494,580

32.2%28.3%40.0%

2,263,4701,643,250

620,220720,166443,560276,606

60.4%65.4%50.1 %11 .6%23.6%6.9%

38.3%42.0%22.7%

91,58079,86011,720

70,8372,470

68,36729,64817,88311,765

2.4%3.2%1 .0%

1 .2%

27,45026,170

1,280

32,2032,960

29,243160

40120

4000

400

1.0%1 .0%

—

3,750,4702,512,3701,238,100

7.7%5.8%9.2%

3.8%2.6%8.9%4.4%1 .5%6.0%

6.4%8.1%6.2%

3,814,7221,046,8952,767,827

61 .7%55.8%69.5%

6,185,5321,877,6513,985,338

———

—1 .7%

1 .1%1 .0%2.3%

1 .0%1 .0%1 .0%

330,57556,235

274,340285,410180,070105,340273,57068,950

12.3%2.6%

53.3%

1,029,655912,860116,795

2,686,2542,172,374

513,880

———

I17.0%31 .9%9.4%

10.9YO25.2%

143,29044,36098,930

8.5%7.9%8.9%

15,3204,160

11,160

1,681,270565,170

1,116,100

2,520,780274.060

———

160,62022,220138,400

183,22084.840

7.3%31.0%

430,080680

17.1%—

133,5001,120

5.3%—.

204,620 9.1% 98,380 -4.4% 429,400 19.1% 132.380 5.9% 2,246,720almiutis Known FlmOwrable Cml Resource Areas (KRCRAs) defined as of March 1978.blnclu~sBLM.administer~ andotherpubticd~in lands, excluding National Forest Iands.clnclu~s &flkh@-JOmSacqUired lands, Federal withdrawn Iands (e.g., military reservations), and Indian lands.d,,–” indi~teslesst~nl PW2ent.

SOURCE: Bureau ofLand Management, Fiha/Envlnmnranta/S tatanrent Fadera/ Coa/Managanrent Progranr, 1979.


undeveloped. For example, in North Dakota, ahigh proportion of the split estates contain wood-land (woody draws) and wetland habitats essen-tial to wildlife (including native prairie lands).These areas generally were the last homesteadeddue to their low agricultural potential. Wildlifebiologists have expressed concern that mining onsuch lands will relieve the pressure, after bondrelease, to maintain the lands in their natural stateor, alternatively, that they will be more suitablefor agricultural development after mining (9). Thepotential for changes in post-mining land use ishigh enough that it has led coal companies toquestion the rationale for rigid reclamation stand-ards on split estate lands. In addition, Federalagency personnel and environmental groups thatfought for high reclamation standards also haveexpressed concern over the possibility that min-ing these lands could speed up the process ofwildlife habitat destruction unless there is someguarantee that they will be returned to pre-miningland uses.

Furthermore, the current practice in areaswhere split estate ownership predominates (e.g.,North Dakota) is for the coal company to pur-chase all of the surface that will be affected bymining, and then sell it in one block after bondrelease. As a result, leasing in split estate andcheckerboard areas is more likely to be noncom-petitive. Moreover, this lack of continuity in sur-face ownership adds to the potential for changesin post-mining land use. It also means that thecompany involved is more likely to be concernedabout the leasing of that area than about regionalleasing levels in generaI.

BLM’s concerns are compounded by the basiclack of understanding about split estate leasingby the public and interest groups, who expectthe Federal land management process to be im-plemented in a uniform manner for all Federalcoal. In many split estate situations, however,land use, unsuitability, and mitigation decisionstypically are deferred to the State permittingauthority. While such deferrals may be necessaryto obtain data of “mine plan detail” to make afinal decision, or to reflect the role of States andlocal governments in land use decisions, they

tend to exacerbate the uncertainty concerningthe eventual effectiveness or adequacy of the coalleasing program on split estate and checkerboardlands.

An additional problem arises because the Fed-eral coal management program does not providefor surface landowners to be represented in theprocess once they have given consent to mining,unless their contracts with the lessee so specify.This lack of representation may extend throughthe activity planning process into mining andreclamation, and contributes to the uncertaintyabout reclamation standards for post-mining landuses on split estate and checkerboard lands.

The split estate situation also lends itself moreto the application of multiple-use tradeoffs to re-solve environmental problems rather than the un-suitability criteria. For instance, for criterion #17(watersheds) to apply, Federal lands must becommitted by the surface management agencyto use as municipal watersheds. Where the Fed-eral Government does not own the surface, thiscriterion cannot be used to protect watersheds.However, BLM has discretionary authority to ex-clude watersheds from leasing or impose mitiga-tion measures under the multiple-use screen. Wa-tersheds for community water supplies in bothUtah and North Dakota were protected throughthe multiple-use screen rather than through un-suitability criterion #l7 due to split estate owner-ship (10c; 8b). While this provides flexibility forBLM in dealing with such situations, it also tendsto create uncertainty about BLM’s ability to pro-tect watersheds and other resource values on splitestate lands.

Options for resolving the uncertainties aboutplanning and environmental assessment in sup-port of coal leasing on split estate and checker-board lands include redefinition and the estab-lishment of procedures for land use analyses, andthe preparation of joint Federal-State ResourceManagement Plans (RMPs) in order to better as-sure full evaluation of resource tradeoffs on non-Federal lands. These options are discussed inchapter 2.

—


COAL EXCHANGESThe Department of the Interior’s coal manage-

ment regulations allow the Secretary to pursuecoal lease exchanges when “coal exploration, de-velopment and mining operations would not bein the public interest on an existing lease orpreference right lease application or portionthereof” (43 C.F.R. 3435.1). The purpose of theseregulations is “to shift the impact of mineral oper-ations from leased lands or portions of leasedlands to currently unleased lands to preserve pub-lic resource or social values” (43 C.F.R. 3435.0-1 ).

In addition to resolving environmental prob-lems on leases and PRLAs, coal exchanges mightbe pursued when the economic value of un-leased Federal coal can be used to acquire andprotect other resources on privately owned lands(e.g., to add them to National Parks or wildernessareas), or to improve management of Federallands.

Three aspects of exchanges are especially im-portant. First, the regulations authorize exchangesbut do not obligate the Secretary to enter intoan exchange; a decision to pursue an exchangeis discretionary. Second, the regulations do notpermit a direct exchange of one coal lease foranother; such exchanges currently require con-gressional authorization on a case-by-case basis.Third, all exchanges must be for equal value. Al-though determination of value is a key aspect ofcoal exchanges, the regulations do not clearlydefine the procedures for the value determi-nation.

Most of the Federal coal leases and PRLAs cur-rently being considered for exchange were ac-quired by companies in what maybe considereda different era. When the basic rights weregranted, neither BLM nor the companies wererequired to address environmental issues in ascomprehensive a manner as they are today. Pub-lic involvement in leasing was low, and the ma-jor concern was to locate minable coal deposits.In the transition to the current regulatory climate,companies which had showed economic fore-sight in acquiring Western coal. reserves suddenlyfound that some of those reserves had becometoo expensive to develop, or even unminable,

due to the environmental protection laws andregulations enacted in the last 15 years.

Exchanges that give a company a minable tractequivalent in value to the original lease wouldrecognize these changes in environmental lawsand regulations, and relieve the company of theeconomic responsibility for not foreseeing thecurrent environmental risks. Alternatively, envi-ronmental problems that prevent mining couldbe treated as a normal business risk, and ex-changes not allowed unless required to compen-sate for a “taking” under the Constitution. As athird alternative, environmental problems thatprevent mining could be examined systematicallyto decide how to distribute the risks equitably be-tween the public, which owns the coal resources,and the company holding the right to attempt de-velopment of that coal.

While exchanges can promote environmentalcompatibility, they also have economic costs.placing lands off limits to mining deprives Stateand Federal Governments of potential economicbenefits including jobs, severance taxes, androyalties. These benefits could be viewed as be-ing shifted to other lands, or even postponed tothe future if mining and reclamation technologyadvances or energy needs change and miningproceeds on previously protected lands. How-ever, exchanges that allow companies “liberal”economic terms today may create pressure forthe availability of exchanges to be expanded. Thiscould have important implications economicallyand environmentally, and any such expansionshould be undertaken cautiously and with full op-portunities for effective public participation.

Exchanges also can have significant economiceffects on the participants. A decision by the Fed-eral Government to seek an exchange instead offinding land to be unsuitable for mining or im-posing strict mitigation requirements could savethe lessee or coal owner millions of dollars andincrease coal management revenues to the Fed-eral Government, but, as noted below, could de-crease revenues to the States. Whether BLM con-tinues to use the normal leasing process toforeclose mining on environmentally sensitive


lands, or develops and implements an exchangeprogram authorized by Congress, the approachchosen should be applied in a consistent and pre-dictable manner.

Exchanges of coal lands are a relatively newissue. In spite of their newness, the total num-ber of exchange opportunities could be quitelarge, and the complex environmental and eco-nomic issues they pose, and the time needed forcareful evaluation of the case-by-case tradeoffsthey present, could require a significant amountof BLM’s resources.

Types of Exchanges

Three major types of exchanges might be con-sidered for environmental protection of Federallands: special statutory lease exchanges, fee ex-changes, and alluvial valley floor exchanges (seetable 16).

The Congress has, in several instances, author-ized lease exchanges through legislation specificto a particular lease or group of leases. The Con-gress has approved lease-for-lease exchanges toprotect a segment of an interstate highway under-lain by Federal coal; to remove PRLAs from theKaiparowits Plateau; to protect archaeological,paleontological and scenic values in the BistiWilderness Study Area in New Mexico; and toacquire non-Federal interests within the bound-aries of the Rattlesnake National Recreation Areaby purchase or a gift including the issuance ofcoal bidding rights.

Interior generally has chosen to carry out suchspecial statutory lease exchanges using the sameprocedures as for regulatory exchanges (43 C.F.R.Subpart 3435). This includes requirements forpublic participation, land use planning, applica-tion of the unsuitability criteria, and consultationwith the Regional Coal Team and with the Gover-nor of the State in which the lands are located.Consummating a proposed exchange frequentlyis incorporated into the alternatives analyzed inthe EIS.

Section 206 of FLPMA allows fee exchanges, *in which the Secretary of the Interior may dis-

*A “fee” interest in land or other resources is equivalent tooutright ownership.

pose of a “tract of public land or interest therein”by exchange when doing so would be in the pub-lic interest. DOI holds that section 206 does notallow exchanges of coal leases but does allow in-terior to swap federally owned coal for other in-terests in land.

In a gesture singular to the holders of coal un-derlying alluvial valley floors, SMCRA establisheda special exchange program for these lands. Thelaw authorizes exchange of existing Federal coalleases for new Federal leases, as well as ex-changes of fee coal (owned rather than leased)underlying AVFs for unleased Federal coal, toqualifying companies. While interior’s regulationsgenerally assume that AVF exchanges with quali-fying leaseholders would be in the public interest,all potential AVF exchanges are evaluated on acase-by-case basis.

Major Issues

Exchanges involve a new approach to resourcemanagement and many issues surrounding theirability to resolve environmental conflicts still needto be resolved. Major uncertainties include theneed for more detailed guidelines and proceduresfor effecting exchanges, including environmentalanalyses, the use of bidding rights in an exchange,the entities eligible to participate in exchanges,valuation procedures, and the time and resourcesneeded to complete an exchange.

Exchange opportunities may go unrecognizedbecause there are few regulatory guidelines forwhen an exchange is appropriate. Equally impor-tant, this could mean that exchanges that are onlymarginally in the public interest could be under-taken. All coal development raises some environ-mental issues. In the current coal market, someleaseholders might find themselves holding rightsthat are not marketable for economic reasons(e.g., mining costs, access to markets, coalquality). BLM lacks adequate procedures for dis-tinguishing exchanges that are economically mo-tivated, but clothed in environmental concerns.

Moreover, DOI currently has no authority torequire a lessee or fee coal holder to enter intoan exchange. Given the difficulties inherent inthe exchange process, this lack of authority couldbe a hindrance to carrying out environmental

Table 16.—Summary of Recent Exchange Proposals

Authorization andexchange Description Current status Comments

1.

2.

Public Law 95-554:(Oct. 30, 1978)a)

b)

I-90 Lease-for-lease exchange;nine leases under 1-90 andState highways innorthwestern Wyoming

Utah P&L Exchange of eight PRLAsowned by Utah P&L on theKaiparowits Plateau forleases elsewhere in Utah

c) Lake Desmet Mandated study of possibilityof exchanging private landsnear Lake Desmet Reservoirin Johnson County, Wyo.,for Federal coal lands

Public Law 96-475(Oct. 19, 1980a) Bisti WSA Directs DOI to issue new coal

3. Public Law 96-401(Oct. 9, 1980)

leases to the holder of twoNew Mexico leasesaffecting the BistiWilderness Study Area

Authorized DOI to negotiatefor cancellation of 7 leasesand 11 prospecting permitson Northern CheyenneReservation, and substituteFederal coal leases orbidding rights off-reservation

Completed two exchanges (one withWyodak Coal Co., one with EXXON);proceeding with exchanges for Kerr-McGee, Belco, Gulf and Big Horn Co.

Dropped from further consideration in1981 based on DOI determination thatthe value of the coal in the PLRAs wasless than the value of the coal soughton the exchange tracts

DOI recommended against the LakeDesmet exchange in September 1979

Draft EIS issued Dec. 31, 1981; miningplan being prepared which will allow adirect comparison of values on thelands to be relinquished with theselected lands; BLM schedule showsnew leases to be issued July 17, 1984

Cancellation agreement signed withPeabody Coal Co., Consolidation CoalCo., and Chevron Oil Co.;noncompetitive or settlement leasesscheduled to be issued in 1984.Noncompetitive lease (North Duck NestCreek) issued to AMAX Coal Co. inSeptember 1982; remaining twocancellation agreements (ThermalEnergy Inc. and Wesco Resources Inc.)signed but Northern Cheyenne did notconcur

4. Public Law 96-476(Oct. 19, 1960; asamended in Public Law98-140; Oct. 31, 1983)a) Rattlesnake NRA Established Rattlesnake Disputes over administration of the

National Recreation Area bidding rights resolved in 1983and Wilderness, allowing amendment; bidding rights issued toDOI to exchange private Montana Power Co. on Nov. 19, 1983,inholdings for bidding will expire Nov. 1, 1995

DOI is encountering problems overwhether the lands the companies haveselected are more suitable forcompetitive lease than exchange, andover low quality coal (Belco)

Procedures followed by DOI in pursuingthe Utah P&L exchange were criticizedby the General Accounting Office

Outstanding issues include agreement onthe exchange values, consultation withthe Governor of New Mexico, JusticeDepartment antitrust review, finalenvironmental analysis. Lands selectedfor exchange are also included in theBisti No. 1 competitive lease tract

The two disputed cancellation agreementsmay have to be resolved throughlitigation

Table 16.–Summary of Recent Exchange Proposals (Continued)

Authorization andexchange Description Current status Comments

rights which may beexercised in a competitivecoal lease sale or coal

5. Sec. 106, FLPMA lease modification

a) Corral Canyon On June 24, 1983, DOIexchanged (with RockyMountain Energy Co.) 1,220acres of private inholdingsin Grand Teton NationalPark for 1,190 acres ofFederal land containing 22.3million tons of coal

b) Circle West

c) Lee Ranch

Economic exchange proposedby Meridian Land & MineralCo. January 1961 oncheckerboard lands ineastern Montana; deedexchanged Sept. 8, 1983;Meridian receivedapproximately 50 millionadditional tons, for a totalof approximately 220 milliontons; agreed to pay 1percent royalty for coal innew consolidated tract

Economic exchange proposedby Sante Fe Railroad Co. incheckerboard lands in NewMexico

d) Teton Valley Ranch Exchange proposed by TetonValley Ranch, of 354 acresprivate land in WyomingNational Elk Refuge for1,000 acres public coal incheckerboard area nearPoint of Rocks coal

6. AVF Exchanges reserves

a) Whitney Benefits Proposed AVF exchangeunder SMCRA; involved1,200 acres of leasedprivate lands in the TongueRiver Valley

Completed

Completed

Original proposal was for 12,298 acres ofcoal land containing approximately 148million tons, for 7,544 acres Federalcoal (approximately 120 million tons);BLM focusing on smaller exchangealternatives. Draft land use planningamendment and environmental analysispublished Nov. 28, 1983; decision onwhether to proceed with exchange ispending

Scheduled for possible final decision latein 1984

Rocky Mountain Energy purchased theinholdings from various private partiesfor the purpose of the exchange; suitpending

Suit pending; recent discoveryhabitat on new consolidatedlead to controversy

of wildlifetract may

BLM still considering proceeding withcompetitive leasing of two tractsinvolved in the proposed exchangealternatives (Lee Ranch Middle and LeeRanch West Tracts)

Non-Federal sections of land incheckerboard owned by Rocky MountainEnergy; Teton Valley Ranch plans tolease Federal coal in the exchange toRME if the exchange is completed

Suit pendingProceeding slowly; questions overcollection of administrative costs, andextent to which private holdings qualifyfor AVF exchanges; drilling program isbeing proposed for portion of lands

SOURCE: Robert Uram, “Coal Exchanges,” contractor report to OTA, Dec. 23, 1983.


protection through exchanges. Congress fre-quently gives Federal agencies condemnationpowers to carry out specific projects; mandatoryexchanges would involve similar activity. How-ever, some recent experience shows that ex-change availability may be eased by covering ex-change possibilities more explicitly during landuse planning. This also would eliminate the needto go back and amend plans when a particularproposal is suggested.

BLM recently issued a written policy statementoutlining the circumstances under which fee ex-changes of leasable and salable minerals may begranted. But that policy statement essentially islimited to a list of 12 factors that field officesshould consider in determining if a fee exchangewould be in the public interest. Those factors are:

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

The exchange would consolidate Federalholdings into a logical mining unit(s).The exchange would consolidate non-Fed-eral holdings into a logical mining unit(s).The exchange would serve a national re-source management or protection need.The exchange would simplify jurisdictionand allow Federal land use planning effortsto be confined to an area in which theUnited States controls the mineral devel-opment.The exchange would reunite Federal sur-face and subsurface estates.The exchange would eliminate isolatedtracts and checkerboard patterns of Federalminerals.The exchange would achieve a manage-ment goal without using appropriated fundsto pay for the resources needed by theUnited States.The exchange would meet needs of Stateand local people.The non-Federal lands to be received in theexchange would serve the public better inpublic ownership than the minerals to betransferred in the exchange.The exchange would enhance competitivebidding for the Federal minerals.The potential revenue from a lease or saleof the Federal minerals consolidated by theexchange would be greater than the poten-tial revenue from a lease or sale of the min-

12.

erals in Federal ownership prior to the ex-change.The exchange does not involve a transferof a fee interest in Federal minerals for aless than fee interest (e.g., conservation orscenic easements) in non-Federal lands. Ifa less than fee interest in non-Federal landsis all that is needed, a fee exchange shallbe followed by a competitive bidding, ora modified competitive bidding; or a mod-ified competitive bidding, sale of the un-needed interests as the situation dictates.

One or more of these factors must be presentin any fee exchange proposal, and an exchangethat would have an opposite effect to any factorshould not be pursued. While this policy state-ment is a worthwhile start on developing guide-lines for effecting exchanges, it still does not pro-vide sufficient guidance to field personnel andis only applicable to fee exchanges. Lease ex-changes still need congressional authorization.

In developing an effective exchange program,BLM needs to pay particular attention to environ-mental analysis of exchange tracts. This becamean issue in a recent exchange that was, at leastin part, environmentally motivated, when it wasdiscovered after the exchange was complete thatthe tract the company was given includes poten-tially valuable wildlife habitat.

A second factor that influences the extent towhich exchanges can be used is the willingnessof the industry to accept the bidding rights in-terior offers in an exchange. In the case of feecoal exchanges, where the holder of a coal rightreceives unleased and unencumbered Federalcoal, there appears to be no bar to ready accept-ance of the rights granted. Along with the eco-nomic benefits from “blocking up” checkerboardareas, the elimination of Federal supervision anddiligence and royalty provisions may be factorsinfluencing the easy acceptability of fee coal ex-changes.

There is the possibility that exchanges wouldbe suggested most often in situations where agen-cy or public pressure or other legal impedimentsmay make mining of an existing leaseholdingquite difficult. In such cases, the assurance ofreceiving a bidding right in exchange for a tract


that cannot be developed without serious resist-ance may more than compensate for any real orperceived problems with Federal leasing or bid-ding rights. It is clear, however, that the con-tinued inability of Interior to lease coal regularlyand without conflict will continue to be an im-pediment to lease exchanges for bidding rightsbecause companies accepting such rights havelittle assurance of when or even if they will beable to exercise them.

An additional question is whether the exerciseof a certificate of bidding rights issued in ex-change for a coal lease or a PRLA should be con-sidered a distribution of funds to a State under30 U.S.C. 191. The Department does not con-sider an exercise of a bidding right to be a distri-bution of revenues, but to date, no bidding rightshave been issued under DOI's general regula-tions. If DOI’s interpretation is correct, a signifi-cant exchange program could result in the lossof revenues to a State in which a bidding rightis exercised (compared to the distribution ofbonus payments, royalties, etc., under a normallease). However, as noted above, issuing biddingrights instead of a direct exchange for anotherparcel of land could present significant cost sav-ings for BLM. Bidding rights also eliminate the po-tential for an exchange resulting in a coal leasebeing issued on a noncompetitive basis.

BLM also must resolve outstanding issues aboutthe entities eligible to participate in exchanges.The major question here is whether the fee ex-change provisions in Section 206 of FLPMA allowunleased Federal coal to be transferred to entities(primarily railroad companies) that otherwise arenot allowed to hold Federal coal leases underSection 2(c) of the Mineral Leasing Act of 1920.This issue principally affects coal in “checker-board” areas where DOI has proposed or con-templated exchanges with railroad companies ortheir subsidiaries. The purpose of these kinds ofexchanges would be to consolidate land owner-ship patterns to enable formation of logical min-ing units.

Another major area of uncertainty is valuationprocedures for the minerals involved. Such pro-cedures are relatively well-defined for land ex-

changes, but these are inappropriate for use inthe majority of mineral exchanges. BLM feels thatdetailed procedures for value determination aremore appropriately addressed in the BLM man-ual and in instruction and guidance memorandarather than the program regulations. However,as in other areas discussed previously (e.g.,guidelines and standards for data adequacy),while such internal documents provide greaterflexibility for BLM, they are not subject to formalpublic review and comment, and can be changedmore easily than regulations. If such regulationswere drafted skillfully they could provide suffi-cient guidance to facilitate more effective partici-pation by coal companies and other interestedgroups without undermining the Bureau’s needfor flexibility. The general guidance in suchregulations could then be supplemented by in-ternal memoranda and the BLM manual. Further-more, some of Interior’s valuation problems maybe eased if it were to use publicly available, ratherthan proprietary, models. Frequently it uses a pro-prietary model, which complicates the ability ofthe affected company and the public to evaluateand criticize the assumptions leading to the equalvalue determination.

The usefulness of the exchange program ulti-mately depends on the amount of resources in-terior is willing or able to devote to them. Evenin economic exchanges, Interior has found thatexchanges require a high commitment of Depart-mental resources compared to direct leasing. Thisis because of the need to evaluate two parcels(the offered and selected lands) to end up withonly a single leasable parcel. Where coal is be-ing acquired through exchange for environmentalprotection (as in the Bisti exchange), Interior mustexpend considerable resources with no oppor-tunity for an economic return on those resources.

Exchanges could be a valuable tool for resolv-ing conflicts over environmentally sensitive leasetracts if all of the issues discussed above were re-solved, and if BLM had authority to pursue leaseexchanges. Until these and other related prob-lems are resolved, however, the ability of Interiorto complete exchanges will be constrained.


CHAPTER 4

1. Bureau of Land Management, U.S. Departmentof the Interior, Appropriation Summary State-ment: Management of Lands and Resources (un-published, 1983).

2. Bureau of Land Management, U.S. Departmentof the Interior, Draft Coal Environmental ImpactStatement, Green River-Hams Fork Region,Round Two (Washington, D. C.: U.S. Govern-ment Printing Office, 1983).

3. Bureau of Land Management, U.S. Departmentof the Interior, Final Environmental Statement,Federal Coal Management Program (Washing-ton, D.C.: U.S. Government Printing Office,1979).

3a. Bureau of Land Management, U.S. Departmentof the Interior, Fort Union Regional Coal En-vironmental Impact Statement, Draft (Washing-ton, D. C.: U.S. Government Printing Office, July1982).

4. Bureau of Land Management, U.S. Departmentof the Interior, Fort Union Coal Tract Sum-maries, September 1981.

4a. Bureau of Land Management, U.S. Departmentof the Interior, Green River-Hams Fork DraftCoal Environmental Impact Statement, RoundTwo (Washington, D. C.: U.S. Government Print-ing Office, 1983).

4b. Bureau of Land Management, U.S. Departmentof the Interior, Powder River Coal Tract Sum-maries (Washington, D. C.: U.S. GovernmentPrinting Office, April 1983).

5. Bureau of Land Management, U.S. Departmentof the Interior, Preliminary Draft, Regional Leas-ing Levels (unpublished, Nov. 22, 1982).

6. Bureau of Land Management, U.S. Departmentof the Interior, private communication to OTA.

7. Bureau of Land Management, U.S. Departmentof the interior, San Juan River Regional Coal En-vironmental Impact Statement, Second Draft(Washington, D. C.: U.S. Government PrintingOffice, October 1983).

7a. Bureau of Land Management, U.S. Departmentof the Interior, Uinta-Southwestern Utah FinalEnvironmental Impact Statement, Coal (Wash-ington, D. C.: U.S. Government Printing Office,February 1981).

8. Bureau of Land Management, U.S. Departmentof the Interior, West-Central North DakotaManagement Framework Plan Summary, Cen-ter-Stanton Deposit, July 1981.

8a. Cannon, James, Environmental Protection Pro-

8b.

9.

10,

10a.

10b.

10c.

10d.

10e.

11

1 la.

12.

13.

14.

15.

16.

17.

17a.

18.

cedures Within the Federal Coal ManagementProgram (contractor report to OTA, Dec. 19,1983).Crane, Donald, Case Study: Fort Union Region(contractor repoti to OTA, Dec. 19, 1983).Fish and Wildlife Service, U.S. Department ofthe Interior, private communication to OTA.Forest Service, U.S. Department of Agriculture,private communication to OTA.Hardaway, John, Crane, Donald, and Reith,Charles, Case Study: San)uan River Region (con-tractor report to OTA, Dec. 19, 1983).Hayden, Brace, Case Study: Powder River Re-gion (contractor report to OTA, Dec. 19, 1983).Kimball, Dan and, Hardaway, John, Case Study:Uinta-Souhwestern Utah Region (contractor re-port to OTA, Dec. 19, 1983).Kimball, Dan, and Stoecker, Robert, Case Study:Green River-Hams Fork Region (contractor re-pOrt to OTA, Dec. 19, 1983).Larson, Douglas, Issues Related to Environmen-tal Analysis of Federal Coal Lease Tracts in FiveWestern Coal Regions: Overview (contractorreport to OTA, Dec. 19, 1983).Letter, from The Secretary, U.S. Department ofthe Interior, to The Honorable Quentin Burdick,U.S. Senate, June 8, 1983.Memorandum, from the Deputy Director forEnergy and Mineral Resources, Bureau of LandManagement, to the Colorado State Director,Bureau of Land Management, July 6, 1983.Memorandum, from The Secretary, U.S. Depart-ment of the Interior, to The Director, Bureau ofLand Management, Apr. 5, 1983.Minutes, Federal-State Coal Advisory Board,Dec. 3, 1982.National Wildlife Federation v. Burford, Civil Ac-tion No. 82-1166 (D. D. C., pending).Natural Resources Defense Council v. Burhord,Civil Action No. 82-2763 (D. D. C., pending),Northern Cheyenne Tribe v. Watt, Civil ActionNo.Office of Technology Assessment, U.S. Con-gress, Management of Fuel and Nonfuel Miner-als on Federal Lands, OTA-M-88 (Washington,D. C.: U.S. Government Printing Office, 1979).Uram, Robert, Coal Exchanges (contractorreport to OTA, Dec. 23, 1983).U.S. Department of the Interior, Secretarial IssueDocument, Fort Union Coal Production Region,1983.

Appendixes

Appendix A

Environmental Laws

In addition to the specific requirements of the Fed-eral Coal Leasing Amendments Act (FCLAA) and theFederal Land Policy and Management Act (FLPMA)related to environmental planning and assessment, anumber of other environmental laws apply to the Fed-eral coal management program. These include theSurface Mining Control and Reclamation Act, the Na-tional Environmental Policy Act, and the Clean Air andWater Acts. This section will briefly describe the pro-visions of these laws as they relate to surface miningoperations, discuss the impacts of mining to whichthey pertain, and review issues raised by the im-plementation of these acts in the coal program. A listof other environmental laws that may affect leasingor mining in the West may be found at the end ofchapter 3.

Surface Mining Control andReclamation Act

Congress approved the Surface Mining Control andReclamation Act (SMCRA) (Public Law 95-87, 30U.S.C. 1201 et seq.) in August 1977. SMCRA estab-lishes a detailed national program for addressing theenvironmental effects of coal mining. Of particular im-portance are the act’s requirements that surface coalmining operations be conducted in accordance withenvironmental protection performance standards (sec.51 5), and that Federal lands be reviewed to determinetheir acceptability for all or certain types of surfacemining, either as part of land use planning processesat the Federal, State, and local levels, or as a resultof an unsuitability petition (sec. 522). SMCRA requiresoperators to post a bond to insure the mined land isreclaimed.

The performance standards of section 515 are mini-mum standards applicable to various aspects of themining and reclamation process. Under SMCRA, theStates may, if they choose, impose standards that aremore stringent. Among other things, the standardsrequire:

maximum utilization and conservation of the coalbeing recovered;restoration of disturbed land to original or betterconditions;restoration to the approximate original contourof the land surface;stabilization and protection of all surface areas;protection of prime farmlands through specificreclamation techniques;

Ž minimization of disturbances to the existing hy-drologic balance; and

. limitation of mining on steep slopes.Section 522 of SMCRA establishes a procedure for

designating lands as unsuitable for all or certain typesof coal mining operations. The Secretary of the Interiordetermines unsuitability for Federal lands, while Stateshave authority over non-Federal lands. Section 522(a)provides specific unsuitability criteria which definecategories of land that must be protected from, or dur-ing, mining (incorporated in the Bureau of LandManagement’s (BLM) land use planning regulationsas criteria #1, #3, and #7). Interested parties also maypetition the permitting agency (the Office of SurfaceMining or a State regulatory agency in States with ap-proved programs) to have areas designated unsuitable;the petition must be granted if it is determined thatreclamation of disturbed lands is not economically ortechnologically feasible. Unsuitability status also maybe granted, if as a result of the petition, it is determinedthat mining operations will:

be incompatible with existing land use plans;significantly affect important fragile or historiclands;result in substantial loss or reduction in the pro-ductivity of renewable resource lands which pro-duce food or fiber; orsubstantially endanger life and property in natu-ral hazard lands (i. e., areas subject to frequentflooding and areas of unstable geology).

Federal Agencies

SMCRA also created the Office of Surface MiningReclamation and Control (OSM) within the Depart-ment of the Interior (DOI) to implement the statute’svarious programs. OSM reviews and approves/disap-proves State programs for controlling surface miningoperations (and abandoned mine lands). The actoriginally provided for slightly less than 3 years of Fed-eral enforcement of State-issued operating permits im-plementing the most stringent of the act’s performancestandards (known as the “interim regulatory pro-gram”). At the end of three years (June 3, 1980), pri-mary regulatory responsibility for the program was tohave shifted to those States whose proposed programfor assuming regulatory primacy had been approvedby DOI. In those States in which primacy was notachieved, a Federal program is to be implemented andadministered by OSM. Three and one-half years after

139


enactment of the statute, all mining operations wereto have been in compliance with permits issued inaccordance with the full range of regulatory require-ments, as administered by either the States or OSM,

Because substantial Western coal reserves areowned by the Federal Government, OSM has had di-rect responsibility not only for enforcing the act’sregulatory requirements, but also for issuing operatingpermits on specific mines. The responsibility for over-seeing mining activities on Federal lands, lies primarilywith OSM, as assisted by the Bureau of Land Manage-ment, the U.S. Forest Service, and the U.S. Geologi-cal Survey, as well as with those Western States withFederal lands within their boundaries that have ap-proved permitting programs and have signed coop-erative agreements with DOI.

BLM is the leading agency for Federal minerals in-cluding resource conservation, diligence, and royaltiesunder the Mineral Leasing Act. Under a variety of Fed-eral statutes, BLM also is responsible for the manage-ment and protection of surface resources on publicdomain lands. BLM can set post-mining land use per-formance bond limits to assure protection of theseresources. The Forest Service performs a similar rolefor National Forest lands.

OSM, with the concurrence of BLM and the ForestService, submits recommendations to the Secretary ofthe Interior concerning the approval or disapprovalof mine plan applications. The Forest Service mustconsent to the issuance of mine plan approvals formines within the boundaries of any National Forest.Applicable Federal, State, and local agencies retainsimilar authority with respect to mines that mightadversely affect any public park or site included in theNational Register of Historic Sites.

States

Each of the Western States with significant coal re-serves had enacted surface mining legislation in the1970’s prior to passage of SMCRA. The stringency ofthe pre-SMCRA State programs varied significantly,with Wyoming and Montana generally recognized ashaving had the most stringent programs, and Utah andNew Mexico the least stringent. All of the WesternStates have revised their programs to comply withSMCRA, and have received approval of their perma-nent regulatory programs and have qualified forassumption of primary regulatory jurisdiction of sur-face mining and reclamation.

Thus, the States have assumed primary responsibilityfor mine plan compliance and enforcement of theAct’s requirements. Those States with approved per-mit plans that have entered into a cooperative agree-ment with DOI also have the authority to regulate min-

ing on Federal lands within their boundaries. TheSecretary of the Interior, however, retains the authorityto approve or disapprove mining plans on Federallands and to designate Federal lands unsuitable formining.

State Permit Programs.–To accomplish the goalsestablished by the Act, State permit programs for sur-face mines and for surface operations of undergroundmines were mandated. Each application for a surfacecoal mining and reclamation permit must include de-tailed information about the type and method of coalmining operation and the engineering techniques andequipment to be used; the probable hydrologic con-sequences of the mining and reclamation, both on andoff the mine site; any manmade features or significantarchaeological sites that may be affected by mining;the geological and physical characteristics of the coal,including a chemical analysis of potentially acid- ortoxic-forming strata; a soil survey of potential primefarmland; and the reclamation plan.

The probable hydrologic consequences of miningand reclamation must be determined relative to thehydrologic regime and the quantity and quality of sur-face and groundwater systems including dissolved andsuspended solids under seasonal flow conditions. Suf-ficient data must be collected to enable the regulatoryagency to assess the probable cumulative impacts ofall mining in the area on hydrology and water avail-ability.

The reclamation plan must describe the conditionof the land prior to mining including its existing andpotential land uses and its productivity as well as itsaverage yield of food, fiber, forage, or wood productsunder optimum management. The plan also mustspecify the proposed post-mining land use and de-scribe in detail how this use will be achieved includingthe engineering techniques and equipment to be used,the cost per acre of reclamation, and a detailed time-table for accomplishing reclamation. In addition, theplan must describe the means of compliance withapplicable air and water quality and health and safetyregulations.

All surface mining permits issued under the Act mustrequire that the coal mining operations meet all appli-cable environmental protection performance stand-ards. These standards govern the maximum recoveryof fuel; restoration of the land to its approximateoriginal contour; use of explosives; waste disposal, in-cluding the use of waste piles as dams or embank-ments; construction of access roads; and revegetation.Additional, more stringent standards apply to environ-mentally sensitive areas such as prime farmland, steepslopes, alluvial valley floors, and timber lands.

Permits for underground mining also must requirethe mine operator to prevent subsidence to the ex-

Appendix A—Environmental Laws Ž 141

tent possible, seal all openings to the surface, and pre-vent acid or other toxic drainage.

Water Resource Impacts

OSM and the Environmental Protection Agency(EPA) are the principal Federal agencies responsiblefor review of water resource impacts of coal miningactivities. Water resource data are major componentsof a mine permit application, and compliance withwater resource performance standards must bedemonstrated before an application can be approved.

Section 51 S(b) of SMCRA establishes performancestandards related to water resource impacts. Theseinclude:

● control of discharges from mining and reclama-tion activities.

• control of erosion and attendant water pollution;● impoundment of water on mining sites; and● protection of groundwater recharge capacity.Control of discharges from mining and reclamation

activities is regulated by OSM, the State regulatoryauthority, and the agency responsible for implemen-tation of the Clean Water Act in each State (seebelow). The Clean Water Act requires mining opera-tions to obtain discharge permits and to comply withEPA or State effluent limitations. However, the CleanWater Act permit system applies only during the ac-tive phase of mining, Under SMCRA all water dis-charged as a result of coal mining and reclamationactivities is regulated. Effluent limitations establishedby OSM are generally similar to those adopted by EPA.

Also, OSM regulations require sediment controlmeasures using the “best technology currently avail-able” and minimum standards for permanent andtemporary impoundments as part of reclamation activ-ities. Permanent impoundments may be constructedonly if size and design criteria are adequate to ensurestability, safety, and access. In addition, SMCRA re-quires that the recharge capability of the mined areabe restored to the approximate pre-mining condition.Furthermore, mine operators are required to monitorgroundwater and surface water quantity and qualityon the permit area and in the surrounding area before,during, and after mining.

Alluvial Valley Floors

Under provisions of SMCRA, alluvial valley floors*(AVFS) in the Western United States are given special

protection because of their agricultural and hydrologicimportance. The more important AVFs are protectedfrom coal mining and its associated disturbance. Theless important AVFs may be mined, but standards forreclamation are higher than for other types of minedareas.

Section 510(b)(5) of the act allows the Secretary ofthe Interior to exchange unleased Federal coal re-serves for existing leases or non-Federal lands that can-not be mined because of AVF designations providedthat coal is not yet being produced from the mine andthe operator had made a substantial legal or financialcommitment to develop a mine before January 1,1977. The Act also requires the Secretary to exchangenon-Federal coal lands in AVFs that cannot be minedfor available Federal coal lands of comparable value;these exchanges are not subject to the requirementof substantial legal and financial investments.

The impact of the AVF statutory provisions, adoptedregulations, and guidelines have been the subject ofcontinued debate among industry and regulating Gov-ernment agencies. industry has claimed that the AVFprovisions are overly complex, lead to significantdelays in processing permits, and may ultimately leadto significant loss of recoverable reserves.

National Environmental Policy Act

The National Environmental Policy Act of 1969(NEPA; 42 U.S.C. 4321 et seq.) restructured Federalagency decisionmaking in favor of a systematic, inter-disciplinary approach that would ensure that environ-mental amenities and values receive appropriate con-sideration along with the traditional economic andtechnical factors. NEPA was the first major environ-mental legislation approved by Congress, and it hasremained the most far-reaching in scope.

In general, NEPA has a threefold purpose: 1) todeclare a national policy to create and maintain con-ditions under which man and nature can exist in pro-ductive harmony and can fulfill the social, economic,and other requirements of present and future genera-tions; 2) to increase the understanding of ecologicalsystems and natural resources; and 3) to promote ef-forts that will prevent or eliminate damage to the envi-ronment. As one means of achieving these purposes,NEPA requires all Federal agencies to include adetailed statement in every recommendation or reporton proposals for legislation and other” . . . major Fed-

● Alluvial valley floors are those stream valleys in the Western United Stateswhich: 1 ) are underlain by unconsolidated gravel, sand, silt, and clay; 2) havea stream flowing through them; 3) have a generally flat valley floortopographic surface; and 4) have an agricultural importance. The relative

importance of these valleys is a function of the water supplies available inthe specific valley area. The agricultural activities generally include irrigatedor subirrigated hay lands, developed pasture lands, critically important graz-ing areas, or lands that could be developed for any of these purposes.

34-756 0 - 11 - QL3


eral actions significantly affecting the quality of thehuman environment . . . “ that describes:

possible environmental impacts of the proposedFederal action,any adverse environmental effects that cannot beavoided should the proposed action be im-plemented,alternatives to the proposed action and their envi-ronmental impacts,the relationship between local short-term uses ofman’s environment and the maintenance andenhancement of long-term productivity as it ap-plies to proposed Federal actions, andany irreversible and irretrievable commitments ofresources that would result from implementationof the proposed action.

All coal-related activities that have a significant im-pact on the environment and that need Federalauthorization require an environmental impact state-ment (EIS). This includes regional coal lease sales onFederal lands, large coal conversion facilities, and, insome cases, permits to conduct surface mining oper-ations on Federal lands. Although permits issued bythe EPA under the Clean Air and Water Acts are ex-empt from the EIS requirement, those acts requireseparate analyses of a project’s impact on the envi-ronment (see below). Regulations to guide the imple-mentation of NEPA have been promulgated by theCouncil on Environmental Quality (CEQ) (40 C.F.R.1500-1 508). A large body of Federal case law has fur-ther defined NEPA requirements, particularly with re-gard to the scope and contents of EISs.

In order to determine whether a proposed actionis “major” and if it “significantly” affects the environ-ment, Federal agencies are required to prepare envi-ronmental assessments (EAs). These provide a brief ex-amination and analysis of proposed actions and ofalternatives to those actions, a discussion of the needfor the proposed action, an examination of the envi-ronmental impacts of the proposed actions and alter-natives, and a list of government agencies and peopleconsulted during the preparation of the EA. Environ-mental assessments are public documents. If an EAindicates that an action is not “major” or that it willnot “significantly” affect the environment, the CEQregulations allow the agency to make a “finding ofno significant impact” (FONSI). Such findings must bepublished with an explanation of the basis for theagency determination. No detailed EISs are requiredfor actions which are found not to have significantimpacts.

An EIS is prepared by BLM for each regional coallease sale during activity planning, immediately fol-lowing the ranking of tracts and selection of alter-natives by the Regional Coal Team (RCT). The EIS mustanalyze site- specific environmental impacts on eachtract or combinations of tracts (alternatives) being con-sidered for leasing; the cumulative environmental im-pacts from each preferred or alternative combinationof lease tracts and sale schedules; and the potentialeffects of a “no action” alternative (usually either nonew leasing, or no competitive leasing). Under thecurrent leasing program regulations, the EIS is the onlypoint pre-leasing at which cumulative impacts mustbe assessed. However, approval of a land use plan(Resource Management Plan–RMP) under FLPMA hasbeen determined to be a major action significantlyaffecting the environment, and the environmentalanalysis of alternatives is an integral part of the RMPprocess. Thus, as RMPs are prepared, the considera-tion of cumulative impacts from land use planningdecisions will be included in the decisionmaking proc-ess before the completion of tract ranking and theselection of alternatives.

CEQ regulations implementing NEPA also requirethe preparation of an EIS when rulemaking is initiatedby significant new circumstances or information rele-vant to environmental concerns, and thus is antici-pated to have a significant impact on the environment.The initiation of the new Federal coal managementprogram in 1979 was accompanied by a detailed pro-grammatic EIS prepared in accordance with NEPA.When those regulations were revised in 1982-83, DOIprepared an EA that concluded that a second full EISto analyze those revisions would not be necessary(FONSI). One basis for this decision was that the revi-sions to the regulations are sufficiently close to oneof the leasing alternatives discussed in the 1979 Pro-grammatic EIS that preparation of a supplemental EISwas considered unnecessary,

Critics of that decision assert that the EA did not takea sufficiently “hard look” at the impact of leasingchanges to justify a “finding of no significant impact.”They argue that the revised regulations included sig-nificant new circumstances or information comparedto the coal program studied in the 1979 ProgrammaticEIS, and therefore merited a revised EIS. To supportthis argument, the critics cite the substantive changesin the methodology for setting regional leasing levelsin the 1982 regulations which resulted in significantincreases in those levels. Furthermore, the critics notethat, since the 1979 EIS, a number of in-depth analy-

Appendix A—Environmental Laws • 143

ses of Federal coal development issues have been con-ducted (including the 1981 OTA report An Assessmentof the Development and Production Potential of Fed-eral Coal Leases), that introduced new data that wereunavailable in 1979.

The Clean Air Act

The Clean Air Act establishes a national system ofair quality regulation. Before 1970, air pollution con-trol essentially was left to the States, with the FederalGovernment providing technical and financial assist-ance for planning and research and development.Under the Act, EPA is responsible for implementingFederal regulations and standards; States are man-dated to devise State implementation plans (SIPS) and,in the absence of State action, Federal interventionis required.

The central feature of the 1970 Clean Air ActAmendments was the requirement that EPA promul-gate National Ambient Air Quality Standards(NAAQS). The NAAQS define air quality in terms ofambient concentration of pollutants. While thesestandards do not regulate emissions from individualsources, they do represent target levels for air quality.Under the Clean Air Act, two types of ambient airquality standards are designated: primary standards,which are designed to protect human health; and sec-ondary standards, which are intended to safeguardpublic welfare.

Pursuant to the 1970 Clean Air Act Amendments,EPA identified six pollutants as having potentiallyadverse effects on public health and welfare, andestablished primary and secondary NAAQS for each.These pollutants are sulfur oxides (SOX), particulatematter, nitrogen dioxide (NO2), hydrocarbons, photo-chemical oxidants, carbon monoxide, ozone, andlead.

So that pollution control programs can be managedlocally, 247 air quality control regions (AQCR) weredesignated. Each AQCR is classified as to whether itmeets national standards. The classification of an areawith respect to ambient air quality has important con-sequences. Regions that are found by EPA to be innonattainment status are subject to a particular set ofrestrictions (“offset” requirements) under the Act.Nondegradation regions (where air is cleaner than thestandards), are subject to a different set of regulations,which are intended for “prevention of significantdeterioration” (PSD). Regardless of an area’s classifica-tion, almost every new major source of emissions isrequired to undergo a preconstruction review.

State Implementation Plans

The State role centers on the preparation and im-plementation of a plan, consistent with EPA guidelines,that sets out control strategies for meeting and main-taining NAAQS in various parts of the State. Stateshave considerable discretion in deciding what emis-sion limitations and other controls on individualsources to use in cleaning up their air, as long as theirSIPS are shown to be capable of achieving the nationalstandards. State plans must include an enforceablepermit program for regulating construction or opera-tion of any new major stationary source in nonattain-ment areas or significant modification to an existingfacility.

Prevention of Significant Deterioration

The 1970 Clean Air Act Amendments did not ad-dress the question of air quality in areas alreadycleaner than NAAQS require. In 1972, environmentalgroups brought suit against the EPA to prohibit theadministration’s approval of SIPS that failed to preventsignificant deterioration of air quality. The outcomeof the legal action was a court order that EPA developa program to prevent the degradation of air qualityin clean areas. In 1974, PSD regulations were promul-gated and incorporated into all SIPS and in 1977 wereincorporated in the act with some changes.

In general, the PSD program divides clean air areasinto three classes. Certain National Parks, wildernessareas, and monuments that existed when the Act waspassed were immediately designated as class I areas.Class I areas are subject to the lowest PSD incrementsand are primarily valued for their scenic beauty. Allother clean air areas were designated class II. In classII areas, some additional air pollution and moderateindustrial growth were allowed. Individual States orIndian Tribal governing bodies can redesignate someclass II areas as class III areas where major industrialdevelopment is foreseen. In class III areas, air pollu-tion up to one-half the level of the secondary stand-ards would be permitted. The States or Indian Tribesalso can redesignate class II areas as class 1. Either typeof redesignation is subject to hearings and consulta-tions with the managers of affected Federal lands, orStates in the case of Indian action, and approval byEPA.

All SIPS must specify emission limitations and otherstandards for each class area. Maximum allowableconcentrations for a specified period of exposure mustnot exceed the applicable primary or secondaryNAAQS, whichever is stricter.


To obtain a permit for a facility in a nondegrada-tion area, a special preconstruction review must dem-onstrate that it will not cause air pollution in excessof NAAQS or PSD standards more than once per yearin any AQCR. Best available control technology(BACT) must be used for all pollutants regulated bythe Act, and the effects of the emissions from the fa-cility on the ambient air quality in the areas of interestmust be predicted. Impacts on air quality that couldresult from any growth associated with the facility mustalso be analyzed. The PSD impact projections arecumulative for the region of the source. Additionalassessments of the effects on visibility in class 1 areasand on air quality-related values also must be includedin the PSD review.

Fugitive dust emissions currently are excluded fromthe PSD regulations, and coal mines are not subjectto PSD review. State air permits are required for mostcoal mines, but State PSD permits would only be re-quired if projected emissions were very high (250 mil-lion tons per year or greater).

Mining Activities

Air quality concerns regarding coal mining activi-ties focus on fugitive dust and its effect on totalsuspended particulate (TSP). Thus far, air quality con-cerns have had only a minor effect on Western coaldevelopment. For example, in some areas of thePowder River Coal Region, fugitive dust emissionshave exceeded the National Ambient Air QualityStandards, and mining operations have had to adoptbetter dust control measures. However, the level ofproduction in this region has not been constrained byair quality standards. Currently, emissions (88 milliontons annually) are far below the permitted air qualitycapacity of 250 million to 290 million tons annually.

Roads are the major source of fugitive dust from sur-face coal mining operators. Other sources of fugitivedust are trains, coal storage and processing facilities,spoil piles, and reclamation areas. Methods for con-trolling fugitive dust emissions include: 1 ) periodicwatering and chemical stabilization of unpaved roads;2) paving roads; 3) enclosing, watering, or treadinghaul trucks and railroad cars; 4) substituting conveyorsystems for haul trucks; 5) minimizing the area ofdisturbed land; 6) prompt revegetation of regradedlands; and 7) covering coal storage areas. Each sur-face mine in the West employs at least one of thesemethods. For example, many mines now enclose theircoal storage areas and all mines water haul roads andrevegetate topsoil stockpiles.

The Clean Water Act

The Clean Water Act establishes national waterquality goals that call for the protection and propaga-tion of fish and wildlife, and the elimination of all pol-lutant discharges. The States have the primary respon-sibility for achieving these goals and for planning thedevelopment and use of land and water resourcesconsistent with them. Each State is required to developand implement, subject to EPA approval, a compre-hensive water quality management plan that includeswater quality standards, These standards consist of thedesignated uses of the waters involved, including theiruse and value for public water supplies; propagationof fish and wildlife; recreational, agricultural, indus-trial, and other purposes; and navigation. In addition,the standards include water quality criteria for thewaters based on these uses.

In general, the water quality standards are to beachieved through effluent limitations on dischargesfrom point sources. However, for those waters forwhich the effluent limitations are not stringent enoughto implement the applicable water quality standard,the State must establish a total maximum daily loadfor the relevant pollutants. This load must be set atthe level necessary to implement the applicable wa-ter quality standards with seasonal variations and amargin of safety that takes into account any lack ofknowledge concerning the relationship between ef-fluent limitations and water quality.

No comprehensive Federal policy for water re-source management has been established. The avail-ability of water and restrictions on its usage are theresponsibility of States and Interstate Water Commis-sions. In all Western States, water supplies diminishedor degraded by mining activities are required to bereplaced by the operator.

Effluent Limitations

Effluent limitations are restrictions established by aState or EPA on quantities, rates, and concentrationsof chemical, physical, biological, and other consti-tuents that are discharged from point sources. Effluentlimitations may be categorized by: 1) the sources forwhich they have been established, 2) whether thosesources discharge directly into receiving waters or intoa publicly owned treatment works, and 3) the degreesof control required for each category of sources orpollutants and the dates those controls become man-datory. Effluent limitations for coal mines regulatedischarges of iron, manganese, and total suspendedsolids, as well as the pH.

Appendix A—Environmental Laws ● 145

In general, the 1977 Amendments require all cate-gories of point sources to apply the best practicablecontrol technology currently available in order to meetthe effluent limitations. Slightly more or less stringenttechnological controls may be imposed, dependingon the source category and the type of effluent. Indetermining the control measures and practices to beapplicable to point sources, EPA must take into ac-count: the age of equipment and facilities involved;the process employed; the engineering aspects of thevarious types of control technologies; processchanges; nonwater quality environmental impacts (in-cluding energy requirements); and the total cost ofachieving the limitation in relation to the effluent re-duction benefits to be achieved.

Permit Systems

Effluent limitations and water quality standards areimplemented through State certification programs andthrough the National Pollutant Discharge EliminationSystem (NPDES). An applicant for a Federal licenseor permit to conduct any activity that may result ina discharge into navigable waters must obtain Statecertification that the discharge will not violate any ef-fluent limitations, water quality standards, or NewSource Performance Standards (NSPS). Where the dis-charge will affect more than one State, the Federallicensing or permitting agency must condition the per-mit to ensure that all water quality requirements willbe met. In addition, when Federal regulations requireonly a construction permit, the certifying State mustbe given an opportunity to review the manner inwhich the facility will be operated in order to ensurethat water quality requirements will not be violated.If the State finds that the operation of the facility willresult in violations, the Federal agency may suspendthe license or permit.

NPDES is designed to ensure the orderly and timelyachievement of water quality goals without sacrific-ing economic or energy growth. Under NPDES, a fa-cility may be issued a permit for a discharge on thecondition that the discharge will meet all applicablewater quality requirements, NPDES permits are issuedunder EPA-approved State programs, or, where a Stateprogram has not been approved, by EPA. The permitsare for fixed terms not to exceed 5 years and can beterminated or modified for violations. Compliancewith the conditions under which an NPDES permit isissued is deemed compliance with the effluent limita-tions and water quality standards promulgated underthe Clean Water Act.

Water Availability and QualityImpacts from Mining

Coal mining activities disrupt groundwater flow andquality. Opening a pit for surface mining affects thelevel and flow of groundwaters. The mine pit will in-tercept all groundwater found above the pit floor.Groundwater may change direction or even reverseas water surrounding the pit flows toward the pit. Aswater flows into the pit, water levels in surroundingareas will fall. Ultimately, an equilibrium condition willbe established. When this condition is reached, how-ever, depends on the characteristics of the aquifers(water-transmitting rocks) and the length of time thepits are open.

Water quality also can be affected by coal miningactivities. Groundwater moving through backfilled sur-face mines is known to have substantially increasedconcentrations of total dissolved solids and other con-stituents. In addition, erosion of mine and reclama-tion areas can increase sediment loads in streams.Also, surface waters can be affected by slippage ofpolluted groundwaters into receiving streams.

Because of these impacts, effluent limitations havebeen established for mining operations, broken downinto those applicable to acid drainage and alkalinedischarge. Under the Clean Water Act, mining oper-ations must obtain discharge permits and comply withEPA or State effluent limitations for point sourcedischarges of pollutants to surface waters. However,the Clean Water Act permit system applies only dur-ing the active phase of mining including secondaryrecovery facilities and preparation plants; it does notextend to reclamation, nor does it cover nonpoint pol-lution sources or consider discharges to groundwater.These impacts must be addressed through the min-ing and reclamation permit under SMCRA.

The EPA may modify any of the limitations for apoint source if the owner of the source demonstratesthat the modified requirement will represent the max-imum use of technology within his economic capa-bility and will result in reasonable further progresstoward the discharge elimination goal. The 1977amendments provide that such a modification is man-datory if the owner also demonstrates that it will notinterfere with attainment of a water quality standard,and it will not result in additional requirements on anyother point source.

Appendix BFormulas for Determining Regional Leasing- Levelsa

Formulas:Basic formula:

1.

2.

3.

4.

5.

Annual shortfall * (Average mine life * (percent Federal)) = Leasing level

Production Method:Production forecasts – Productive capacity = Annual shortfall

Inventory Method:Inventory factor * Production forecasts = Inventory requirementInventory requirement – Productive capacity = Annual shortfall

Contracting Rate Method:Productive capacity – Contracted coal = Residual capac i ty

Annual new contracting * Years between sales = New contractingAverage new contract * (Inventory factor * Competition factor) = Minimum inventoryMinimum inventory + New contracting = Full inventoryFull inventory – Residual capacity = Annual shortfall

Expressions of Interest Method:Expressions of interest – Nonthorough expressions = Thorough expressionsThorough expressions – Duplicate expressions = Leasing level

Minimum Leasing Method:Maintenance tracts + Bypass tracts + Expansion tonnage + New production opportunities = Leasing level

Example of use of formulas:Variable value:Target year (TY)Productive capacity for TY

Production forecasts for TY

Coal under contract for TYAverage mine lifePercent Federal ownershipYears between Federal

lease salesAnnual production from

new contracting

Inventory factor

Competition factorAnnual production from

average new contractExpressions of interestNonthorough expressionsDuplicate expressionsMaintenance tractsBypass tracts

= 1 9 9 5= 50 MTYb

= 49 MTY(low)= 55 MTY (medium)= 64 MTY (high)= 46 MTY= 30 years= 750/0

= 4 years

= 2.0 MTY (low)= 2.5 MTY (medium)= 3.1 MTY (high)= 0.5 ( l o w )= 2 (medium)= 3 (high)

= 5 bidders

= 1.1 MTY= 1.7 BTC

= 0.5 BT= 0.3 BT= 100 MT= O MT

146

Appendix B—Formulas for Determining Regional Leasing Levels • 147

Expansion tractsNew production

opportunity

1. (49–50) * (30(55–50) * (30(64–50) * (30

= 200 M T

= 100 MT

* 0.75) = O MT* 0.75) = 112.5 MT* 0.75) = 315.0 MT

2. ((2 * 49)–50) * (30 * 0.75) = 1,080 MT((2 * 55)–50) * (30 * 0.75) = 1,350 MT((2 * 64)–50) * (30 * 0.75) = 1,755 MT

3. [((1.1 * 2 * 5) + (2.0 * 4))–(50–46)] * (30 * 0.75) = 337.5 MT[((1.1 * 2 * 5) + (2.5 * 4))–(50–46)] * (30 * 0.75) = 382.5 MT[((1.1 * 2 * 5) + (3.1 * 4))–(50–46)] * (30 * 0,75) = 436.5 MT

4. (1 .7–0.5)–0.3 = 900 MT

5.100 + 200 = 300 MT100 + 200 + 100 = 400 MT

Summary of Results of Formulas (million tons recoverable resource)

Method Low Medium HighProduction . . . . . . . . . . . . . . . . . . . . . . 0 112.5 315.0Inventory . . . . . . . . . . . . . . . . . . . . . . . 1,080.0 1,350.0 1,755.0Contracting rate . . . . . . . . . . . . . . . . . 337.5 382.5 436.5Expressions of interest . . . . . . . . . . . . . 900.0 —Minimum leasing. . . . . . . . . . . . . . . . . 300.0 — 400.0DOI initial leasing level range:

From these formulas . . . . . . . . . . . . 300.0 — 1,700.0From pre-1982 method . . . . . . . . . . 0.0 — 650.0

asource: 6UreaU of Land Management, U.S. Department of the Interior,Regiona/ Leasing Leve/s, preliminary draft, Nov. 22, 1982.

bJ’M~f’ means million tons per year.

c“BT” means billion tons.

Appendix C

Acronyms and Glossary

Acronyms

ACEC — area of critical environmental concernAVF — alluvial valley floorBIA – Bureau of Indian AffairsBLM – Bureau of Land ManagementBOM – Bureau of MinesBtu – British thermal unitCEQ –Council on Environmental QualityCERT –Council of Energy Resource TribesCFR – Code of Federal RegulationsDOE – Department of EnergyDOI – Department of the InteriorEA — environmental assessmentEIS — environmental impact statementEMARS – Energy Minerals Activity Recommenda-

tion SystemF&WS – Fish and Wildlife ServiceFCLAA – Federal Coal Leasing Amendments Act

of 1976FLPMA — Federal Land Policy and Management

Act of 1976LMU – logical mining unitMFP – Management Framework PlanMLTF –Mineral Lease Task Force (Utah)MMS — Minerals Management ServiceNEPA – National Environmental Policy Act of

1969NO x – nitrogen oxideNRDC – Natural Resources Defense CouncilOSM – Office of Surface MiningOTA – Office of Technology AssessmentPRLA – Preference Right Lease ApplicationRCT – Regional Coal TeamRMP – Resource Management PlanSID – Secretarial Issue DocumentSMCRA – Surface Mining Control and

Reclamation Act of 1977so2 — sulfur dioxideSSA — site specific analysisTSP — total suspended particulateusc – United States CodeUSFS – United States Forest ServiceUSGS – United States Geological SurveyWSA — wilderness study area

Glossary

Activity planning: Planning for the development oruse of specific resources on public domain lands(e.g., for a coal lease sale).

Alluvial valley floor: Those stream valleys locatedwest of the 100th Meridian which: 1 ) are underlainby unconsolidated gravel, sand, silt, and clay; 2)have a stream flowing through them; 3) have agenerally flat valley floor topographic surface; and4) are agriculturally important. The relative impor-tance of these valleys is a function of the water sup-plies available in the specific valley area. The agri-cultural activities generally include irrigated orsubirrigated hay lands, developed pasture lands,critically important grazing areas, or lands thatcould be developed for any of these purposes.

Areas of critical environmental concern: Areas withinthe public lands where special management atten-tion is required (when such areas are developedor used, or where no development is required) toprotect, and prevent irreparable damage to, impor-tant historic, cultural, or scenic values, fish andwildlife resources or other natural systems or proc-esses, or to protect life and safety from naturalhazards.

Aquifer: A subsurface zone that yields economicallyimportant amounts of water to wells; a water-bear-ing stratum or permeable rock, sand, or gravel.

British thermal unit: The quantity of heat energy re-quired to raise the temperature of 1 lb of water 1“Fat or near its point of maximum density.

Bypass coal: An isolated coal deposit that cannot, forthe foreseeable future, be mined economically andin an environmentally sound manner either sep-arately or as part of any mining operation otherthan that of the applicant for either an emergencylease or a lease modification.

Certificate of bidding rights: A right granted by theSecretary of the Interior to apply the fair marketvalue of a relinquished coal or other mineral lease,or right to a preference right lease, as a creditagainst the bonus bid or bids on a competitive leaseacquired at a lease sale, or as a credit against thepayment required for a coal lease modification.

Continuous operation: Requirement that a Federallease must produce at least an annual average ofone percent of logical mining unit reserves afterdiligent development has been achieved.

Development potential: The prospects for a lease orlease block being developed and mined within thenext decade, taking into consideration the reserves,mining conditions, geographic location, status ofadjacent properties, surface resource values, envi-ronmental impacts, potential markets, transporta-tion availability, and community infrastructure.

148

Appendix C—Acronyms and Glossary ● 149

Diligent development: Actual production of commer-cial quantities of coal from a Federal lease or thelogical mining unit of which the lease is a part with-in 10 years after the lease is issued.

Land use planning: Development of a multiple re-source use management strategy for the adminis-tration of public lands through identification of allpotential land and resource uses and of opportuni-ties for the development of particular resourcesbased on their relative values.

Management Framework Plan: A land use plan pre-pared prior to passage of the Federal Land Policyand Management Act of 1976.

Mine plan: A detailed description of the operator’sproposed method, rate, and sequence of mining,environmental protection measures, and reclama-tion strategies for a coal mine with Federal leasessubmitted to the Office of Surface Mining or Stateregulatory authority pursuant to the Surface MiningControl and Reclamation Act of 1977.

Multiple use: Management of the public lands andtheir various resource values so that they are uti-lized in the combination that will best meet thepresent and future needs of the American people;making the most judicious use of the land for someor all of these resources or related services overareas large enough to provide sufficient latitude forperiodic adjustments in use to conform to changingneeds and conditions; the use of some land for lessthan all of the resources; a combination of balancedand diverse resource uses that takes into account

the long-term needs of future generations for re-newable and nonrenewable resources, including,but not limited to, recreation, range, timber, min-erals, watershed, wildlife and fish, and naturalscenic, scientific and historical values; and harmo-nious and coordinated management of the variousresources without permanent impairment of theproductivity of the land and the quality of the envi-ronment, with consideration being given to therelative values of the resources and not necessarilyto the combination of uses that will give the great-est economic return or the greatest unit output.

Preference right lease application: An application fora noncompetitive coal lease issued to the holderof a prospecting permit who discovers coal in com-mercial quantities on the land for which the permitwas issued.

Resource Management Plan: A land use plan asprescribed by the Federal Land Policy and Manage-ment Act of 1976.

Split estate: Land in which the ownership of the sur-face is held by persons, including governmentalbodies, other than the Federal Government, andthe ownership of underlying coal is, in whole orin part, reserved to the Federal Government.

Threshold levels: Specific defined levels of resourceuse, production or development which are estab-lished as maximum or minimum constraints in theresource management plan. Threshold levels areusually established to ensure that the plan does notpermit an unacceptable level of cumulative impacts.

Index

Burns Creek tract, 79, 80

Colorado, 73, 93Commission on Fair Market Value, 63Congress:

House Appropriations Committee, 4, 11Senate Appropriations Committee, 4, 11

Council of Energy Resource Tribes, 117Council on Environmental Quality (CEQ), 4, 78, 79, 93

Department of Energy (DOE), 59, 62Department of the Interior, 3, 5, 11, 13, 20, 22, 33, 34,

40, 44, 47, 49, 60, 61, 62, 63, 64, 71, 81, 91,104, 117

Bureau of Land Management (BLM), 3, 5, 11, 13, 15,20, 22, 25, 26, 27, 33, 43, 44, 55, 56, 57, 58, 59,60, 66, 69, 70, 73, 77, 78, 90, 93, 115

Energy Minerals Activity Recommendation System(EMARS), 3

Federal Coal Leasing Program, review of, 20Fish and Wildlife Service, 84, 93, 114Geological Survey, 67, 72, 88National park Service, 93Office of Surface Mining 45, 57, 84

Dunn Center tract, 64, 65, 84

Electric Power Research Institute, 26environmental impact statement (EIS), 3, 4, 20, 27, 49,

50, 60, 66, 74, 75, 77, 78, 79, 82, 88, 89, 91, 97,106

Federal Coal Management Program, 33-51coal leasing program, 33-46

activity planning and lease sales, 44-45Iand use planning, 34-44

coal development screen, 40lands for mining, acceptability of, 40

20 unsuitability criteria, 41multiple resource use screen, 42surface owner preference screen, 42

post-leasing, 45environmental protection, 50preference right lease applications, 46-50

findings and policy options:adequacy of Federal coal leasing program, 11adequacy of pre-sale data and analyses, 13characteristics that are incompatible with coal mining,

16cumulative environmental effects, 19mitigating environmental concerns, 20

comprehensive area planning, 25data base improvement, 26decentralize decisionmaking authority, 22guidelines and standards for assessing data base, 27policies and procedures for environmental lease ex-

changes, 28policies and procedures for leasing on split estate

and checkerboard lands, 28

public participation, 24reduce lease rates, 22summary of policy goals and options, 23uniform procedures for environmental evaluation of

PRLAs, 28Forest Land and Resource Management Plans, 13

GeneraI Accounting Office, 44

legislation:Antiquities Act of 1906, 50Archaeological and Historical Preservation Act of

1974, 50Archaeological Salvage Act, 50Bald Eagle Protection Act of 1969, 50Clean Air Act, 3, 5, 33, 50, 90Clean Water Act, 3, 5, 33, 50Endangered Species Act, 40, 50Federal Coal Leasing Amendments Act of 1976, 3, 12,

33, 41, 43, 46, 70, 93, 110, 114, 117Federal Land Policy Management Act of 1976, 3, 12,

33, 41, 43, 70, 93, 114, 117Fish and Wildlife Coordination Act of 1934, 50Historic Preservation Act of 1966, 50Interior and Related Agencies Appropriations Bill,

1984, 4Migratory Bird Treaty Act of 1918, 51Mineral Leasing Act of 1920, 3, 46, 47Multiple Use-Sustained Yield Act of 1960, 51National Environmental Policy Act, 3, 4, 5, 20, 33, 43,

50, 78, 93, 110, 114National Forest Management Act, 13, 75Noise Control Act of 1972, 51Resource Conservation and Recovery Act, 51Safe Drinking Water Act of 1977, 51Soil and Water Resources Conservation Act of 1977,

51Surface Mining Control and Reclamation Act of 1977,

4, 18, 53, 41, 45, 50, 69, 81, 87, 91, 93, 97Wild and Scenic Rivers Act, 51Wilderness Act of 1964, 51

logical mining units, (LMUs), 3

Manti-LaSal National Forest, 75, 76Management Framework Plans (MFPs), 25, 56, 75, 94,

96Minerals Management Service, 67Montana, 77, 124

National Coal Association, 62National Coal Model, 61, 62National Continental Divide Scenic Trail, 82National Register, 42, 97National Resources Defense Council, 91National Resources Defense Council v. Berklund, 47Natural Resources Defense Council v. Burford, 68National Wildlife Federation v. Burford, 68New Mexico, 90, 96, 98

153


North Dakota, 77, 124Northern Cheyenne Tribe v. Watt, 68

planning and environmental assessment, 55-135coal exchanges, 130135

major issues, 131types of, 131

data and analysis, 68-80adequacy of, 74

land use planning, 74policy implications, 78sources of data, 69tiered process, 68

deferral of decisionmaking, 105environmental implications of leasing rates, 67-68environmental issues of Indian Tribes, 117-124

Fort Union Coal Region, 119Green River-Hams Fork Region, 122Powder River Coal Region, 120San Juan River Coal Region, 122

lease sale schedules, 64-67leasing levels, 60

contracting rate, 62expressions of interest, 62high leasing levels, effects of, 63inventory method, 62methodology, 61minimum leasing, 63past sales, 63process, 60production method, 62

leasing on split estate and checkerboard lands,124-129

leasing program, 55-59administration, 56implementation, 58public participation, 59stability and predictability, 55

economic risk, 57environmental risk, 57

mitigation requirements, 91-105origins of, 93

activity planning, 96land use planning, 94mine plan review, 97Secretarial issue Document, 97

reasons for and types of, 97

detailing techniques, 101raising red flags, 100resolving conflicts, 100resolving data inadequacies, 98

role of, 93public participation, 114-117regional coal teams, 110114

actions by, 112forum for public participation, 113role of BLM, 113task groups, 112

regional leasing rates, 59-68unsuitability criteria, 81-91

application, 81expansion, 90

preference right lease applications (PRLAs), 3, 28, 30,41, 46, 47, 49, 50, 62, 63, 74

Regional Coal Teams, 22, 24, 25, 26, 28, 45, 55, 56, 60,62, 63, 64, 69, 79, 89, 110, 112-114

resource management plan (RMP), 43, 66, 70, 75

Secretarial Issue Document (SID), 64, 66, 97Sierra Club v. Kleppe, 3

Tongue River Unsuitability Petition, 19

U.S. Air Force:Secretary of, 19, 75

U.S. Forest Service, 16, 26, 57, 73, 75, 84, 114Surface, Environment, and Mining (SEAM), 74

U.S. Supreme Court, 3Utah Mineral Lease Task Force, 113

Western coal regions:Fort Union, 5, 6, 17, 18, 24, 28, 64, 66, 77, 79, 84,

86, 89, 93, 97, 101, 104, 108, 119, 124, 127Green River-Hams Fork, 5, 6, 17, 18, 20, 66, 87, 89,

92, 98, 100, 101, 109, 122, 124, 127Powder River, 5, 6, 17, 18, 19, 20, 59, 64, 66, 74, 77,

83, 95, 97, 98, 108, 120, 124, 127San Juan River, 5, 6, 15, 17, 18, 19, 20, 25, 30, 46,

49, 66, 74, 75, 82, 90, 93, 96, 98, 101, 106, 108,122, 124

Uinta-Southwestern Utah, 5, 6, 16, 17, 18, 20, 64, 66,75, 84, 98, 99, 101, 102, 106, 127

Wyoming, 77, 87, 124

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