Environmental Protection in the Federal

Coal 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 Documents

U.S. Government Printing Office, Washington, D.C. 20402
Foreword

This report responds to a request by the House and Senate Committees on Appropriations, as mandated in the Conference Committee Report on the Department

of the Interior and Related Agencies Appropriations Bill for fiscal year 1984, to assess

the ability of the Federal coal leasing program to ensure the development of leases

in an environmentally compatible manner. This study builds on earlier OTA reports,

An Assessment of the Development and Production Potential of Federal Coal Leases

and The Direct Use of Coal, and will contribute to future work on surface mine

reclamation.

The assessment addresses the recent controversy surrounding the implementation

of the environmental protection aspects of the Federal coal leasing program. It discusses

the adequacy of the regulatory provisions of the program to ensure the environmental

compatibility of Federal lease tracts, including the 1982 changes in program policy and

regulations. The Bureau of Land Management’s implementation of the leasing program

legislation and regulations is evaluated, with emphasis on the adequacy of data and

analyses to support land use planning and environmental impact assessment. The report

assesses the characteristics of tracts proposed for leasing since 1979, to determine

whether any of those tracts will be particularly difficult to develop under current environmental laws and regulations. It also assesses the potential for cumulative environmental impacts upon the development of several lease tracts in one area. Finally, the

report presents policy options Congress could consider that seek to restore predictability

and stability to the leasing program.

In the course of this assessment, OTA drew on the expertise of many individuals

and organizations. In particular, we are grateful for the generous assistance of the

workshop participants and the project’s contractors, who prepared background analyses.

We would also like to acknowledge the efforts of the numerous reviewers who gave

their time to ensure the accuracy and comprehensiveness of this report. Finally, we

are especially grateful to the Bureau of Land Management and its field personnel, without

whose cheerful and candid cooperation this assessment would not have been possible.

Director

iii
Coal Leasing Workshop Participants

Michael Rieber, Chairman

University of Arizona

David Alberswerth Leslie Lehmann

National Wildlife Federation Northern Energy Resource Co.

Daniel P. Baker Lorin Nielsen

Consolidation Coal Co. Utah Department of Natural Resources

Paige B. Beville Charles Rech

Anaconda Minerals Co. Meridian Land & Minerals Co.

Carol Condie

New Mexico Archaeological Council

Maggie Fox

Sierra Club Southwest

AlIan Garnaas

Alexandria, Va.

Sheridan Glen

Arch Minerals Co.

Robert Jackson

Sunbelt Mining Co., Inc.

Dewitt John

Colorado Department of Natural Resources

August Keller

North Dakota Energy Development

Impact Office

Charles Roybal

New Mexico Energy and Minerals

Department

Mel Schilling

Office of Surface Mining

Christopher Seglem

Colorado Westmoreland, Inc.

Pat Sweeney

Western Organization of Resource Councils

Tom Walker

Bureau of Land Management

Geoff Webb

Friends of the Earth

Mark Welsh

Colorado Open Space Council

Laura King Warren White

Natural Resources Defense Council Wyoming State Planning Coordinator

NOTE: The workshop participants provided advice and comment throughout the assessment, but the members do not

necessarily approve, disapprove, or endorse this report, for which OTA assumes full responsibility.

iv
OTA Project Staff

Lionel S. Johns, Assistant Director, OTA

Energy, 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 the

background reports:

Mark Adkins, Getty Oil Co.

Tom Altmeyer, Mining and Reclamation Council

of America

Don Ami, The Hopi Tribe

Galen Andersen, The Nokota Co.

Bob Armstrong, Bureau of Land Management

Carol Baca, New Mexico Energy and Minerals

Department

Hugh Baker, Three Affiliated Tribes, Fort Berthold

Reservation

Dave Baldwin, Bureau of Indian Affairs

Fred Banta, Colorado Mined Land Reclamation

Division

Dez Barker, Utah Coal Operators’ Association

Eddie Bateson, Bureau of Land Management

Gary Beach, Wyoming Department of

Environmental Quality

Paul Bederman, New Mexico Energy and

Minerals Department

Robert Bierer, Bureau of Land Management

James Binando, Bureau of Land Management

John C. Bokich, Santa Fe Coal Corp.

Ron Bolander, Bureau of Land Management

Pat Boles, Wyoming Department of

Environmental Quality

Dave Bray, Bureau of Land Management

Russ Brown, Northern Plains Resource Council

H. L. Bryson, Shell Mining Co.

Robert Burford, Bureau of Land Management

George Byers, Anaconda Minerals Co.

Jim Collins, Bureau of Land Management

Roger Collins, U.S. Fish and Wildlife Service

Herb Conley, Bureau of Land Management

Greg Conrad, American Mining Congress

David M. Cover, Gulf Mineral Resources

Jason Cuch, Uintah-Ouray Tribe

Chris Cull, Western Energy Co.

William S. Curtiss, Sierra Club Legal Defense

Fund

Edwin G. Dahle, Northern Cheyenne Tribe

Gene Daniel, Bureau of Land Management

William Darmitzel, New Mexico Mining

Association

Gene Day, Bureau of Land Management

Jeffrey H. Desautels, Anaconda Minerals Co.

Roger Dewey, Rocky Mountain Energy Co.

Chuck Dietrich, American Mining Congress

Al Dole, U.S. Fish and Wildlife Service

David Doyle, National Wildlife Federation

John Dwyer, North Dakota Lignite Council

Jim Edwards, Bureau of Land Management

Steve Elliot, Billings, Mont.

Lloyd Emmons, Bureau of Land Management

Ed Englerth, North Dakota Public Service

Commission

Alan Falenski, Consolidation Coal Co.

Rodney Ford, Consolidation Coal Co.

William Frey, Bureau of Land Management

Tim Gallagher, State of Montana

Tom Galloway, Galloway & Greenberg

Merle L. Garcia, Pueblo of Acoma

John M. Garr, Coastal States Energy Co.

Carl Gawell, National Wildlife Federation

Bob Giovanini, Bureau of Land Management

Greg Goodenow, Bureau of Land Management

Ed Grandis, Environmental Policy Institute

Kelly Green, National Wildlife Federation

Michael R. Grende, Western Energy Co.

Steven Griles, Department of the Interior

Jim Gruber, Bureau of Land Management

John R. Hardin, Anaconda Minerals Co.

J. Brett Harvey, Kaiser Steel Corp.

Garth Heaton, U.S. Forest Service

Tom Hoffman, Consolidation Coal. Co.

Rick Holbrook, Consolidation Coal CO.

Norman Hollow, Fort Peck Assiniboine and Sioux

Tribes

Jhon Huff, Powder River Basin Resource Council

Liz Hummer, Bureau of Land Management

Dennis Hunter, Utah International Inc.

Rick Inglis, Bureau of Land Management

Russel Jentgen, Bureau of Land Management

Carolyn Johnson, Natural Resources Defense

Council

Theresa Keaveny, Dakota Resource Council

Ellis Knows Gun, Crow Tribe of Indians

Rick Lawton, Wyoming Department of

Environmental Quality

Robert Lawton, Bureau of Land Management

Don Leonard, Western Regional Council

R. E. Lommer, North Dakota Lands Department

Mimi Lopez, Committee on Coal

Jim Luptak, North Dakota Public Service

Commission

W. W. Lyons, Northern Energy Resource Co.

Margie MacDonald, Northern Plains Resource

Council

James Maddy, Western Governors Association

Jack L. Mahaffey, Shell Mining Co.

Larry Marks, Bureau of Land Management

Dan Martin, Bureau of Land Management

Mike McClellan, Bureau of Land Management

Carol McDonald, Bureau of Land Management

Stan McKee, Bureau of Land Management

Don 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 and

Information Center

James Monroe, Bureau of Land Management

Don Moseley, Utah International Inc.

Diane Nielson, Utah Division of Oil, Gas and

Mining

Max Nielson, Bureau of Land Management

Peter Neilson, The Coteau Properties Co.

Joe O’Connor, U.S. Geological Survey

Andrew Palmer, Environmental Policy Institute

James Paraskeva, Utah Department of Agriculture

Joe Patti, Bureau of Land Management

Vincente Pedro, Pueblo of Laguna

Dean Peterson, The North American Coal Corp.

Mike Poling, American Mining Congress

Dave Preston, Rocky Mountain Energy Co.

Kent Redding, Consolidation Coal Co.

Warner K. Reeser, Jr., Council of Energy

Resource Tribes

Leo Reinbold, North Dakota Public Service

Commission

Walt Rewinsky, Bureau of Land Management

Kannon Richards, Bureau of Land Management

Leonard Robbins, The Navajo Tribe

William J. Robinson, Western Energy Co.

Allen Rowland, Northern Cheyenne Tribe

Duffy Ruimerman, New Mexico Energy and

Minerals Department

Rich Schils, Three Affiliated Tribes, Fort Berthold

preservation

James Shaw, Rocky Mountain Energy Co.

Karen Sheldon, Sierra Club Legal Defense Fund

David Shelton, Colorado Mined Land

Reclamation Division

Lt. Col. William Sherman, U.S. Air Force

Phil Shimer, Western Governors Association

Jerome H. Simonds, Washington, D.C.

Marc Slonim, Ziontz, Pirtle, Morisset, Ernstoff &

Chestnut

John Smillie, Northern Plains Resource Council

A. L. Smith, Santa Fe Coal Corp.

Ken Smith, Bureau of Land Management

Reed L. Smith, Bureau of Land Management

Ronald J. Solimon, Pueblo of Laguna

Drex Spaulding, Getty Oil Co.

Doug Stern, Bureau of Land Management

Donald Stewart, Crow Tribe of Indians

Bruce Stockton, New Mexico Energy and

Minerals Department

William Sullivan, Northern Cheyenne Tribe

Margie Taylor, Meridian Land & Minerals Co.

Steve Tessman, Wyoming Department of

Environmental Quality

John Tilton, Chaco Energy Co.

J. S. Tixier, U.S. Forest Service

Celia Tsabetsaye, Zuni Pueblo

Harold Tso, The Navajo Tribe

Major Michael van Zandt, U.S. Air Force

Thurman Velarde, Jicarilla Apache

Laurie Walsh, Santa Fe Industries

Edward W. Ware, Ill, Rocky Mountain Energy

co.

Bruce H. Watzman, National Coal Association

Robert Webb, Bureau of Land Management

Martin White, Western Regional Council

J. W. Whitney, Bureau of Land Management

Don Whyde, Bureau of Land Management

Jeff Williams, Utah Energy Office

Kenneth Williams, Western Energy Co.

Chuck Willkie, Bureau of Land Management

Richard Wilson, Bureau of Land Management

Phillip Wolf, AMOCO Minerals Co.

D. Floyd Wopsock, Ute Indian Tribe

Brooks Yeager, Sierra Club

Peterson Zah, The Navajo Tribe

Richard Zander, Bureau of Land Management

Mary Zuschlag, Bureau of Land Management

vi
Contents

Chapter Page

Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix

1. 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 . . . . . . . . . . . . . . . . . . . . . . . . . . .

3

7

11

33

33

34

44

45

46

50

51

55

55

55

56

58

59

59

60

64

67

68

68

69

74

78

81

81

88

90

91

93

93

97

Summary. .,... . . . . . . . . . . .1....... ; . . . . . . . . . . . . . . .....................104

Deferral of Decisionmaking . . . . . . . . . . . . . . . . . . . . . . .........................105

Regional Coal Teams . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..........110

Actions by Rats . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ................112

RCT Task Groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........112

Role of BLM Within the RCT . . . . . . . . . . . . . . . . . . . . . .......................113

The RCT as a Forum for Public Participation. . . . . . . . . . . . . . . . . . . . . . . . ........113

Public Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............114

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

Environmental lssues of lndian Tribes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........117

General Environmental Issues and Impacts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...118

Tribe-Specific Environmental Issues/Impacts. . . . .......................,.....119

Leasing on Split Estate and Checkerboard Lands . .............................124

Coal Exchanges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........130

Types of Exchanges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .....................131

Major Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

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

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

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

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

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

Tables

Table No. Page

I. Lease Sale Schedules.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

2. Environmental Resources of Coal-Producing Regions . . . . . . . . . . . . . . . . . . . . . . . . . . 17

3. Archaeological and Cultural Resources of the Western Coal Regions . . . . . . . . . . . . . 18

4. Summary of Policy Goals and Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

5.1979 Lease Sale Target Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

6. Lease Sale Schedules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

7. BLM Coal Leasing Workload Projections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

8. The Unsuitability Criteria. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

9. Areas Screened Out During Land Use Planning for Round I in Western

Powder River Basin Due to Unsuitability Criteria or Multiple-Use Tradeoffs . . . . . . . 82

10. Fort Union Region Known Cultural Sites by Type.... . . . . . . . . . . . . . . . . . . . . . . . . . 86

11. RCT Rankings for Lay Tract Rounds I and II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

12. Potential Reclamation Problems, Green River-Hams Fork Region, Round II . . . . . . . . 92

13. Number of Tracts for Which Decisions on Unsuitability Criteria Were Deferred

Past Land Use Planning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............107

14. Summary of Tract Rankings by Regional Coal Tema, Green River-Hams Fork,

Round I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .111

15. Ownership of Surface and Coal Resources in Five Western

Coal Management Regions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ................128

16. Summary of Recent Exchange Proposals : . . . . . . . . . . . . . . .....................132

Figures

Figure No. Page

1. Five Western Coal Regions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

2. Tiered Structure Concept of Data and Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

3. Approximate Overlap Between Coal Leasing Regions and National Forests and

Other Special Federal Management Areas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

4. Coal Tracts in Yampa River Basin, Showing Potential for Cumulative

Hydrological Impacts from Multiple Mine Development . . . . . . . . . . . . . . . . . . . . . . . 21

5. Example of Split Estate With Minority Federal Ownership . . . . . . . . . . . . . . . . . . . . . . 29

6. 1979 Coal Leasing Program. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

7. Current Cost Leasing Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

8. Relation Between Wilderness Study Areas and Coal Tracts in the

Northern Portion of the San Juan River Region . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

9. Dunn Center S.E. Tract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

10. 1979 Land Use Planning Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

11. Current Land Use Planning Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

12. Coal Tracts in the Manti-LaSal National Forest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

13. Burns Creek Tract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

14. Example of Application of Unsuitability Criteria #2 and #3 in

Western Powder River Basin Area . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

15. Relation Between Coal Tracts in San Juan Region and National Continental

Divide Scenic Trail and Study Corridor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

16. Stylized Diagram of an Alluvial Valley Floor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

17. Potential Buffer Zones Resulting from Application of the Wildlife

Unsuitability Criteria, Western Powder River Basin . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

18. Sketch Map Showing Approximate Locations of Indian Reservations

Relative to Coal Leasing Regions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...........118

19. Example of Split Estate with Predominantly Private Surface and Federal Coal .. ....125

20. Example of Checkerboard Ownership Pattern of Coal Resources . ...............126

Vlll
Overview

Following a decade of public debate, consensus was reached in 1979 on a Federal coal

leasing program considered adequate to ensure

protection of the environment upon development of leased tracts. The basic framework of

that program-the legislative mandates and the

concept of a tiered structure of land use planning, activity planning, and mine permitting—

are still workable and capable of ensuring environmental protection. However, 1982 shifts in

the policy underlying the leasing program-as

evidenced by changes in the implementing regulations—have shaken that consensus. While

OTA did not discover any “fatal flaws” that

would absolutely preclude mining on recently

leased tracts, we conclude that the recent policy changes very likely have raised the cost and

difficulty of ensuring environmental compatibility, and have increased the risk of adverse environmental impacts should those tracts be developed. As a consequence, public confidence in

the environmental soundness of the Federal

leasing program has decreased.

The planning processes during which tracts

are continuously evaluated for their acceptability for leasing have become too unpredictable and unsystematic to assure compliance

with the environmental mandate. There are two

basic aspects of the recent policy and program

changes that contributed to this unpredictability:

First, the high leasing rates-the large quantity of coal to be offered for lease combined with

inflexible lease sale schedules-of the past 3

years taxed the resources of the Bureau of Land

Management (BLM) beyond the point where

they could adequately assess the acceptability

of the tracts proposed to be offered. Even without compressed planning and analysis schedules,

BLM’s assessment capability already was taxed

by field personnel rotations and turnovers, which

resulted in a loss of “institutional memory” and

contributed to inadequate data and analyses.

Consequently, decisions about acceptability have

been deferred past the land use and early activity planning stages, where they are scheduled to

be made, to the Secretarial decision or mine permitting stage. Tracts have been carried forward

to the lease offering without adequate data and

analyses to make a fully informed decision about

their environmental compatibility. Decision deferrals also have led to overuse of lease stipulations (conditions placed on a lease) to address

uncertainties about impact mitigation requirements. In some instances, tracts were removed

prior to sale by mechanisms that were unrelated

to the leasing process. Further, the quality and

quantity of data and analyses vary widely among

regions, among tracts within a region, and between sales within a region.

Second, changes in program regulations in

1982 reduced the effectiveness of the environmental protection measures that contributed to

the consensus on the 1979 Federal coal leasing

program. The 1982 regulations no longer

require-prior to the environmental impact

statement-the use of a “threshold” concept for

determining whether potential cumulative impacts are severe enough to warrant dropping

tracts from further consideration for leasing. In

addition, most regulatory standards for the adequacy of data and analyses were eliminated, adding to the uncertainty about the acceptability of

proposed tracts. Preparation of Resource Management Plans (required under the Federal Land

Policy and Management Act of 1976 andthe Federal Coal Leasing Amendments Act of 1976) was

given lower priority when the 1984 deadline for

their completion was eliminated, allowing indefinite reliance on existing land use plans prepared

under earlier legislative mandates and updated

or amended to meet the 1976 requirements. The

latter do not constitute the sort of “fresh-start”

comprehensive land use planning envisioned in

the current statutory framework. Their continued

use increases the risk of adverse environmental

impacts occurring if a leased tract is developed,

and adds to the perception that BLM data and

analyses have been inadequate to support planning and leasing decisions.

Program Improvements

An environmentally (and ecnomically) sound

leasing program is an important part of the Nation’s energy future and of public land manage-
ment policy. Unless reasonable public expectations about “soundness” are satisfied, however,

an effective and predictable Federal coal leasing program is not likely. The recent actions

taken by the Department of the Interior to review

the leasing program are a positive step toward

decreasing environmental risk and regaining the

public consensus about the soundness of the program, and priority should be given to their rapid

completion and implementation. However, there

are a number of other measures identified by

OTA that also can help to ensure environmental

protection and compliance with the existing statutory mandates, reduce the environmental risk

of leasing decisions, maintain a predictable and

stable leasing process, and restore public confidence in the environmental soundness of the

leasing program.

1.

2.

3.

4.

x

Lower but steady leasing rates would make

the land area that has to be evaluated for

coal leasing in a given period of time more

manageable, reduce the number of tracts

to be offered at one time and therefore the

probability that environmentally sensitive

tracts would be leased, and allow all participants in leasing, including the industry

and affected communities, to plan more effectively for leasing activities.

Decentralizing decisionmaking authority

on tracts and tonnages to be offered and

on what schedule to the Regional Coal

Team or BLM State Office level, and reorganizing leasing regions to match State

boundaries, would improve the sensitivity

of leasing decisions to State and local needs

and priorities.

Improving the effectiveness of public participation through efforts to increase public

awareness and understanding of, and involvement in, the planning and leasing

process also could improve the environmental soundness of, and public confidence in, the leasing program. In this context, it is very important to accommodate

the environmental and socioeconomic

concerns of special interest groups such

as Indian Tribes, States and communities,

and farmers and ranchers when carrying

out lease planning activities and eventual

mine development.

Completion of adequate Resource Management Plans by BLM (and the Forest

5.

6.

7.

Service) would ensure that comprehensive

areal land use planning is completed before

activity planning for a lease sale and is adequate to support informed decisions on

tract acceptability for leasing. It also would

help ensure that preliminary cumulative impact assessments are incorporated in general land use planning decisions. In this

context, it is important that BLM planning

be coordinated more closely with that of

the Forest Service and other Federal agencies, and with State and local plans, to ensure that coal leasing does not undermine

the goals of other programs.

The data and analyses that support planning and leasing decisions also must be

improved before environmental risk can be

reduced and public confidence restored.

Compilation of a comprehensive data base,

evaluation of the amount of data and analysis needed at each decision stage, and expansion of ways to use data and analyses

from industry and other participants in leasing are some ways such an improvement

could occur without significant increases

in BLM resources. Continued research on

mitigation and reclamation techniques and

on the use of the threshold concept for cumulative impact analysis also would make

planning more effective. In addition, greater encouragement and incentives for experienced, qualified personnel to remain in

the field could significantly improve the

quality of data and analyses.

Guidelines and standards for the adequacy of pm-sale data and analyses at all

stages in the leasing process should be incorporated in the program regulations. Regulatory standards and guidelines would be

more predictable, would provide better

guidance to field personnel, and would be

more intelligible and accessible to other

participants in the leasing process than the

current guidelines, which reside primarily

in BLM internal memoranda.

A workable threshold concept for estimating cumulative impacts should be developed and included in the regulatory requirements for evaluating tract acceptability

during land-use planning and for tract ranking as well as in the environmental impact

statement.
8.

9.

10.

Policies and procedures for effectively

using lease exchanges to protect environmentally sensitive tracts should be established. It is necessary to clarify when such

exchanges, which can be a useful tool for

reducing environmental risk, can be undertaken and how.

Policies and procedures for leasing coal

lands where the Federal Government does

not own or manage the surface (split estate

lands) need to be evaluated to resolve the

uncertainty about the effectiveness of land

use and activity planning and pre-lease

environmental protections on such lands,

and to ensure that BLM procedures for split

estate areas balance public concerns and

surface owner interests adequately.

Procedures for environmental assessment

of Preference Right Lease Applications

need to be evaluated to determine if they

provide adequate environmental protection and to ensure that they are consistent

across regions.

It is important that the Department of the interior give priority to establishing an effective,

predictable, and stable leasing program that reduces the environmental (and economic) risk of

leasing decisions, and that allows the industry

to plan confidently for acquisition of coal

reserves, the environmental community to be

confident that leasing decisions will be in accord with legislative requirements, and, most

importantly, the owners of the resources—the

citizens of the United States—to be confident

that Federal lands are managed in the Nation’s

best interests.

xi
Chapter 1

Introduction

. 
Chapter 1

Introduction

Since 1920, the Department of the Interior

(DOI) has administered a leasing program that

allows the private sector to develop federally

owned coal resources. A lease grants to the lessee

the exclusive right to obtain a mining permit for,

and to mine coal on, the lease tract, subject to

the terms of the lease and permit and to applicable Federal and State laws. Historically, leases

have been issued by two methods: competitively,

to the highest bidder at a lease sale; and noncompetitively, to prospectors who discovered

commercial coal reserves and submitted an application for a “preference right” lease. About

half of all pre-1976 leases were issued under each

met hod.

In 1970, a Bureau of Land Management (BLM)

study of the Federal coal leasing program found

that, since 1955, the amount of coal under lease

had increased sharply while the amount of production from Federal Ieases had declined (3), In

1971, in response to this study, BLM imposed an

informal moratorium on the issuance of new

leases. The purpose of the moratorium, which

was made formal by Secretarial order in 1973,

was to provide time to reassess Federal coal leasing policies. Over the next several years, public

debate focused on issues related to the size, timing, and location of new leasing, and the relation of coal development to environmental resource values.

In 1973, environmental groups sued DOI over

the lack of a comprehensive regional environmental impact statement (E IS) for coal development in the Northern Great Plains. In 1976, the

Supreme Court held in Sierra Club v. Kleppe that,

once a Federal action is pending, the National

Environmental Policy Act may require a comprehensive impact statement covering several

related projects pending at the same time (6). I n

1975, while this suit was under appeal and while

Congress was considering changes to mineral

leasing legislation, DOI released the final programmatic EIS for a new coal leasing system—

the Energy Minerals Activity Recommendation

System (EMARS) (1). The EMARS was an integrated planning process for lease sales that involved annual nominations for coal leasing areas

by the industry and the public. The program was

opposed by the Western governors and by agricultural and environmental interest groups. In

1977, a Federal District Court found the programmatic EIS to be inadequate and enjoined DOI

from implementing EMARS (except for leases

needed to maintain production at an existing

mine or to meet existing contracts for coal) until

the requirements of the National Environmental

Policy Act were met (4). This decision applied to

both competitive leases and preference right

lease applications (PRLAs).

Public concern and debate about the structure

and management of the leasing program led to

congressional hearings and to approval of the

Federal Coal Leasing Amendments Act of 1976

(FCLAA; Public Law 94-377) and the Federal Land

Policy Management Act of 1976 (FLPMA; Public

Law 94-579). In FCLAA, Congress substantially

overhauled provisions of the Mineral Leasing Act

of 1920 as it applies to Federal coal lands, including repeal of the noncompetitive preference

right leasing system, provisions for the consolidation of leases into “logical mining units” (LMUs),

a 10-year limit for diligent development of leases,

a requirement for continuous operation on each

lease, and preparation of a comprehensive land

use plan before coal lease sales. FCLAA also requires lessee’s to ensure compliance with the

Clean Air and Water Acts.

FLPMA provides the statutory framework for

BLM’s overall land use planning. The act requires

BLM’s comprehensive land use planning program

to maintain an up-to-date inventory of public

lands and their resources, giving priority to the

designation and protection of areas of critical

environmental concern; project future uses of

public lands and resources; and provide for the

management of Federal lands in accordance with

the principles of multiple use and sustained yield,

considering the relative scarcity of the resource

values involved and the availability of alternative

means for realization of those values.

3
4 . Environmental Protection in the Federal Coal Leasing Program

These acts were followed a year later by the

Surface Mining Control and Reclamation Act of

1977 (SMCRA; Public Law 95-87), which requires

companies to submit a detailed mining and

reclamation plan and obtain a surface mining permit prior to opening a mine. SMCRA also established performance standards to assure that surface coal mining operations would be so

conducted as to mitigate damage to the mine site.

The final law which bears directly on environmental protection on Federal coal lands is the National Environmental Policy Act of 1969 (NEPA;

Public Law 91-190). NEPA requires all Federal

agencies to prepare a detailed statement on the

anticipated environmental effects of every

. . . major Federal action significantly affecting

the quality of the human environment. . . .“

Regulations to guide the implementation of NEPA

have been promulgated by the Council on Environmental Quality (CEQ). A large body of Federal case law has further defined NEPA requirements, particularly with regard to the scope

and content of EISs.

A comprehensive Federal coal leasing program

implementing these statutes was instituted in

1979, following the preparation of a programmatic EIS under NEPA (2). The first lease sales

under the new program were held in 1981 and

1982 (see table 1). In 1982 and 1983, DOI revised

the regulations implementing the program to reflect a departmental shift in policy toward making more coal available for lease, to eliminate

duplicative regulations, and to streamline the

leasing process in order to facilitate lease sales.

The changes in leasing policy and certain aspects

of the sales held since 1981 have become controversial. In particular, some groups have

charged that the Federal Government did not receive fair market value for the coal, and that the

environmental protection provisions of the leasing program had been softened and were not being implemented fully or would not be followed

when the coal is developed.

As a result of these concerns, in mid-l983, Congress mandated the establishment of an Advisory

Commission to review Fair Market Value for Federal Coal Leasing. In the fiscal year 1984 Interior

and Related Agencies Appropriations Bill, almost

all leasing was suspended until 90 days after completion of the Fair Market Value Commission Report (delivered on Feb. 17, 1984). The Conference Committee Report on that bill specified that:

. . . the managers will direct the Office of Technology Assessment to provide the Congress with

an assessment of the [Federal coal leasing] program’s ability to ensure the development of coal

leases in an environmentally compatible manner

(7),

Subsequently, OTA received a formal letter of

request from the Senate and House Appropriations Committees, and their Interior subcommittees, which indicated that the conferees believed

that OTA could provide an independent analysis of the leasing program in a timely manner because of OTA’s previous report on Federal coal

leasing–An Assessment of the Development and

Production Potential of Federal Coal Leases (5).

The letter of request repeated the language from

the Conference Committee Report, and went on

to say:

Table I.—Lease Sale Schedules

Leasing

target/level Offered sold

Sale Sale date (millions of tons)

Green River-Hams Forka

. . . . . . . . . . . . . . . . . . . 1/81 ;4/81 ;6/81 416 573 573

Round 1

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

Round I

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

Round I

Fort Unionb 

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

Round I

a

ln place reserves

bBld 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 public

lands suffer no unmitigated or undue environmental problems when recently leased Federal

coal tracts are developed. Are there characteristics of some of these tracts that would make development difficult under current environmental

laws and regulations? When all characteristics are

considered, is the cumulative environmental effect cause for concern? We are also interested in

the pre-sale planning being carried on by the Department of Interior. In your judgment, are data

and research about the tracts adequate to base

a decision on whether the tracts can be developed in an environmentally compatible manner?

If not, we would appreciate your suggestions.

OTA designed this study to respond to the five

basic questions posed in the letter of request. The

scope of the study was defined narrowly due to

the time schedule specified by the requesting

committees. “Environmental compatibility” was

interpreted by OTA to mean “compatible with

current environmental laws and regulations, ”

such as the Clean Air and Water Acts and NEPA.

(These laws are described briefly in app. A to this

report.) While this report evaluates the adequacy

of DOI and BLM programs and regulations in

light of the full range of statutory mandates, OTA

could not explicitly review the adequacy of all

the laws mentioned in appendix A. Thus, the report generally assumes that programs external to

DOI are adequate to protect environmental values on public lands.

Second, the study was restricted, for the most

part, to issues related to the physical environment. In most areas, impacts of coal mining on

the human environment, including social and

economic impacts, and surface owner consent,

are of equal concern. These issues are sufficiently

complex that it would not have been possible to

address them adequately in this report. However,

where these are the predominant concerns for

an interest group or region, they are noted (e.g.,

Indian Tribes).

Third, OTA limited its analysis to the coal leasing program, and did not consider the permitting process or other coal development issues

such as transportation, or the siting and operation of conversion facilities (e.g., powerplants,

synfuels plants). Fourth, OTA’s analysis was limited to the five major Western coal regions where

most of the environmental controversy has arisen.

These regions: Fort Union, Green River-Hams

Fork, Powder River, San Juan River, and UintaSouthwestern Utah, are shown in figure 1.

To assist in the formulation of OTA’s response

to the letter of request, background papers were

prepared that documented the leasing program

and its implementation to date in five Western

coal regions. In particular, those papers evaluated

BLM’s pre-sale planning and environmental

assessment and documented the controversy surrounding the environmental aspects of the leasing program based on extensive interviews with

BLM personnel, State government representatives, coal companies, and public interest groups

in the five regions. The findings of those reports

were reviewed at an OTA-sponsored workshop

(see front of report for a list of workshop participants). The workshop also included detailed discussion of the full range of environmental issues

raised by the participants in the leasing program.

This report is the product of the extensive interviews, background reports, and workshop

discussions on the environmental aspects of the

Federal coal leasing program. The report outlines

DOI’s pre-lease environmental assessment and

planning process, describes how that process was

implemented in the five Western coal regions,

discusses the issues that have been raised with

respect to the adequacy of that process and its

implementation, and reviews policy options that

would allow leasing to proceed in an environmentally compatible manner.

The report is organized as follows:

●

●

chapter 2 presents OTA’s findings on the

questions posed in the Conference Committee Report and the letter of request and

analyzes policy options for consideration by

Congress to improve the leasing program’s

ability to ensure that leasing decisions will

be environmentally sound;

chapter 3 describes the Federal coal management program and its provisions for environmental protection, as established in laws and

regulations; and
6 • Environmental Protection in the Federal Coal Leasing Program

Figure 1 .—Five Western Coal Regions

I

Green River

Hams Fork

SOURCE” Office of Technology Assessment

chapter 4 discusses the issues that have been The background papers documenting the strucraised about the environmental aspects of ture of the leasing program and its implementathe leasing program, and outlines OTA’s tion in the five Western coal regions are prefindings on those issues. sented as appendixes in a separate volume.
Ch. 1—Introduction ● 7

—

CHAPTER 1 REFERENCES

1. Bureau of Land Management, Fina/ Environment/

Impact Statement, Proposed Federal Coal Leasing

Program, FES-75-80 (Washington, D,C: U.S.

Government Printing Office, 1975).

2. Bureau of Land Management, Fina/ Environment/

Statement, Federal Coal Management Program

(Washington, D.C: U.S. Government Printing Office, April 1979).

3. Bureau of Land Management, Ho/dings and Development 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 Production Potentia/ of Federa/ Coal Leases, OTA-M-150

(Washington, D.C: U.S. Government Printing Office, December 1981).

6. S;erra C/ub v. K/eppe, 327 U.S. 390 (1 976).

7. U.S. House of Representatives, Making Appropriations for the Department of the Interior and Related

Agencies 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 2

Findings and Policy Options

Competitive leasing of Federal coal resumed

in 1979 following an 8-year moratorium, several

lawsuits, and congressional approval of legislation to ensure that leasing decisions would be

based on comprehensive planning and environmental impact assessment, that leases would be

developed in a timely manner, and that the public

wouId receive a fair return on publicly owned

lands. Consensus among all parties interested in

leasing was reached in 1979 on a set of regulations and policies to carry out that legislative mandate, and the first round of lease sales was held

in 1981 (see table 1 in ch. 1).

Changes made in 1982 and 1983 to the regulations and to other Department of the Interior

(DOI) policies and actions implementing the leasing program weakened that consensus. Alterations in the method of determining regional leasing levels increased the number of tracts to be

offered for lease beyond what the Bureau of Land

Management (BLM) could review for environmental compatibility in the time allotted, and, as

a result, BLM was unable in many cases to perform adequate pre-sale planning and environmental assessment, At the same time, critics contended that the high leasing levels and

irregularities in tract valuation prevented the

government from receiving fair market value for

the coal.

In response to these allegations, in mid-l983

Congress ordered DOI to appoint a Commission

to study issues related to fair market value. Shortly

thereafter, the Senate and House Appropriations

Committees asked the Congressional Office of

Technology Assessment (OTA) to evaluate the environmental aspects of the leasing program. In

particular, OTA was asked:

1. Is the Federal coal leasing program adequate

to ensure the development of leases in an

environmentally compatible manner?*

*The phrase “environmentally compatible” was in the Conference Committee Report on the DOI Appropriations Bill, which mandated this assessment. OTA has interpreted this phrase to mean

“in a manner compatible with current environmental laws and regulations” (other than those directly related to the leasing program;

see ch. 1).

2.

3.

4.

5.

This

Are pre-sale data and research about recently leased tracts adequate to base a decision on whether those tracts can be developed in an environmentally compatible

manner?

Are there characteristics of some of the recently leased tracts that wouId make development difficuIt under current environmental laws and regulations?

When all characteristics are considered, are

cumuIative environmental effects cause for

concern?

What are technical and policy options for

mitigating environmental concerns?

chapter presents OTA’s responses to these

questions. Detailed documentation of the issues

and findings summarized below may be found

in chapter 4.

1. Is the Federal coal leasing program adequate

to ensure the development of coal leases in

an environmentally compatible manner?

A Federal coal leasing program (described in

ch. 3) was instituted in the late 1970’s following

an 8-year moratorium on leasing that had been

imposed in response to economic and environmental concerns. Elements of that program that

address the latter include requirements for comprehensive land use planning, site-specific analysis of potential lease tracts, and regional environmental impact assessment before a lease

offering. These requirements are implemented

through a tiered system of data collection and

analyses, in which the level of detail increases

and the amount of land under consideration decreases as land moves closer to actual development (see fig. 2). As described in chapter 3, this

tiered system begins with land use planning,

when all potential resource uses on Federal lands

and opportunities for development of particular

resources are identified; proceeds through planning for a specific activity (e.g., a coal lease sale),

including preparation of an environmental impact

statement (EIS); and culminates after leasing in

review of an application for a surface mining permit, which includes a detailed tract-specific mining 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 use

planning

Activity

planning

Leasing

Permit application

and mine plan

review

SOURCE: Office of Technology Assessment.

Although the majority of environmental impacts

result from actual mine development, the environmental implications of land use planning and

leasing decisions also are important in terms of

the priority assigned to coal management relative

to other potential resource uses (e.g., grazing,

timber, watershed, recreation, wildlife, other fuel

or mineral development), and the degree to

which tracts with a high potential for environmental damage are screened out prior to the lease

sale.

OTA found that, in principle, the statutory

framework and the tiered system concept developed to implement that framework are capable of assuring adequate environmental protection during the development of Federal coal

leases. The framework is the result of at least 5

years of extensive debate and negotiations among

the various parties interested in the development

of an economically and environmentally sound

Federal coal management program (e.g., DOI,

Forest Service, Fish and Wildlife Service, coal

companies and their consumers, environmental

and public interest groups, State governments,

and Congress), While each of those groups has

a “wish list” of the elements of a statutory framework that would be perfect from their perspective, there is consensus among them that the existing legislative mandates are, in theory,

workable and adequate to ensure environ mentally compatible development of Federal coal

leases.

However, in practice, implementation of that

framework has fallen short. OTA found that

some aspects of the 1982 rule changes significantly increased the probability (i.e., risk) that

environmentally sensitive tracts would be leased

and eventually mined, and weakened public

confidence in the environmental soundness of

the Federal coal leasing program. These changes

included a substantial increase in leasing levels;

the elimination of most regulatory guidelines and

standards for data adequacy; the elimination of

regulatory authority to drop tracts (prior to the

EIS) from further consideration for leasing when

a threshold level of cumulative impacts is

reached; the elimination of several opportunities

for public participation, including public comment on proposed leasing levels and on application of the unsuitability criteria; and the elimination of the December 1984 deadline for

completion of comprehensive land use plans pursuant to the Federal Coal Leasing Amendments

Act (FCLAA) and the Federal Land Policy and

Management Act (FLPMA).

A second question about the adequacy of

BLM’s implementation of the environmental pro-
Ch. 2—Findings and Policy Options • 13

tection aspects of the Federal coal management

program is whether BLM field activities are consistent with the legal framework. OTA found that

time, staff, and budget constraints have prevented BLM field personnel from satisfying the

full intent of the statutory mandate. This was

evidenced when decisions required to be made

during land use planning were deferred to activity planning or to review of the surface mining

permit application. In effect, deferral of decisions

assumes that an area eventually will be found acceptable for mining. As a result, decision deferral has led to overuse of individual lease stipulations to address uncertainties in mitigation

requirements, and has detracted from the consistency and predictability of the leasing process.

While BLM needs some flexibility to adapt to

changing conditions, all participants in leasing

need a program that is implemented in a stable

and consistent manner.

When BLM was not able to comply fully with

regulatory requirements, the primary cause was

time constraints resulting from high leasing

rates—the combination of inflexible lease sale

schedules and a substantial increase in the number of tracts to be evaluated for each sale. This

problem could be alleviated with increased budget and staff allocations to land use planning and

activity planning. However, this option is inconsistent with current budget policy and does not

address the burden high leasing rates place on

other participants in the coal leasing program.

Alternatively, the leasing rate could be lowered

to accommodate existing staff and budget resources, and important concerns ranked in planning and environmental assessment and resources allocated to those concerns on a priority

basis, to facilitate higher quality and more consistent planning efforts by all participants in

leasing.

A comprehensive land use policy for Federal

lands also would help close the gap between

theory and practice in the coal leasing program.

While the elements of such a policy are in place

in the basic legislation, additional guidance is

needed on the relative importance to be placed

on various uses of, and resource values on, Federal lands. DOI’s ongoing reevaluation of its own

priorities for allocating resources would aid in the

development of such a policy, and the early completion of this effort should be encouraged. Congressional guidance on land use policy consistent with FCLAA, FLPMA, and the National

Forest Management Act, and on the allocation

of BLM resources to data collection and analysis at different stages of the leasing process,

could be offered through the authorization and

appropriation process. Additional coordination

also is needed among the various Federal surface

management agencies (e.g., BLM, Forest Service,

Bureau of Indian Affairs). For example, potential

leasing areas within National Forests are not yet

covered by Forest Land and Resource Management plans (currently scheduled for completion

and approval by September 1985), preventing

consistency between BLM and Forest Service

planning decisions (see fig. 3).

2. Are pre-sale data and research about recently

leased tracts adequate to base a decision on

whether those tracts can be developed in an

environmentally compatible manner?

Determination of the adequacy of pre-sale data

and analyses is difficult for three reasons. First,

the current program regulations provide insufficient guidance or standards for determining

when data and analyses are to be deemed adequate. As a result, each participant in the Ieasing process applies his own standards of adequacy, which vary widely. Second, existing analyses

of data adequacy often focus on whether a decision is supported by the data and research, not

whether the supporting analysis is of high quality in its own right. Third, judging the adequacy

of data raises the question of at what stage in

the coal management program particular decisions should be made. The industry would prefer to see most environmental questions resolved

at the mine plan stage, while others want most

such questions—especially final application of the

unsuitability criteria* —answered before a tract

is leased. As noted previously, OTA found that

the tiered system concept of evaluating environmental impacts could provide a workable balance among these concerns if it were implemented in a manner consistent with the

legislative mandate.

*Except for the alluvial valley floor criterion, which can be deferred to permitting,
14 ● Environmental Protection in the Federai Coal Leasing Program

Figure 3.—Approximate Overlap Between Coal Leasing Regions and National

Forests and Other Special Federal Management Areas

1

Coal leasing regions

National forest lands

Other special Federal areas

(National parks, recreation

areas, grasslands)

SOURCE: Office of Technology Assessment

The only detailed regulatory guidelines or

standards in the program regulations by which

to judge the adequacy of data apply to the unsuitability criteria. In general, that standard requires the use of “the best available data that can

be obtained given the time and resources available to prepare the plan,” plus an indication of

the adequacy and reliability of the data involved,

and, if the criteria cannot be applied due to inadequate or unreliable data, a discussion of the -

reasons therefor, and an assessment of when

“the data needed to make an assessment with

reasonable certainty would be generated” (43

CFR 3461 .3-1 (b)(l); emphasis added). Furthermore, this standard specifies that no lease tract

may be analyzed in a final regional lease sale EIS

without “significant data material to the application to the tract of each [unsuitability] criterion, ”
Ch. 2—Findings and Policy Options • 15

but it also allows the inclusion of tracts when data

are lacking for the application of the criteria for

only a portion of the tract, and if BLM determines

that lease stipulations or permit conditions could

“avoid any problems which may result from subsequent application of the criterion or exception”

(43 CFR 3461 .3-1 (b)(2)).

It is OTA’s view that this standard is too vague

to provide meaningful guidance to BLM personnel on the level of data and analyses needed to

support application of the unsuitability criteria

and thus cannot be applied effectively to other

decisions in the leasing process. Furthermore,

this standard may actually be counterproductive in that it excuses the primary cause of BLM’s

inability to comply fully with the statutory and

regulatory requirements-insufficient time and

resources—and explicitly allows deferral of unsuitability decisions on portions of tracts to the

Secretarial decision and beyond and therefore

could promote the overuse of lease stipulations

and permit conditions.

As a result, OTA proposes that BLM’s data and

analyses be considered “adequate” if they: 1 )

promoted a reasonable consensus among the

participants in the leasing process (i.e., did not

resuIt in substantial controversy over insufficient

data); 2) did not necessitate decisions to accommodate gaps in data and analysis (e.g., deferral

of decisions beyond the time when they were required to be made, or lease stipulations requiring the collection of data that should have been

available for the evaluation of a tract’s acceptability for leasing); and 3) supported the decision

made.

Based on this definition, it is OTA’s judgment

that, in many cases, BLM’s pre-sale data and

analyses have been inadequate to base a decision on whether recently leased tracts (and those

proposed to be offered in future lease sales) can

be developed in an environmentally compatible manner. In literally all coal leasing regions

criticisms about insufficient data upon which to

base decisions about unsuitability criteria or multiple-use tradeoffs have been documented (see

ch. 4). Because the supporting data and analyses were inadequate, decisions about tracts’ acceptability for leasing that should have been

made during land use planning were deferred to

activity planning, the Secretarial decision, or mine

plan review.

Because the tiered structure of the environmental decisionmaking process is inherently de

pendent on a succession of increasingly detailed

data and planning bases, the quality of decisions

made at one tier suffers if data were not available in sufficient detail to support the required

decision at the next lower tier. This concern extends to decisions that are deferred to the mine

plan stage, in part because decisions at that stage

are intended to accommodate coal development,

rather than exclude areas from mining. While recognizing the importance of ensuring environmental protection at the mine permit review stage

and during mine development and reclamation,

OTA was unable to evaluate those aspects of the

Federal coal management program within the

confines of this assessment.

Although the data base and analyses were adequate for some decisions by the time the final EIS

for a regional lease sale was completed, deferral

of data collection and analysis to activity planning means the data were not available early on

to be incorporated in comprehensive land use

planning and the identification of opportunities

for the development of coal resources, or in RCT

tract rankings. Moreover, reliance on tractspecific data and analyses for some areas raises

problems because the lack of data at an equivalent level of detail for an entire leasing region

means that data and analyses may not provide

a perspective on the regional importance of resource values.

The quality of data and research vary widely

among regions, among tracts within a region,

and between sales within a region. Regional differences can be attributed in part to the level of

coal development activity in the past, and therefore the availability of data on the impacts of mining, and in part to the degree to which future coal

development was anticipated in early planning

documents. For example, the San Juan River Region, which generally is considered to have had

the most problems with data adequacy, did not

anticipate a high level of leasing activity and consequently was faced with a massive data collec-
16 ● Environmental Protection in the Federal Coal Leasing Program

tion and analysis effort given the high regional

leasing level. Differences in the quality of data

among tracts within a region often can be traced

to the availability of data from sources other than

BLM (e.g., an operating mine adjacent to a proposed lease tract), or to the difficulty of data collection and planning when BLM does not manage the surface. Finally, better information

typically is available for subsequent lease sales

than the first round sale because of the greater

amount of time available for data collection and

analysis and the ability to build on planning and

assessments conducted in support of the earlier

sale.

The primary cause of the inadequacy of data

and analyses was high leasing rates—the ratio

of leasing levels and lease sale schedules. High

leasing rates increased the number of tracts that

had to be evaluated during land use and activity

planning without giving field personnel additional

time in which to complete those evaluations.

Consequently, some land use planning decisions

either had to be deferred or made on the basis

of available data. In other instances, additional

time was taken to complete land use planning,

which resulted in less time for activity planning—

primarily site-specific analyses–which detracted

from the adequacy of data and analysis at that

stage. High leasing rates also strained the resources of other participants in the leasing process. For example, the Forest Service was unable

to complete its required planning in time to meet

BLM’s sale schedule in the Uinta Region. It should

be noted, however, that even with perfect data

and analyses, high leasing rates—in and of

themselves—increase the probability that environmentally sensitive tracts will be leased because high leasing levels mean that a greater

number of tracts must be offered for lease.

Other policies that have contributed to data

inadequacy are: continued reliance on preFLPMA Management Framework Plans (and Forest Service land use or unit plans) that have been

updated or amended to reflect leasing activity,

rather than giving priority to the preparation of

comprehensive new areal planning documents

(Resource Management Plans); reduced budget 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 consider

data available from sources other than BLM

(e.g., mine plans and operating mines, other

Federal and State agencies); and personnel rotations within BLM that constrained the development of an institutional memory. The last

point–continuity among qualified, experienced

personnel–is especially critical to the consistency

of data and analyses over time, and to the maintenance of an adequate understanding of the coal

regions and the potential impacts of mineral development in those regions. The effects of the policies listed above are compounded by factors

such as the lack of ways to make use of industry

data and to include industry resources more during the planning stages; and the difficulty of access for data collection when the Federal Government does not own the surface.

3. Are there characteristics of some of the recently leased tracts that would make development difficult under current environmental

laws and regulations?

Virtually all lease tracts have characteristics

that might be considered by some to be incompatible with coal mining, ranging from present

land uses, such as agriculture or timber management, that would be disrupted by mining, to environmental values that might be lost for at least

several years due to mining (e.g., wildlife habitat; see tables 2 and 3). The tiered decisionmaking process for coal leasing is intended to screen

out lands before a lease offering where it is clear

that impact mitigation would not be possible, or

where mining would interfere with other important resource values. However, the inadequacy

of data and analyses discussed previously prevented effective implementation of the tiered

structure concept. As a consequence, less was

known prior to leasing about the sensitivity or

regional value of the environmental resources

on these tracts than was desirable. Moreover,

the environmental screens have not always been

interpreted as strictly or applied as consistently

as intended in the 1979 program, in part because

of the 1982 regulatory and policy changes, and

in part due to insufficient data and analysis.

As a result of these and other factors, environmentally sensitive tracts have been “carried for-
Ch. 2—Findings and Policy Options ● 17

Table 2.—Environmental Resources of Coal-Producing Regions

Carrying

Agriculture 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 small

quantities except in alluvial valleys

where 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, wheat- reals, 200 southern

grass. species fish, 20 area.

species reptiles Elsewhere,

and amphibians. Cropland: 37°/0

Federally pro- Range: 540/0

tected species: 4 Principal

birds, 3 mam- crops: wheat

reals. and grain.

Powder River Overall quality:

generally good.

Variations around

populated areas,

i.e., Colstrip, Mont.

is a nonattainment

area for TSP.

Annual surface water run-off: less

than 0.5”.

Surface water limited except along

major streams. Quality: variable.

Groundwater availability and quality: variable,

Major streams: Yellowstone, Big

Horn, Powder, Tongue, Belle

Fourche, and Musselshell.

Wyoming: Prairie Similar to Fort Grazing and 15.5

shortgrass, Union. ranching. acres/

grassland Federally pro- Cropland: 50/. A.U.M.

sagebrush. tected species: 3 Range: 88°/0

Montana: grassland birds, 1 mammal.

sagebrush, and

ponderosa pine.

Green River- Overall quality very

Ham’s Fork good, however,

Craig, Colo. and

parts of Sweetwater, Colo., and

Wyoming are nonattainment for

TSP.

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, limited

poor 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°/0

species.

Wild horse herds.

Federally protected species: 1

fish, 3 birds, 2

mammals.

Uinta- Rural air quality:

Southwestern very good.

Utah Urban areas: occasional problems

during temperature

inversions.

Annual runoff: 0.1-.5 "/yr. Vegetation varies

Good water quality. with climate.

Region contains numerous Cold desert biome:

tributaries to the Colorado River: salt brush and

Green, White, Duchesne, Price, greasewood.

Dirty Devil, Paria, Escalante, & Mountain Forest

Virgin Rivers. biome: pine, fir,

spruce, and

sagebrush.

Varied habitat

supports many

diverse species:

90 species mammals, 270

species birds, 26

species reptiles,

9 species amphibians

Federally protected species: 3

fish, 3 birds, 2

mammals.

Desert 8.3 acres/

shrubland A.U.M.

and open

woodland

grazing.

Crops: 3%

Range: 62°/0

Forests: 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°/0

High SO2 levels stream in Federal lease block area, and grasslands. species amphib- Forests: 450/o

near 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 sugartected species: 1 beets.

fish, 4 birds, 1

mammal.

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 parklands

Region Archeological resources and forests resources

Fort Union Much of the region has some iden- . Little Missouri National

tified archaeological value. A few Grassland

areas have large sites and/or high ● Theodore Roosevelt National

site density. There is a high prob- Memorial Park

ability of disturbance to sites in ● Custer National Forest

Custer Co., Mont., and in Mercer,

Williams, and Oliver Co’s., N. Dak.

Powder River There is a high probability of distur- ● Devils Tower National Monument

bance to sites in Rosebud, Bighorn ● 65 Sites eligible for, or currently

and Powder River Co’s., Mont, and enrolled on the National Register

in Johnson and Campbell Co’s., of Historic sites.

Wyo. Remainder of region consid- . Thunder Basin National

ered to have some archaeological Grassland

value. ● Custer National Forest

Green River- The region has some identified . Flaming Gorge National RecreaHams 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, CanUtah turbance to Fremont and Anasazi yonlands, Zion, and Bryce Cansites in Emery, Kane and Garfield yon National Parks

Co’s., in Utah. Remainder of region ● Cedar Breaks National Monument

considered 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 Park

having both great archeological • 6 National Monuments

and historical value. There is a high

probability of disturbance to sites

in the Chaco Canyon National Monument 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~~/itatlon Potent/a/ of-Western Coal Lands, NAS, 1974.

SOURCE: Office of Technology Assessment.

ward” from land use planning to activity planning and the Secretarial decision on a lease sale,

and final decisions on tract acceptability have

been deferred to permit application review (e.g.,

tracts containing municipal watershed). These decision deferrals, coupled with the factors noted

above, increased the probability (i.e., risk) either

that adverse environmental impacts will occur

if a recently leased tract is developed, or that

such tracts will be costly or difficult to develop

and reclaim. None of the recently leased new

production tracts has been through the permit

application review process, and thus no determinations about the technical and economic feasibility of mining and reclamation on those tracts

have been made by permitting agencies. However, such determinations will be made eventually, and if a tract or a portion of a tract cannot

be developed in a manner compatible with current environmental laws and regulations, then the

Surface Mining Control and Reclamation Act of

1977 (SMCRA) does not allow a permit to be

issued for that area.

While unable to determine whether the leased

tracts are technically and economically reclaimable under SMCRA, OTA found no “fatal flaws”

that would absolutely preclude mining on tracts

that have been leased since 1979. In some cases,

however, BLM carried tracts with what might

be considered fatal flaws all the way through

pre-lease planning and analysis, and scheduled

them to be offered for lease, but withdrew them

(often for reasons unrelated to the leasing process) at the last minute. For example, the Garrison

tract in Fort Union contains two missile silos and
Ch. 2—Findings and Policy Options ● 19

several miles of control cable, which the Air Force

considers to be a fatal flaw, but the tract was carried forward at the request of industry pending

completion of an Air Force study on the buffer

zones needed to protect defense installations

from surface mining. The tract was dropped in

the Secretarial Issue Document at the request of

the Secretary of the Air Force because the study

was not complete. Tracts that are dropped still

are not necessarily considered absolutely unsuitable for mining; they may merely be removed

from further consideration for leasing until additional research on mitigation and reclamation allows a final decision to be made.

However, differences in professional judgment do exist on both the relative importance

of environmental resource values and the ability

to mitigate environmental impacts on some

tracts that were offered and/or leased or are

under evaluation for leasing. For example, in the

San Juan River leasing region, the paleontological

community cannot agree on whether fossil deposits should be protected outright, or whether

impacts can be mitigated and the scientific value

of the fossils preserved through appropriate excavation techniques. In the powder River Region,

debate over the technical and economic feasibility of reclamation on several tracts led to the

Tongue River Unsuitability Petition, which was

denied because sufficient data will not be available to evaluate reclaimability until mining and

reclamation plans are prepared by lessees.

A major source of the disagreement about the

relative environmental sensitivity of recently

leased tracts lies in the disagreement about the

types of impacts that can be mitigated and the

ability to reclaim surface mined land. Critics of

the environmental safeguards in the leasing program argue that the success of reclamation on

surface mined lands has yet to be demonstrated

conclusively, and that the coal industry is overly

optimistic about the prospects for successful reclamation. Therefore, they contend that where

evaluation of a tract prior to leasing raises questions about its reclaimability, that tract should be

withdrawn from leasing until additional reclamation experience is accumulated. Others argue that

experience to date demonstrates there is almost

no land that cannot be reclaimed technically, and

very few (if any) types of impacts that cannot be

mitigated, and the only question is whether mitigation and/or reclamation are economically

feasible. * They see that as a business decision

which should not be made for the lessee by a

government agency or other group.

Due to the extremely detailed analyses that

are necessary to evaluate reclaimability, OTA

believes that only estimates of reclamation potential can be made before leasing. These estimates are incorporated in the Regional Coal

Team’s tract rankings, but are not necessarily a

deciding factor since tracts given a “low” or

“moderate” reclamation potential ranking have

been carried forward for leasing. Furthermore,

OTA found that debate among experts about the

ability to mitigate particular types of impacts (e.g.,

hydrology, archaeological and paleontological resources, critical wildlife habitat) leads to disagreement about how strictly the environmental

screens should be interpreted.

Such differences in professional judgment further confuse the public about the adequacy of

environmental safeguards in the leasing program. Possible means of resolving these differences and improving public confidence in the

environmental soundness of leasing decisions

could include more stringent standards for

screening tracts before leasing, which should result in offering fewer tracts about which there is

substantial controversy. Continued research on

impact mitigation, mining, and reclamation techniques, and dissemination of the results to interested parties also would help.

4. When all characteristics are considered, are

cumulative environmental effects cause for

concern?

There are three aspects to cumulative impacts:

1) when the total impacts on a particular tract are

greater than indicated by the mere sum of individual impacts; 2) the total regional impact of

mining on all leased tracts; and 3) the combined

*lt should be noted that a tract has never failed to be permitted

due to inability to demonstrate the technical or economic feasibility

of reclamation, although permit application review has resulted in

portions of tracts being closed to mining to mitigate particular types

of impacts (e.g., buffer zones for wildlife habitat). As a result, deferral

of unsuitability determinations to the permitting stage increases the

risk that an environmentally sensitive tract will be mined.
20 ● Environmental Protection in the Federal Coal Leasing Program

impacts of mining on several tracts located in the

same area. The first aspect cannot be evaluated

until the tracts have been included in a mine plan

and permit application. OTA finds the second

aspect is a matter of concern because the high

leasing rates increased the number of tracts to

be evaluated in pre-sale planning (including the

EIS) without increasing the resources available

to perform such planning (discussed earlier).

OTA finds that the third aspect of cumulative

impacts-the effects of several mines operating

within the same area—also is cause for concern

because the current regulations do not explicitly

incorporate the assessment of such impacts

early in the leasing decisionmaking process. The

1979 regulations incorporated a “threshold” concept during land use planning and tract ranking

for determining when potential cumulative impacts were severe enough to warrant dropping

tracts from further consideration for leasing or imposing mitigation requirements. Under the 1982

program, cumulative impacts still must be assessed in the regional lease sale EIS, which is prepared at the end of activity planning, in order to

satisfy the requirements of the National Environmental Policy Act. However, explicit regulatory

authority to impose mitigation requirements or

drop tracts prior to the EIS when a threshold level

of cumulative impacts is projected was eliminated

in the 1982 rule changes. According to DOI, that

authority was dropped because the threshold

concept was not well understood and was never

used. An additional concern here is a lack of

agreement between BLM and other Federal surface management agencies (e.g., Forest Service)

and State and local governments on the significance of projected cumulative impacts.

Most of the recently leased tracts were analyzed under the 1979 rules, which did include

a threshold concept for screening out areas with

a potential for significant cumulative impacts. Because that concept had never been applied, it is

unclear whether the 1982 lease program will

change the treatment of cumulative impacts.

OTA’s view is that there is a potential for significant cumulative impacts if a number of

mines were developed within an area. Drainage

basin studies of lease areas prepared for BLM in

support of pre-sale planning and environmental

assessment raise concerns about cumulative hydrologic impacts in the Powder River, Green River-Hams Fork, and Uinta-Southwestern Utah regions (see fig. 4). Similarly, the San Juan second

draft EIS indicates that development of the preferred leasing alternative could violate air quality

standards, while an air quality study underway

in Powder River suggests that surface mining will

have adverse cumulative impacts on visibility and

particulate concentrations. *

The design of mitigation measures for cumulative impacts typically is left to the permitting

agency because detailed data on factors such as

hydrology are not available until mine plan review. Yet that review is tract specific and may not

capture cumulative effects from multiple mine development in an area. Furthermore, as noted previously, decisions at the permitting stage are more

likely to result in mitigation requirements than

the exclusion of areas from mining.

5. What are technical and policy options for mitigating environmental concerns?

An economically and environmentally sound

coal leasing program is an integral part of national energy policy and public land management policy. In 1979, all participants in coal

leasing reached consensus on the elements of

a sound program. The soundness of that program—and underlying public confidence in the

Department of the Interior—was undermined

in 1982 when basic changes were made in program policy and regulations. Unless the reasonable expectations of all participants in that

program about economic and environmental

“soundness” are satisfied once again, competitive leasing will continue to be stalled because

of the environmental and economic risks, and

public confidence in the program will continue

to erode.

Recently, the Department of the Interior has

begun a review of the Federal Coal Leasing Program. This is an important first step in restoring

an environmentally sound and predictable leasing process and priority should be given to its rap-

*Cumulative air quality impacts are also a concern with minemouth and other coal conversion facilities in Fort Union.
Ch. 2—Findings and Policy Options ● 21

34-756 0 - 3 - QL 3
22 . Environment/ Protection in the Federal Coal Leasing Program

id completion. Other actions likely are needed,

however, and OTA identified a variety of technical and policy options that could improve the

ability of the Ieasing program to assure the development of leases in an environmentally compatible manner, and help to restore a measure

of stability and predictability to the leasing program. These options and the policy goals they

might promote are listed in table 4 and discussed

below.

OPTION 1: Reduce lease rates

Reducing leasing rates by offering less coal for

lease on a predictable, steady schedule (while still

allowing for adjustments in that schedule if necessary) would reduce the amount of land that has

to be evaluated within a given amount of time

for its environmental acceptability for leasing.

Thus DOI staff would be more likely to have sufficient time to complete each stage of planning

and analysis before proceeding to the next stage.

Reduced leasing rates through lower leasing levels also would relieve the pressure on BLM to find

a greater number of tracts environmentally compatible, and could address criticisms of the adequacy of pre-sale data and analyses and their documentation, the deferral of planning decisions,

and the overuse of detailed lease stipulations. As

a result of all these factors, the risk of adverse

environmental impacts on lease tracts would be

reduced. However, if a lower leasing rate results

in BLM concentrating its leasing efforts primarily on those tracts in which industry has expressed

strong interest, then such a rate could lead to leasing of tracts that are less environmentally compatible than areas deferred for future evaluation.

A lower, but steady, leasing rate with a predictable schedule also would make planning for all

other participants in leasing more efficient. Furthermore, it is important that the process for setting leasing levels be transparent to facilitate public review, and that the process recognize

environmental and market realities and public

concerns. This option would be easy to implement, but would lengthen the period over which

a given level of forecast revenues from the leasing program would be received.

OPTION 2: Decentralize decisionmaking

authority

Decisionmaking authority in the current leasing program is highly centralized, with BLM State

and field offices, and Regional Coal Teams (RCTs)

forwarding recommendations to the Secretary of

the Interior, who makes final leasing decisions.

The program originally was structured to assure

sensitivity to regional, State, and local needs and

priorities. However, confidence in the soundness

of that structure has eroded as Secretarial decisions on tonnages and tracts to be offered for

lease and on the timing of leasing activities (including planning and environmental analysis)

have, in many instances, overridden recommendations based on those needs and priorities.

Overruling such recommendations also undermines the predictability and stability of the leasing program and thus strains the resources of all

participants in the program. Several options might

be considered to restore the needed sensitivity

and predictability.

Decentralizing decisionmaking authority on

tracts and tonnages to be offered for lease, and

the timing of such offerings, to the RCT or BLM

State Office level (subject to Secretarial review)

would improve the sensitivity of leasing decisions to State and local needs and priorities. Delegation of final leasing decisions on Ieasing rates

and tracts to be offered to the RCTs or the BLM

State Office (subject to departmental review)

would have few administrative costs. In effect,

leasing decisions would remain in the hands of

the Federal Government (which has a majority

on each RCT), but the final decision would be

closer to the region it affects.

A second option–to restructure the RCTs to

give the States equal or majority representation–would take decentralization one step further. Under the current RCT structure, the Federal Government retains the majority voting

membership on each RCT (see ch. 4). This has

contributed further to the perceived insensitivity

to State needs and priorities. However, to give

the States a greater proportion would delegate

important Federal management decisions on
Ch. 2—Findings and Policy Options ● 23

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24 . Environmental Protection in the Federal Coal Leasing Program

publicly owned resources to the affected State

governments, and may beat least illegal and perhaps unconstitutional.

A third, and also controversial, option for decentralizing decision making would be to expand

voting membership on the RCTs to include a

broader range of interests. This might involve

merely adding other affected Federal surface

management agencies (e.g., the Forest Service),

or all “interested parties” could be considered

for membership, which would lead to extensive

debate on representation. Alternatively, RCT Task

Forces on special topics can be used to ensure

greater participation by interested parties (see discussion of public participation, below).

An additional means of decentralization would

be to reorganize the leasing regions along State

boundaries. The current regions correspond to

the coal fields, which straddle those boundaries

and thus each region contains portions of two

States (see fig. 1 inch. 1). When those States’ development policies and goals conflict, leasing decisions can compound the appearance of insensitivity. Using two-State regions in the leasing

program also has complicated the coordination

of BLM field operations. Restructuring the leasing regions along State boundaries could make

BLM management of the leasing program easier

as well as more effective and predictable, because fewer offices would be involved in the

planning and analysis for each coal region.

However, it would require reorganization of the

roles and responsibilities of the BLM offices involved in the leasing program, and could lead

to balkanization of interests.

OPTION 3: Improve the effectiveness of pubilc

participation

The effectiveness of public participation could

be improved through brochures, newsletters, and

workshops aimed at increasing public understanding; through better documentation of planning and leasing decisions; through reinstatement

of opportunities for public hearings and comment

periods on regional leasing levels, community impacts, and the application of the unsuitability

criteria—topics on which public input has proven valuable in the past; and/or through working

groups or ex officio memberships within the

RCTs.

A basic problem with public participation in

the leasing program is that the general public

does not understand the program well enough

to participate effectively. This problem was dealt

with effectively in the Fort Union region with a

newsletter issued by BLM and distributed to all

interested parties (e.g., landowners, public interest groups, other Federal and State agencies).

Techniques that have contributed to public understanding in other government programs include brochures and workshops. A readable

newsletter or brochure that described the basic

steps in the program, their goals and products,

and the means of public participation at each step

would improve public understanding. Other programs have had success with brochures drafted

by Task Forces or Committees composed of representatives of different interest groups as well

as the Federal Government. Clearly, either a

newsletter or brochure would have to be disseminated widely in areas affected by leasing in order to be effective. workshops in local communities at the outset of land use and activity

planning also could improve public understanding, especially if they followed distribution of a

newsletter or brochure.

Even groups who understand the leasing process may be frustrated in attempts to participate,

however, because of the lack of documentation

of leasing decisions. Currently, the availability of

documentation varies widely among regions. In

at least one region, the basic planning document—the MFP—is not available to the public in

published form. In other regions, documents may

be widely available, but do not indicate the basis

or rationale for decisions. As discussed in chapter

4, regulations requiring such documentation have

been dropped. If all documents supporting decisions were published and widely available, and

described the basis for decisions, including supporting technical data and analyses, the effectiveness of public participation would be enhanced, and major sources of frustration with—

and thus challenges to—leasing decisions would

be removed.
Ch. 2—Findings and Policy Options ● 25

Several other means are available for increasing the quality and quantity of opportunities for

public participation. The 1982 revisions to the

leasing program regulations eliminated four opportunities for public participation, including

hearings on DOE-established production goals,

and comment periods on leasing levels, on community impacts, and on the application of the unsuitability criteria. Comments on these factors are

now limited to time set aside at public RCT meetings and to personal communications with BLM

personnel. The deletion of these opportunities

has reduced the ability of the public to provide

an in-depth review of critical decisions supporting a lease sale. Furthermore, these changes may

have contributed to public confusion about opportunities for participation. BLM should consider reinstating these opportunities in a manner that would enhance the effectiveness of

public participation.

The RCTs also were intended to provide a forum for public participation in the leasing program. However, for a variety of reasons, including

the formal RCT meeting style and inadequate

public access to RCT background materials (including time for evaluation), opportunities for

public participation at RCT meetings currently

are more procedural than substantive. As a result, several groups have asked for voting membership on RCTs (which was denied). Expanding

voting membership to include other affected

groups (e.g., Indian Tribes, the Forest Service,

local communities and landowners) would be difficult due to the need to decide what the important affected interests are and to negotiate for

representation of those interests.

Alternatively, greater use could be made of

special RCT Task Forces or working groups similar to those used by the San Juan River RCT and

in Utah, or of ex officio memberships as in Colorado. These avenues for increased public participation have proven effective in promoting

constructive dialog among the parties and thus

improving the quality of leasing decisions. The

primary obstacles to the more widespread use of

RCT task groups, etc., are the limited RCT budget

and staff support, and the lack of BLM career incentives for Bureau personnel who serve as RCT

staff.

Relative to public participation, care must be

taken to ensure that the environmental, cultural,

and economic concerns of special interest

groups (including Indian Tribes, local communities, and farmers and ranchers) are addressed

adequately. In particular, consultation with the

Tribes has not always occurred early enough in

the planning for a lease sale; coordination with

Tribal goals and policies is lacking. Such coordination is difficult-in part because the environmental impacts of concern to the Tribes usually

do not occur on BLM lands.

These options for improving the effectiveness

of public participation tend to have a relatively

low administrative cost, with the possible exception of RCT working groups. However, the benefits posed by effective public participation, in

terms of higher quality leasing decisions and

therefore reduced environmental risk in, and

greater public confidence in the soundness of,

the leasing program, would outweigh the costs

of implementation. Negotiated lease stipulations

(when stipulations are absolutely necessary) are

an additional mechanism for public participation,

but, as discussed in chapter 4, raise concerns

about the overuse of stipulations and about anticompetitive effects if all potential bidders are not

involved in the negotiations.

OPTION 4: Ensure comprehensive area planning

is completed before a lease offering

One concern with the current implementation

of the leasing program is the continued reliance

on Management Framework Plans (MFPs) that

have been amended or updated to support recent leasing activity (see ch. 3). Further delays

in the preparation of Resource Management

Plans as an up-to-date comprehensive areal

planning base will continue to contribute to the

perceived inadequacy of BLM’s data and analyses, and thus reduce the likelihood that the

leasing program will proceed in a predictable

and stable manner. Preparing RMPs is a timeconsuming process and could interfere with the

immediate progress of leasing unless coupled

with 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 updated MFPs are legally adequate. However, com-
26 ● Environmental Protection in the Federal Coal Leasing Program

pletion of RMPs as the base for future land use

and leasing decisions would remove a major

source of criticism of the adequacy of pre-sale

planning and analysis, and would help to ensure

that pre-sale planning is compatible with the spirit

of the 1976 statutory mandate.

As discussed in chapter 4, during fiscal year

1984 BLM proposed to implement several

changes in the focus of pre-sale planning and

assessment activities in order to reduce the costs

of program administration. Of particular concern

are the projected shift in emphasis from the collection of areawide data to information specific

to areas with a high coal development potential,

and the proposal to increase reliance on inhouse

and company data (without ensuring public access and review of those data; see option 5,

below). These changes assume that the existing

planning base will be adequate, with region- or

tract-specific amendments, to support future lease

sales. Since OTA found the opposite, continued

cutbacks in these activities could exacerbate the

current problems with the leasing program unless

compensating reductions are made in the regional lease rates (option 1, above).

OPTION 5: Develop a means of improving the

data base and access to it

Ultimately, the adequacy of land use and activity planning and environmental assessment depends on the quality and quantity of supporting

data and analyses. In the course of this study,

OTA identified several sources of relevant data

that would support leasing decisions by improving BLM’s data base, but are not consistently being sought out or systematically used by BLM.

These include data from mine plans, ongoing

mining operations, other Federal and State agencies, local communities and residents, academe,

the industry, and interest groups.

The primary obstacle to the use of these data

sources is that they are not compiled in a manner that permits easy access. Thus, BLM staff

must not only discover whether information relevant to a particular tract or question exists, but

must expend a substantial amount of effort in

searching files, mine plans, or the published literature to locate specific data. While consultation with the groups or individuals knowledgeable about an area can facilitate this process

somewhat, a comprehensive data base that compiles information from all sources in an accessible manner would provide a systematic means

of incorporating the widest possible range of information about an area into pre-sale planning

and analyses. Such a data base also could contribute to public and interagency review of BLM

documents, as well as to the preparation of mining and reclamation plans. Furthermore, it would

help ease the loss of institutional memory that

results from attrition and personnel rotations.

DOI currently is developing a computerized

data base on Federal coal resources and characteristics. This effort eventually could be expanded

to include data bases on other resources, or even

research on all aspects of coal development. Alternatively, the task could be funded jointly by

Federal and State governments and the industry

through an industty association, a consulting

group, or a university. OTA notes with regret the

discontinuation (for budget reasons) of the Forest Service’s quarterly compendium of surface

mining research, “SEAM. ”

At the same time, BLM needs to maintain upto-date inventories of all resources on the public

domain in order to address concerns about the

age of some existing data, and about the gaps

in available inventories. If such inventorying is

too expensive for the Federal Government, the

burden for collecting these data could be shifted

to the industry. One option would be for those

companies interested in bidding on tracts within

a particular area to jointly fund the collection and

analysis of data to support leasing (including data

on coal as well as environmental and other resources). The company that submitted the winning bid on a tract could then reimburse the

others for their contribution. A similar approach

is used in assessing oil and gas resources on the

outer continental shelf (30 CFR 251 .6-3). Alternatively, an industry-funded research institute

could be established (similar in concept to the

Electric Power Research Institute), with each

company’s contribution determined according to

considerations such as its size and level of mining activities on Federal lands. For application to

coal leasing, either scheme could require some

adjustment in the antitrust laws. Moreover, the
Ch. 2—Findings and Policy Options ● 27

industry would have to make a commitment that

no such data would be deemed proprietary (other

than coal resource data)—and thus not subject

to public review and comment—in order to address concerns about the injection of an inherently pro-mining bias into BLM’s planning and

assessment.

Research on the ability to mitigate certain

types of impacts and to reclaim surface mined

lands also should be continued, and the results

disseminated as widely as possible. Knowledge

about (and thus use of) mitigation and reclamation techniques varied widely among the five

Western coal regions, As a result, some regions

used more stringent mitigation requirements than

others. This contributed to the perception that

pre-sale planning and analyses were inadequate,

and may have made mining on some tracts appear more expensive than it had to be.

Finally, an important means of improving the

quality of data and analyses is to encourage retention of qualified, experienced field personnel. Revaluating incentives for career development to

encourage the maintenance of an “institutional

memory” in BLM field offices and RCT staff

assignments is a crucial first step here.

OPTION 6: Provide meaningful guidelines and

standards for assessing the

adequacy of the data base

workable regulatory standards or guidelines

for assessing the adequacy of pre-sale data and

analyses would remove some of the grounds for

uncertainty about their adequacy, and would

aid BLM staff in their management of lease sales.

Such standards and guidelines contributed to the

consensus on the environmental soundness of the

1979 program regulations, but largely were eliminated from the regulations in 1982. The regulatory standard that remains is too vague to provide meaningful guidance to BLM field personnel,

and may even excuse data inadequacy and the

deferral of decisions when these can be attributed

to time and resource constraints.

Although internal BLM memoranda and other

directives continue to provide some guidelines

for the adequacy of data and planning, these documents are not binding as regulations are, are not

subject to public review and comment, are not

as accessible to the public as standards developed

through formal rulemaking, and can be changed

more easily than regulations. Any regulations developed should not be “cookbook” standards but

guidelines with sufficient flexibility to accommodate regional differences in data needs. These

standards should explicitly recognize the quality

and quantity of data and analysis in the various

field disciplines needed to support decisions at

each stage of the leasing process, and also might

include guidelines that more rigorously define

the circumstances under which decisions can be

deferred due to insufficient data (or for other

reasons).

OPTION 7: Incorporate cumulative impact

assessments in pre-sale planning

decisions

The use of cumulative impact analyses in early

land use and activity planning decisions also was

part of the consensus on the 1979 regulations.

Under the 1982 leasing program, however, cumulative impacts of the development of several

mines within an area are not required to be assessed until the EIS on a regional lease sale. As

a result, such an assessment usually is not incorporated in land use planning decisions, and is not

used in activity planning until the RCT’s final recommendation on tracts to be offered for lease.

Completion of adequate RMPs, which incorporate an EIS on general land use planning decisions, will ease this situation. However, given the

tiered concept of data and analysis, the EIS on

an RMP cannot include information at the same

level of detail as in site-specific analyses or the

final EIS on a regional lease sale.

Moreover, the 1982 regulations eliminated the

threshold concept of cumulative impacts as a

basis for dropping areas from further consideration for leasing prior to the final RCT recommendation. According to DOI, the threshold concept

was not well understood and had never been

used. Development of a workable threshold

concept of cumulative impacts and its reinstatement for land use and pre-EIS activity planning

through formal rulemaking would improve the

quality of BLM’s planning and assessment and

reduce the probability that sensitive tracts would

be leased.
28 • Environmental Protection in the Federal Coal Leasing Program

OPTION 8: Establish policies and procedures for

environmental lease exchanges

OTA found lease exchanges to be a potentially

useful tool in reducing the risk that a tract, once

leased, would be found to be unminable for environmental reasons. Thus, the availability of

environmental exchanges would reduce the pressure to approve a permit application on a tract

found to have environmental flaws after it has

been leased. Exchanges also can be valuable for

pre-1976 leases and Preference Right Lease Applications (PRLAs) that were not acquired under

the same mandate for environmental protection

and thus might be so environmentally sensitive

that the costs of mitigation and reclamation

would be prohibitive.

However, the need for congressional authorization for coal lease exchanges coupled with

the lack of established, transparent policies and

procedures for effecting environmental lease exchanges prevents their use. Policies and procedures for economic exchanges are equally in

need of evaluation and definition. OTA makes

no judgment about the value of economic exchanges, but notes that consolidation of Federal

ownership could facilitate environmental protection (although this has not always been the case

to date).

DOI took a first step toward developing such

a policy in a directive issued in November 1983,

which states that “the exchange of leasable and

salable minerals is an important tool in achieving public interest federal multiple use management and land protection goals,” and lists 12

criteria for determining when an exchange would

be in the public interest. These criteria include

exchanges that would serve a national resource

management or protection need. This general

policy directive should be supplemented with a

detailed outline of the procedures to be followed

in evaluating a proposed exchange, which should

be subject to public review and comment and

incorporated in the program regulations. This

would lend predictability and stability to the environmental lease exchange option, improve public

and industry understanding of exchanges and

thus the effectiveness of public participation, and

would reduce the probability (i.e., risk) that

environmentally sensitive tracts would be developed.

OPTION 9: Evaluate policies and procedures

for leasing on split estate and

checkerboard lands

Split estate lands (in which BLM owns the mineral rights but not the surface) and checkerboard

lands (where the Federal Government owns

every other section in a “checkerboard” pattern)

pose the most complex leasing situations. Based

on the implementation of the leasing program to

date on split estate (and checkerboard) lands, the

process does not work the way it was intended

in these areas. Resources that should be protected on Federal lands during land use planning

do not appear to be valued as highly when they

occur on private surface. Surface owners are able

to block data collection and leasing entirely, but

do not seem to have an equivalent ability to promote decisions in favor of Ieasing. Moreover,

comprehensive areal land use planning and the

control of post-mining land uses are extremely

difficult in areas where BLM is not the surface

manager. These problems are compounded

when the Federal Government is the minority

landowner. For instance, in the North Dakota

portion of the Fort Union Region, the Federal

Government owns less than 1 percent of the surface and only up to 13 percent of the mineral estate. Figure 5 illustrates this situation on one potential lease tract in Fort Union.

As a result of these and other concerns, it is

OTA’s view that a thorough reexamination of

the coal leasing process on split estate lands is

merited. State representation and public participation are essential to the credibility of any program established to evaluate leasing on split estate and checkerboard lands, and one means of

performing this evaluation would be through a

working group or Task Force of the RCTs in regions where split estate or checkerboard lands

raise concerns about the effectiveness of the Federal coal leasing program.

OPTION 10: Establish uniform procedures for

environmental evacuation of PRLAs

The environmental evaluation process for

PRLAs is subject to many of the same problems

identified 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.
30 • Environmental Protection in the Federal Coal Leasing Program

for competitive lease sales, but with PRLAs the

concerns are more pressing because the PRLA

program does not require the formal application

of all of the environmental screens that are part

of pre-lease planning for competitive lease

tracts. * As a result, environmental protection

must be achieved largely through mitigation requirements (lease stipulations and permit conditions). In addition, the program regulations were

revised in 1982 to eliminate requirements for environmental data and analyses in initial showings

for PRLAs. Establishing uniform procedures for

*The unsuitability criteria are applied to PRLAs either during land

use planning (if the PRLA can be processed in the normal cycle

of land-use planning) or during environmental analysis. If the PRLA

is incorporated in land use planning, the multiple-use screen also

would be applied.

environmental evaluation of PRLAs would help

improve the quality of such evaluations, ensure

consistency among regions (currently lacking),

and provide greater predictability to the program.

The relation between the number of PRLAs in

a region and the need for new production tracts

to meet regional leasing rates also needs to be

evaluated. For example, PRLAs in the San Juan

River Region are estimated to contain one-half

to two-thirds of the surface minable coal. Processing these PRLAs could reduce the need for

competitive leasing in that region. Thus, that

processing should be included as an alternative

to competitive leasing in regional lease sale EISs,

as well as be subject to an independent environmental assessment.
Chapter 3

The Federal Coal Management Program
Chapter 3

The Federal Coal Management Program

The Federal coal management program was developed in the legislative context of statutes that

specifically address the leasing of federally owned

coal as well as those related to public land management and environmental protection in general. These include the Federal Coal Leasing

Amendments Act of 1976 (FCLAA), the Federal

Land Policy and Management Act of 1976 (FLPMA),

the Surface Mining Control and Reclamation Act

of 1977 (SMCRA), the National Environmental

Policy Act of 1969 (N EPA), the Clean Air and Water Acts, and numerous other “environmental”

laws.

In 1979, consensus was reached among the

participants in the leasing program debate on the

elements of an environmentally (and economically) sound program. The Department of the interior (DOI) incorporated these elements in regulations implementing FCLAA and FLPMA in July

and August 1979. In 1982 and 1983, these regulations were revised to reflect a shift in departmental policy toward making more coal available

for lease, to eliminate duplicative requirements

and those DOI felt were not well understood, and

to streamline the process in order to facilitate

lease sales. While the basic program structure

described below is essentially the same under

both the 1979 and 1982 programs, some of the

1982 changes were sufficiently different from the

1979 rules as to severely weaken the earlier consensus.

This chapter describes the legal and regulatory

context for planning and environmental assessment in the Federal coal management program.

The chapter reviews the applicable statutes and

regulations, describes the basic program elements, outlines the major differences between

the 1979 and 1982 programs, and analyzes the

implications of those differences for the leasing

program’s ability to assure the development of

leases in an environmentally compatible manner.

The following chapter discusses specific issues

that have arisen about the implementation of the

environmental protection aspects of the leasing

program, in five Western coal regions (see fig. 1

in ch. 1). While this chapter focuses on leasing,

it also briefly describes the basic elements of the

broader coal management program, especially

the surface mine permitting requirements.

THE COAL LEASING PROGRAM

Between 1920 and 1970, Federal coal was

leased on demand; i.e., wherever and whenever

anyone requested a lease sale or permit. In 1970,

a Bureau of Land Management (BLM) study found

that although the amount of Federal coal under

lease had increased dramatically during the

1960’s, production from Federal leases had declined significantly (1). That study ultimately led

to a moratorium on further leasing of Federal

coal, and DOI began developing an improved

long-term coal leasing program (see ch. 1).

Congressional hearings, public debate, and several lawsuits in the 1970’s focused on whether

Federal coal leases were being held for speculation, and whether enforcement of lease conditions of diligent development and continued operation was effective. Other aspects of the debate

surrounding the elements of a new leasing program involved its compatibility with planning for

public land management and with environmental

laws and regulations (see ch. 1).

These efforts culminated, in 1976, with enactment of the FCLAA and the FLPMA. FCLAA repealed the noncompetitive preference right leasing system (see below) and required that all new

leases be issued competitively; provided that no

bid can be accepted for less than the fair market

value of the lease; facilitated the consolidation

33
34 • Environmenftl Protection in the Federal Coal Leasing Program

of leases into logical mining units for maximum

economic recovery; and required diligent development and continuous operation on each lease.

Of particular relevance to environmental protection is section 3(a) of FCLAA, which requires

that lands considered for leasing shall have been

included in a comprehensive land use plan and

that lease sales be compatible with that plan. The

comprehensive land use planning procedures developed by DOI to implement section 3(a) of

FCLAA are based on the mandates in FLPMA.

In FLPMA, Congress established national policy requiring a multidisciplinary and comprehensive Iand use planning process that maintains an

up-to-date inventory of public land resources, giving priority to the designation and protection of

areas of critical environmental concern; projects

all potential future uses of public lands and

resources (not just coal development); and identifies opportunities for the development or conservation of particular resources, considering the

relative scarcity of the resource values involved

and the availability of alternative means for realization of those values. This land use planning

is to be guided by the principles of multiple use

of lands and resources, sustained yield of renewable resources, and conservation of depletable

resources. In addition, FLPMA requires public

land management to protect the quality of scientific, scenic, historical, environmental, air, and

water, and archaeological values, including

“areas of critical environmental concern”; to preserve certain lands in their natural condition; to

provide food and habitat for fish and wildlife and

domestic animals; and to provide for outdoor

recreation and human occupancy and use (43

USC 1701 (a)(8)). Planning activities must be coordinated with those of other Federal, State, and

local agencies; and must afford the public adequate opportunity to comment upon the management of public lands.

Based on these general planning mandates, the

Federal coal leasing program was structured

around an initial comprehensive land use planning process which applies to all Federal lands

and all resources on those lands, followed by

“activity” planning for the development of federally owned coal resources. Figures 6 and 7 illustrate the leasing process under the 1979 and

1982 programs, respectively. The leasing program

applies to new production tracts, bypass tracts

(a {ease needed to prevent leaving “islands” of

unmined coal), and maintenance tracts (needed

to continue operations at an existing mine). In

addition, some aspects of the program apply to

leases issued before 1976 and to leases issued

under the noncompetitive preference right leasing system (see below).

A decision to offer a tract for lease is made in

the context of a “tiered” system of planning and

analysis, in which the level of analytical detail increases over time, while the area being evaluated

decreases (see fig. 2 inch. 2). Thus, early in the

process when few data are available, large land

areas are classified according to their relative

value for development of the full range of resources. Lands that are identified as potentially

suitable for coal leasing at this stage are then subjected to increasingly detailed analyses as the

lands move closer to actual coal development.

The most detailed analysis prior to mine development occurs after a lease has been issued,

when the lessee files an application for a surface

mining permit, supported by an exhaustive proposed mining and reclamation plan. This final

stage in the tiered system reflects the limited Federal agency resources by placing the burden for

the most detailed data collection and analysis requirements on the lessee. Environmental protection measures after a mine is opened include inspection and enforcement to ensure that mining

and reclamation are in compliance with the permit and approved plan.

Land Use Planning

The principal objective of the land use planning process is to establish a multiple resource

use management strategy for each of the “planning units” set up by DOI for the administration

of public lands. * This is accomplished through

*It should be noted that many of the land use planning requirements described below also apply to other agencies who manage Federal lands overlying coal deposits (e.g., the U.S. Forest Service). The land use planning schedules and priorities within these

agencies need to be coordinated closely with BLM’s planning for

lease 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)
36 ● Environmental Protection in the Federal Coal Leasing Program

Figure 6.-1979 Coal Leasing Program-Continued

Sales Procedures

(From activity planning)

1

SOURCE: Bureau of Land Management, Federal Coal Management Program,

Final Environmental Statement, April 1979.
o

I

Land use planning

Figure 7.—Current Coal Leasing Process

Activity planning

I
38 ● Environmental Protection in the Federal Coal Leasing Program

Figure7.—Current Coal Leasing Process-Continued

I
Figure 7.—Current Coal Leasing Process-Continued

7

1 1

I

I

Development

I

SOURCE: Bureau of Land Management.

●
40 . Environmental Protection in the Federal Coal Leasing Program

identification of all potential land uses and of opportunities for the development of particular

resources based on their relative values (see fig.

7). Coal development is one possible land use,

and, during land use planning, four screens are

used to identify the acceptability of public lands

for further consideration for coal leasing. These

screens focus on coal development potential, the

environmental acceptability of lands for mining,

multiple use management, and surface owner

preferences about mining (where BLM does not

own the surface). Based on the results of the application of these four initial screens, lands determined to be acceptable for further consideration

for coal development are carried forward into

activity planning for leasing.

Land use planning is preceded by a certain

amount of in-house planning by BLM staff, who

review basic procedures; identify issues and estimate their relative significance; perform literature

searches and organize data available in-house;

make initial contacts with other affected agencies and organizations; analyze a range of possible regional coal production targets; etc. Based

on these and other tasks, BLM field personnel estimate the time needed to complete land use and

activity planning and prepare for a lease sale. The

field staff’s recommendations on scheduling are

reviewed and passed on to the Secretary, who

establishes a lease sale target schedule. All BLM

personnel and other affected agencies are expected to adhere to this schedule throughout the

leasing process (see discussion of “Regional Leasing Rates” in ch. 4).

The coal development screen begins with an

announcement to the coal industry, the public,

other Federal agencies, State and local governments, and Indian Tribes, calling for information

identifying major issues related to resource use

and protection within a BLM planning unit. This

initial, general call. for information is supplemented by a formal solicitation (through a Call

for Coal Resource Information) of industry “indications of interest” in leasing coal and industry information on coal resource development

potential (43 CFR 3420.1-2(a)). Based on the responses to these requests for information, lands

are categorized according to their coal development potential (based on such factors as quality

of coal, depth of seam, thickness of overburden,

etc.) and lands with no such potential are not

considered further for leasing (43 CFR 3420.1-4

(e)(l)).

This screening procedure has been criticized

because the 1982 regulations allow lands with a

“low” coal development potential to be carried

forward along with those having moderate to

high potential. Low development potential lands

would have been screened out under the 1979

regulations. Including such lands in later analyses expands BLM’s workload because more land

would then have to be analyzed in subsequent

stages of land use and activity planning. Furthermore, if lands with low coal development potential are leased, it could result in inefficient mining

and increase the risk of adverse environmental

impacts in some areas because more surface

acres would have to be disturbed per ton of coal

extracted. Under other circumstances, however,

lands with low development potential could be

favorably located with regard to transportation

or could be needed to complete a logical mining unit. The inclusion of low coal development

potential lands also could promote flexibility to

adjust to changing market conditions and mining technologies. Where these factors are present, carrying such lands forward for further analysis seems reasonable.

The acceptability of lands for mining is assessed based on 20 criteria described in the program regulations. Several of these criteria were

mandated or suggested in SMCRA, several embody requirements under other Federal statutes

which DOl chose to enforce through the unsuitability criteria review process (e.g., the Endangered Species Act), and some DOI selected

on the basis of its judgment of their merits. Each

of the criteria is applied to all coal lands identified in the land use analysis as having development potential. If one or more criteria are found

to apply in a particular area, exceptions and exemptions to the applicable criteria are analyzed

to see if they pertain. If they do not, the land

either will be considered unsuitable for further

consideration for leasing, or other mitigation requirements will be imposed through proposed

lease 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 system (e.g., National Parks, Wildlife Refuges,

Trails, Wild and Scenic Rivers, Recreation

Areas, Wilderness Areas);

lands within rights-of-way or easements;

lands within 100 ft of cemeteries and rightsof-way for public roads, or within 300 ft of

public and residential buildings;

wilderness study areas, while under review

for wilderness designation;

Class I scenic areas;

lands used for scientific studies involving

food or fiber production, natural resources,

or technology demonstrations and experiments;

publicly owned places on Federal lands

which are listed on the National Register

of Historic Places;

lands designated as natural areas or as National Natural Landmarks;

federally designated critical or essential

habitat for threatened or endangered plant

and animal species;

lands containing habitat considered critical

or essential for State-designated threatened

or endangered plant and animal species;

bald or golden eagle nests or sites, including appropriate buffer zones that consider

habitat for prey species;

bald and golden eagle roost and concentration areas used during migration and

wintering;

falcon cliff nesting sites and appropriate

buffer zones that consider prey species’

habitat;

high priority habitat for migratory bird

species of high Federal interest on a regional or national basis;

essential habitat for resident fish and wildIife species of high interest to the State (e.g.,

active dancing and strutting grounds for

sage grouse, sharp-tailed grouse, and prairie chicken; critical winter ranges for deer,

antelope, and elk; and migration corridors

for elk);

lands in riverine, coastal and special flood

plains (100-year recurrence);

17.

18.

19.

20.

lands committed by the surface management agency to use as municipal watersheds;

natural resource waters identified in State

water quality management plans and a buffer zone of one-quarter mile from the outer

edge of the far banks of the waters;

alluvial valley floors (AVFs) considered important for agriculture, or land outside an

AVF if mining would materially damage surface or underground water systems that

supply the AVF; and

lands deemed unsuitable by criteria proposed by a State and adopted by the Secretary of the Interior in rulemaking.

These criteria apply primarily to lands evaluated

for leasing for surface mining since 1976 (i.e., after

passage of FLPMA and FCLAA), subject to the exemptions and/or exceptions described below. In

addition, the unsuitability criteria are applied to

preference right lease applications (PRLAs), either

during land use planning (if the PRLA is included

in a comprehensive land use plan) or during environmental analysis (43 CFR 3430.3-1). The unsuitability criteria also are applied to lands that

will be mined by underground methods, but the

criteria cannot be used to declare such lands unsuitable for mining unless surface operations and

impacts will affect Federal lands to which a

criterion pertains (43 CFR 3461 .2).

In the 1979 regulations, the criteria also were

applied to tracts leased before 1976 but not yet

being mined, either as part of the normal landuse planning process or during mine plan review.

This requirement was eliminated in the 1982 regulations, and such lands now are reviewed for

suitability only under the mandatory suitability

provisions of SMCRA (43 CFR 3461 .4-2). The Department argues that this change merely eliminated a duplicative set of requirements and is in

accord with current policy to interfere as little as

possible with “valid existing rights” and to expedite the planning for new lease sales (4). However, the change is being contested in court because the suitability review required under

SMCRA for mine plan review may not be as rigorous as under the 20 criteria, possibly resulting
42 ● Environmental Protection in the Federal Coal Leasing program

in inadequate consideration of the multiple resource use implications of coal development in

land use plans (see discussion of “Unsuitability

Criteria” in ch. 4).

The unsuitability criteria also are subject to exemptions and/or specific exceptions. General exemptions applicable to several criteria include:

lands subject to valid existing rights (criteria #l,

#3, #4 (limited)); lands to which the operator

made substantial legal and financial commitments

prior to January 4, 1977 (all except criteria #3,

#4, and #19); surface coal mining operations existing on August 3, 1977 (all except criterion #4

and #7); and lands for which a mining permit has

been issued (all but #3, #4, and #7). All criteria

except #4, #5, #6, #15, #16 and #l 9 also are subject to one or more specific exceptions. For example, the exceptions to criterion #l 1 state that

a lease may be issued if stipulations can ensure

that eagles are not disturbed during the breeding

season, or if the Fish and Wildlife Service determines that the nest(s) can be moved; and the size

of a buffer zone can be decreased if active eagle

nests will not be affected adversely (see discussion of “Mitigation Requirements” in ch. 4).

In the 1982 regulations, additional exemptions

were added to seven of the unsuitability criteria.

Furthermore, the general applicability of the exceptions was expanded. The 1979 regulations

specified that exceptions should only be considered for areas where there is only one unsuitability condition. The 1982 regulations expanded

this to areas where one or more unsuitability conditions exist (43 CFR 3461 .3-1 (a)(l)). The combined effect of these expansions is to make it less

likely that an area will be excluded from further

consideration for leasing based on the unsuitability 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 Federal lands that were included or eligible for listing

in the National Register. This criterion is now

limited to publicly owned sites on Federal lands

that are listed. Thus, privately owned sites are no

longer protected, yet protection of such sites

was one rationale for establishing the National

Register.

It should be noted that neither the 1979 nor

the 1982 regulations include an unsuitability

criterion based on the reclaimability of coalbearing lands. Such a criterion was considered

early in the development of the 1979 leasing program, but was dropped because there is an affirmative legal burden (under SMCRA; 30 U.S.C.

1260(b)(2))) on an applicant for a mining and

reclamation permit to demonstrate that reclamation is technologically and economically feasible,

(2). Thus, the regulations implementing the leasing program assume that this requirement will be

met during review of the permit application by

the Office of Surface Mining or the State permitting agency (see ch. 4).

The multiple resource use screen is intended

to eliminate lands from further consideration for

coal leasing if other resources on those lands are

determined by BLM to be locally important or

unique. In general, a multiple-use tradeoff is

appropriate when one land use (e.g., mining)

would absolutely preclude other valuable resource uses which are not covered by the 20 unsuitability criteria (43 CFR 3420.1-4(e)(3)). BLM

only infrequently uses the multiple-use screen to

eliminate lands from further consideration for

leasing. According to the Bureau, this is because

lands that might be subject to a multiple-use

tradeoff usually already will have been eliminated

for other reasons (e.g., determination of no coal

potential, application of an unsuitability criterion)

(4). However, where multiple-use tradeoffs might

be appropriate, critics of the leasing program contend that BLM generally tends to assign coal development a higher priority than competing land/

resource uses.

The surface owner preference screen requires

that coal resources underlying privately owned

surface not be considered for surface mining if

a significant number of the surface owners object to leasing during the initial consultation with

BLM. If underground mining is technically or economically infeasible, the land could still be considered for leasing, but it must be assigned a low

priority in ranking compared to lands without surface owner conflicts (43 CFR 3420.1-4(e)(4)). Final

surface owner consents are not obtained until the

end of activity planning.
Ch. 3—The Federal Coal Management Program ● 43

Two additional concerns have arisen about the

current land use planning process: the timing of

the application of the four screening procedures,

and the elimination of a discretionary fifth screening procedure based on a “threshold” analysis

of cumulative impacts (compare the land use

planning portions of figs. 6 and 7). The 1979

regulations specified that the four screens be

applied sequentially, in the order listed above.

Sequential application of the screens was consistent with the concept of a tiered system of analyzing lands, in which increasingly stringent environmental tests would be applied at each step

of the leasing process. The 1982 regulations allow

these four screening procedures to be applied

simultaneously. Although the screens still are applied, there is concern that scarce BLM time and

staff resources will be diluted evaluating (for example) surface owner preferences over a larger

land area than might have been necessary if the

other three screens had been applied first and

in sequence.

The 1979 regulations also included a fifth, discretionary, screen that employed critical threshold levels of cumulative impacts from the development of more than one mine within an area.

If threshold levels were set, and if it was determined during land use planning that mining on

all potential tracts would mean that such a level

would be reached, BLM was required to halt, suspend, or condition further consideration of the

affected area for leasing. This screen was dropped

in the 1982 regulations because it had never been

used (4). The BLM District Managers may still include critical threshold levels as one factor to be

considered in the formulation of the land use

alternatives that will be analyzed during land use

planning (43 CFR 1601 .5-4(a) (9)). However,

threshold levels of cumulative impacts relative to

coal development are not required to be considered until the lease sale EIS is prepared (see

below).

The threshold concept had long been a source

of confusion and had “not proven practical for

land use managers” (4). The threshold concept

could be a valuable tool in both land use planning and tract ranking if it were reinstated in the

regulations for these stages of planning and assessment. In doing so, BLM should make every

effort to understand the concept and how it could

be expressed in regulations in a workable and enforceable manner. Issues related to threshold

analyses are discussed further in the “Data and

Analysis” section of chapter 4.

The product of land use planning under FLPMA

is a document called a “resource management

plan” (RMP), which is to be distinguished from

the “management framework plans” (MFPs) developed before enactment of FCLAA and FLPMA.

RMPs are required, under FCLAA/FLPMA, to

identify and protect Areas of Critical Environmental Concern (ACECs); include sufficient opportunities for public participation; incorporate

the inventorying of public land resources; evaluate resources from local, regional and national

perspectives; identify conflicts in resource values

and uses; and develop and analyze alternative

land/resource use proposals that resolve conflicts

through decisions on multiple-use tradeoffs. To

fulfill the latter requirement, in particular, RMPs

include a full EIS on resource management alternatives, and the NEPA process thus is built into

land use planning decisions from the start, rather

than coming only at the end of activity planning

(the second stage in the leasing process) (43 CFR

1601 .7-3).

Preparation of new comprehensive RMPs is a

lengthy process, and a key issue raised by the

leasing program is the continued reliance on

amended MFPs, as a basis for land use and activity planning for coal leasing while new RMPs are

developed. Due to DOI’s concerns about the old

MFPs’ compliance with FCLAA/FLPMA and their

ability to support planning to match current and

anticipated resource demands, the 1979 regulations set a deadline of December 31, 1984, on

the use of old MFPs in land use planning for new

Federal coal lease sales (43 Fed. Reg. 58764). Prior

to that date, those regulations allowed leasing

based on an MFP only if it had been amended

or updated to comply with the land use planning

standards established in FCLAA/FLPMA.

The deadline for the completion of new RMPs

as comprehensive land use plans to guide leasing decisions was eliminated in the 1982 regulations, due to BLM’s need to allocate time, staff,

and funds to implementing the leasing program.
44 . Environmental Protection in the Federal Coal Leasing Program

BLM currently is working on RMPs in some planning areas, but RMPs for coal leasing areas were

not completed in time to support first round lease

sales, and may not be available to support the

planning for sales that will occur within the next

couple of years, even though the legislation mandating their preparation was approved over 7

years ago.

Moreover, as discussed in chapter 4, detailed

regulatory guidelines for judging the acceptability

of an amended or updated MFP for new competitive leasing (including those requirements listed

above) were deleted and replaced with a general

policy statement that BLM could continue to rely

on amended or updated MFPs as long as they are

“in compliance with the principle of multiple use

and sustained yield and shall have been developed with public participation and governmental

coordination, but not necessarily precisely as

prescribed by §§ 1601.3 and 1601.4 of [43 CFR]”

(43 CFR 1601 .8( b)(l)). According to DOI this

change was part of the overall effort to eliminate

duplicative regulatory requirements and reduce

administrative costs (4). However, this change in

the program also contributed to public uncertainty about the program’s ability to ensure environmental compatibility.

Several studies, including a 1981 General Accounting Office report, entitled Minerals Management at the Department of Interior Needs Coordination and Organization, have found many

MFPs to be deficient with regard to compliance

with current land use planning laws. An exhaustive analysis of the legal adequacy of updated and

amended MFPs to support planning for coal leasing was beyond the scope of this project. However, regardless of whether updating or amending

MFPs brings them within the specific regulatory

requirements, it is OTA’s judgment that such

amended plans cannot provide the sort of comprehensive “fresh-start” planning envisioned by

the legislation, especially areawide resource

management planning based on the evaluation

of alternatives in an EIS (as opposed to the current program, in which an EIS is prepared only

during activity planning). On the other hand,

where updated or amended MFPs are legally adequate, replacing them with RMPs would leave

BLM open to charges of “planning for planning’s

sake” —something the Bureau frequently has

been accused of in the past.

Activity Planning and Lease Sales

After general resource planning for a management area is complete, subsequent planning focuses on a specific activity-in this case coal leasing. Like land use planning, activity planning is

predicated on a tiered system of increasingly

detailed reviews of smaller and smaller groups

of tracts. As shown in figure 7, activity planning

for a region culminates in a Secretarial decision

on the tracts and tonnages to be offered for lease

and the schedule for lease sales in that region.

Information from land use planning about

areas’ acceptability for mining, plus formal industry expressions of interest in particular areas, are

used to develop initial draft leasing levels and to

delineate tracts. States and the public also may

suggest coal land they deem particularly acceptable or unsuitable for leasing. When proposed

tracts have been delineated, BLM field staff conduct a site-specific analysis (SSA) of the full range

of environmental, social, economic, and other

resource values on each tract. The SSAs provide

the basis for detailed tract profiles, which are used

to select combinations of tracts for analysis in the

EIS (see below). DOI may establish the final regional leasing level at any time after the call for

industry expressions of interest but before the

selection of EIS alternatives (43 CFR 3420.3 et

seq.).

The SSA generates the greatest level of detail

of information about a tract available to DOI

before a lease sale. According to the programmatic EIS for leasing, “the information . . . must

be sufficiently detailed so that the Department

would be reasonably certain that the lease would

be economically and environmentally acceptable, but in less detail than would be required

of a lessee at the time a mining plan would be

approved” (2). For example, the hydrologic analysis in a tract profile could be based on field

sampling pursuant to a scaled indexing system;

the cultural resource assessment could incorporate a comprehensive literature search for

known resources (or a 10 to 25 percent field

survey in areas about which no data are avail-
Ch. 3—The Federal Coal Management Program . 45

able). In practice, however, time, staff, and

budget constraints have meant that these levels

of data have not always been achieved on tracts

analyzed for recent lease sales (see discussion of

“Data and Analysis” in ch. 4).

Following preparation of the tract profiles, the

Regional Coal Team (RCT)* ranks tracts according to their acceptability for leasing after considering factors such as coal economics, impacts on

the natural environment, and socioeconomic impacts (43 CFR 3420.3-4). Tract rankings and SSAs

do not necessarily affect tract delineation,

although tract boundaries can be adjusted as the

results of SSAs or tract rankings, or tracts may be

dropped altogether at this stage.

The RCT uses these rankings to select at least

one combination of tracts that approximates the

regional leasing level, plus tract combinations

representing alternative leasing levels. These must

include a “preferred alternative” that optimizes

the economic and resource benefits of leasing

and minimizes the social and environmental

costs. The RCT may adjust the tract ranking and

select tracts to reflect a variety of considerations,

including the compatibility of coal quality, coal

type, and market needs (including industry expressions of interest); environmental and socioeconomic impacts; the compatibility of reserve

size and demand distribution for tracts; public

opinion; avoidance of future emergency lease

situations; and special leasing opportunity requirements (43 CFR 3420.3-4(b)(2)). (Although the

revised leasing regulations only require the RCT

to select one combination of tracts that meets the

regional leasing level, NEPA mandates the consideration of alternatives to a proposed action, and,

in practice, the RCTs usually select several combinations of tracts.) As discussed in chapter 4,

some opportunities for public and interest group

participation are afforded throughout tract ranking, the selection of alternatives, and the development of leasing levels.

*The Regional Coal Team is a DOI/State organization made up

of a representative of the Governor from each State in the region

and the BLM State Director from each State involved. Each RCT

is chaired by a BLM State Director from a nonaffected State (see

ch. 4 for a detailed discussion of the role of RCTs).

The environmental impacts of the leasing alternatives, including the preferred alternative, are

then assessed in detail in an EIS (see discussion

of environmental protection, below). A draft EIS

is published, and after public comment and interagency review, is revised and issued as a final EIS.

As a part of the tiered system, the data and analyses needed to prepare the EIS expand on the

information in the SSAs and tract profiles, but

focus on particular combinations of tracts. Lease

stipulations to protect environmentally sensitive

areas may be proposed in the EIS (see “Mitigation

Requirements” in ch. 4).

Following publication of the final EIS, written

surface owner consent is confirmed, and the Secretary begins formal consultations with the affected State Governors and the surface management agency prior to approving a combination

of tracts and tonnages to meet a regional leasing

level and establishing final dates for maintenance,

bypass, and new production tract lease sales.

Then DOI issues a notice of lease sale, performs

the economic evaluation, and holds the sale.

The major issues posed by the activity planning

for recent lease sales are the lease sale rates–or

the ratio of regional leasing levels and lease sale

schedules—and the ability of the tract rankings

and selection of alternatives to reflect data inadequacies and cumulative impacts. These issues are

discussed in detail in chapter 4.

Post-Leasing

After a lease is issued, but before coal mining

may begin, lessees must submit a detailed permit application, including a mining and reclamation plan, either to the State permitting agency

(in States with approved programs under SMCRA)

or to the Office of Surface Mining, or, where the

mine would involve Federal lands, to both. Preparation and review of the mine plan and permit

application is the last step in the tiered system

of environmental assessment in the Federal coal

management program. At this stage, extensive

tract-specific data and analyses are provided by

the permit applicant and the proposed methods

of mining and reclamation, the potential environmental impacts, and the recommended impact
46 ● Environment/ Protection in the federal Coal Leasing Program

mitigation techniques are described in detail. For

instance, tract-specific cultural resource analyses

in support of a mine plan might be based on a

100 percent inventory in areas where such resources are considered important (e.g., the San

Juan River Region). Recommended techniques

to mitigate the potential adverse environmental

impacts of mining are derived from these extensive data bases and analyses and, if not already

covered by lease stipulations, are included in the

mine plan or in permit conditions (see “Mitigation

Requirements” in ch. 4). If the potential impacts

of issuing a permit are considered significantly

different from those projected when the lease was

issued, an EIS also is supposed to be prepared

at this stage.

Once a mine pIan and permit application are

approved, construction of a coal mine may begin.

The permitting agency has the authority to refuse

to issue a permit for environmental or other reasons, but in practice, decisions at this stage are

intended primarily to accommodate mining, and

no tract has ever been denied a permit, although

portions of tracts have been excluded from mining, and in a few instances permit applications

have had to be submitted more than once before

being approved. Following the onset of mine development, compliance with the terms of leases

and and permits is monitored through inspection

and enforcement programs.

As noted previously, analysis of the adequacy

of environmental protection measures after a

lease is issued was beyond the scope of this assessment. However, several recent reports have

been critical of the ability of permitting and enforcement programs to ensure adequate environmental protection. Such criticism reflects on the

adequacy of the leasing program due to the extent to which final decisions on impact mitigation

are deferred from the leasing program to the permit stage and beyond (see “Deferral of Decisionmaking” in ch. 4).

PREFERENCE RIGHT LEASE APPLICATIONS

The Mineral Leasing Act of 1920 originally established two leasing mechanisms: competitive

bidding for lands known to have commercially

valuable coal deposits, and preference right leasing for unexplored areas. Under the preference

right leasing system, exclusive prospecting permits could be converted to leases if commercial

quantities of coal were discovered. FCLAA ended

the preference right leasing system (except for

lease applications and prospecting permits that

were in effect on passage of the act) on the basis

that it did not grant the public a “fair return” on

coal. Most of the preference right lease applications (PRLAs) were not processed during the leasing moratorium of the 1970’s. The 1979 and 1982

program regulations set a deadline of December

1984 for their final disposition. Currently, about

133 PRLAs are still pending–many since the late

1960’s.

The PRLA system was effective in encouraging

exploration of undeveloped Federal coal lands

at industry’s expense. Prospecting permits allowed the applicant, at his own expense, to conduct exploratory drilling to determine if the permitted lands contained “commercial quantities”

of coal. Thus, the PRLA system not only enabled

the Federal Government to determine the “existence” or “workability” of Federal Western coal

deposits, it also served the interests of industry

by guaranteeing a lease to a company or prospector who discovered commercial quantities of coal

in the permit area. However, as noted above, the

system was criticized for not providing a fair return on Federal coal leases and was abolished in

1976, 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 information

about the nature, existence, and environmental

setting of coal deposits discovered during the 2-

or 4-year period covered by the prospecting permit (43 CFR 3430.2-1). BLM then analyzes the application in detail, and prepares either an environmental assessment (EA) or a full EIS. The

second or “final showing” is to demonstrate that

the tract contains commercial quantities of recov-
Ch. 3—The Federal Coal Management Program ● 47

erable coal. In determining the potential for profitable mining, BLM must consider comprehensive information on estimated revenues and all

costs, including those related to compliance with

environmental laws, in addition to mining and

transportation costs (43 CFR 3430.4). If the standard of commercial quantities (and other requirements of the Mineral Leasing Act) is met, the

courts have held, in NRDC v. Berklund, that a

lease must be issued (6). The Court added, however, that the costs of meeting environmental protection requirements should be considered when

applying the commercial quantities test and that

preference right lease issuance procedures must

comply fully with NEPA, including the preparation of EAs or EISs.

Under the current DOI program for environmental analysis of PRLAs, they are not necessarily

subject to all of the four screens applied to potential competitive leases during land use planning. The unsuitability criteria must be applied

to PRLAs either during the normal course of land

use planning (if the PRLA can be processed on

the same schedule as a comprehensive land use

plan) or during environmental analysis. The multiple-use screen only is applied if the PRLA can

be processed during the normal cycle of land use

planning (43 CFR 3430.3-1).

The combined effect of the Berklund decision

and the DOI procedures for processing PRLAs

means that environmental protection in the development of mines on PRLA tracts must be obtained through mitigation requirements in lease

stipulations and/or permit conditions (see ch. 4).

As with a lease issued competitively, approval of

a PRLA does not constitute a right to mine, and

the lessee still must obtain a surface mining permit based on a mining and reclamation pIan.

The stipulations imposed on a PRLA can have

a significant impact on its development potential. Final showings must reflect the effects that

proposed lease stipulations are expected to have

on the “commercial quantities” test. In San Juan,

the first lease stipulations for PRLAs were developed as a result of the draft Environmental Assessment for Coal Preference Right Leasing in spring

1981. More stipulations were developed and the

earlier ones refined when PRLAs were incorporated in the second regional draft EIS in fall 1983

(5). AS a result of these stipulations, industry has

been required to revise its proposed mine designs

and the “final showings” based on them. Consequently, all showings submitted to date may

be considered preliminary, and BLM may request

new “final showings” based on the current stipulations (3). Further revisions could be possible

as additional data on environmental compatibility

are collected within the region (which has not

yet held a first round lease sale). BLM has determined that approximately 45 percent of the area

covered by the 26 PRLAs pending in San Juan is

acceptable for surface mining (5), but controversy

surrounds the six PRLAs that underlie Wilderness

Study Areas (WSAs) (see fig. 8).

While many legal, administrative, and procedural issues related to the PRLAs have been addressed by DOI and the courts, a number of new

questions are likely to arise as the applications

are processed. It is clear that the amount of annual coal production from PRLAs could be substantial. However, in recent years, environmental

assessment and planning for PRLAs has engendered a considerable amount of controversy.

Much of the debate focuses on what critics

perceive as the failure of the present PRLA processing system to give full consideration to environmental values. Because there was no comprehensive land use planning mandate when PRLAs

were issued, they would only be analyzed in the

context of such plans if they are included in current planning efforts. Yet the program regulations

(both the 1979 and 1982 versions) allow BLM to

process PRLAs outside the cycle of ongoing comprehensive land use plans if including them in

a plan would mean delaying their processing beyond December 1, 1984.

This land use planning exemption, coupled

with the lack of pre-lease screening procedures

(except for the unsuitability criteria), raises doubts

about the ability of the PRLA program to minimize the environmental risk of issuing preference

right leases. As in other instances where final

decisions on environmental protection and impact mitigation are deferred to the mine plan

stage, considerable doubt surrounds the willingness of regulatory agencies to deny a permit

rather than accommodate mining decisions.
48 ● Environmental Protection in the Federal Coal Leasing Program

I

I

1

I

t

I

I

I
Ch. 3—The Federal Coal Management Program • 49

A second source of controversy is the differences in specificity between the 1979 and 1982

regulations about the contents of environmental

reviews required to comply with the Berklund

decision. The 1979 regulations required applicants, as part of their “initial showing,” to provide a brief description of existing land uses on

and adjacent to the PRLA; known geologic, visual, cultural, or archaeological features on the

tract; and known wildlife habitat and habitats of

threatened or endangered plant and animal species that may be affected by mining operations.

Moreover, the 1979 program required an initial

showing to include a brief description of planned

measures to prevent or control fire; to mitigate

or prevent soil erosion, ground and surface water pollution, damage to wildlife or its habitat, air

and noise pollution, hazards to public health and

safety, and impacts to the social and infrastructure systems of local communities; as well as a

description of any plans the applicant might wish

to submit pertaining to proposed reclamation

procedures. All of these requirements were eliminated in 1982, and replaced with a blanket statement authorizing the Department to request or

the applicant to submit any “information necessary to conduct an environmental analysis of the

proposed mining operation, formulate mitigating

measures and lease terms and determine commercial quantities” (34 CFR 343 C).2-l (d)).

The 1979 PRLA regulations also specified the

contents of EAs or EISs on PRLAs:

1.

2.

3.

4.

5.

an evaluation of direct and indirect potential impacts including cumulative impacts

on the physical and socioeconomic environment;

an evaluation of the technical and natural

potential for reclamation;

an evaluation of reasonable alternatives to

leasing, including exchange possibilities;

recommended lease terms and special lease

stipulations to prevent unacceptable environmental or social impacts; and

specific environmental protection or mitigation procedures.

In 1982, DOl eliminated these regulations, noting

that such standards would be dealt with through

internal agency memoranda and directives. To

date, three instruction memoranda concerning

PRLA processing and compliance with NEPA

have been issued. Although some BLM officials

feel that the requirements listed above are still

met during EA/EIS preparation, some field personnel argue that the departmental procedures

do not provide sufficient guidance.

The elimination of the guidelines for environmental showings and analyses during the processing of PRLAs has captured the attention of

environmental groups, who have threatened to

reopen the Berklund case. These groups contend

that environmental analyses to date have been

inadequate with regard to discussion of reclamation, water resources protection, and the impact

of leasing on wilderness areas. Furthermore, environmental groups argue that those analyses do

not include sufficient detail on mitigation techniques to assure environmental compatibility, do

not define specific lease stipulations, and fail to

investigate alternatives to leasing such as exchanges. Proponents of the current (1982) PRLA

program contend that the requirements for application of the 20 unsuitability criteria to all PRLAs,

preparation of an EIS or EA for all PRLAs, and inclusion of mitigation requirements in a final showing provide adequate environmental protection

prior to leasing–especially given the detailed

analysis at mine plan review.

An additional concern about PRLAs is their significance to regional leasing levels. For example,

in the San Juan coal region, PRLAs are estimated

to contain one-half to two-thirds of the surface

minable coal (5). In part because it was assumed

that the regional leasing level in the San Juan

Basin would reflect the large capacity of PRLAs,

BLM’s planning for competitive leasing in the region focused on a relatively limited area. The

unexpectedly high regional leasing level then required an accelerated regional planning effort.

This situation was compounded by BLM’s decision to include processing the PRLAs only as a

“no action” alternative in the first draft regional

lease sale EIS. That decision was criticized widely,

and partly as a result, a second draft EIS had to

be prepared which included issuance of the

PRLAs in the action alternatives considered. However, the recently issued draft EIS on the Powder
50 ● Environment/ protection in the Federal Coal Leasing Program

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

Since mid-1983, BLM has been reviewing its

PRLA processing procedures, in part in response

to the issues discussed above, but no additional

changes have been made to the regulations. Unless concerns about the adequacy of environmental assessment of PRLAs are resolved to the reasonable satisfaction of all parties, PRLA processing

probably will be stalled by its critics. This may

involve the preparation of EISs for all PRLAs.

Under the present discretionary provisions of the

regulations, BLM had planned to prepare EAs

(rather than EISs) in processing most PRLAs.

Among environmental groups, this was a cause

for concern because of the diminished scope,

preparation requirements, and public involvement required for EAs as compared with EISs. This

position has now changed, and the Bureau reports it is preparing EISs for “most” PRLAs (4).

Further, it may be necessary to require that all

PRLAs be incorporated in land use and activity

planning in order to ensure adequate environmental protection, even though the courts have

ruled that this is not necessary under present laws

and regulations. Consequently, congressional action may be required if further stalling of the processing of PRLAs is to be avoided.

ENVIRONMENTAL PROTECTION

In addition to the specific requirements of

FCLAA and FLPMA related to planning and environmental assessment, a wide range of other laws

provide the context against which environmental

compatibility is judged. Some of these laws are

incorporated in the leasing process directly (e.g.,

unsuitability criteria derived from the Surface

Mining Act, or the Endangered Species Act),

while others are addressed primarily during mine

plan review (e.g., Clean Air Act). These are listed

below. A more detailed discussion of the Surface

Mining Control and Reclamation Act, the National Environmental Policy Act, and the Clean Air

and Water Acts, and how they affect the Federal

coal Ieasing program may be found in appendix A.

●

●

●

Act of September 28, 1976: Provides for the

regulation of mining activity within, and to

repeal the application of mining laws to,

areas of the National Park System.

Antiquities Act of 1906: Regulates antiquities excavation and collection (including

fossil remains).

Archaeological and Historical Preservation

Act of 1974; Archaeological Salvage Act:

Provides for recovery of data from areas to

be affected by Federal actions; provides for

preservation of data (including relics and

specimens) at every Federal construction

project.

Bald Eagle Protection Act of 1969: Protects

bald and golden eagles.

Clean Air Act: Establishes air quality standards; sets requirements for areas failing to

meet standards; provides for prevention of

significant deterioration of air quality in

clean air areas; may require a Federal

permit.

Clean Water Act: Establishes water quality

goals and requires States to set standards for

meeting those goals; imposes effluent limitations on discharges from point sources; requires permits for discharges.

Endangered Species Act of 1973: Protects

endangered and threatened species and critical habitat affected by Federal actions; requires prior consultation with Fish and Wildlife Service.

Fish and wildlife Coordination Act of 1934:

Requires consultation about water resource

development actions that might affect fish

or associated wildlife resources.

Historic Preservation Act of 1966 (as

amended): Establishes systems of classifying

properties on or eligible for inclusion on National Register of Historic Places; mandates

Federal agency consultation with Advisory

Council and State historic preservation officers.
Ch. 3—The Federal Coal Management Program ● 51

●

●

●

●

●

●

Migratory Bird Treaty Act of 1918: Requires

enhancement and prevention of loss of

migratory bird habitats.

Multiple Use-Sustained yield Act of 1960:

Requires management of National Forests

under principles of multiple use so as to produce a sustained yield of products and

services.

National Environmental Policy Act of 1%9:

Makes environmental protection part of the

mandate of every Federal agency; requires

detailed environmental impact statements

for major Federal actions significantly affecting the quality of the human environment.

National Forests Management Act of 1976:

Provides for a comprehensive system of land

and resource management planning for National Forest System lands.

Noise Control Act of 1972: Requires publication of information on limits of noise required to protect public health and welfare;

preempts local control of railroad equipment and yard noise emissions.

Resource Conservation and Recovery Act:

Establishes guidelines for collection, transport, separation, recovery, and disposal of

solid waste.

●

●

●

●

●

Safe Drinking Water Act of 1977: Establishes mechanism for National Primary

Drinking Water Standards.

Soil and Water Resources Conservation Act

of 1977: Requires appraisal by Secretary of

Agriculture of information and expertise on

conservation and use of soils, plants, woodlands, etc.

Surface Mining Control and Reclamation

Act of 1977: Establishes performance standards for environmental protection in surface

mining operations; mandates State permit

programs to ensure performance standards

can be met; allows States to have primary

enforcement responsibility under approved

programs; requires States to establish procedures for designating areas unsuitable for

mining; requires surface owner consent on

split estate lands.

Wild and Scenic Rivers Act: Provides for

preservation of certain rivers or portions

thereof in their natural state.

Wilderness Act of 1964: Provides for establishment of wilderness reserves; requires

preservation of wilderness areas in an unimpaired condition.

CHAPTER 3 REFERENCES

1. Bureau of Land Management, U.S. Department of 4.

the Interior, Holdings and Development of Federal

Coal Leases, (Washington, D. C.: U.S. Government 5.

Printing Office, 1970).

2. Bureau of Land Management, U.S. Department of

the Interior, Final Environmental Statement, Federal

Coal Management Program (Washington, D. C.:

U.S. Government Printing Office, 1979). 6.

3. Bureau of Land Management, U.S. Department of

the Interior, Instruction Memorandum 83-822:

Processing of Coal Preference Right Lease Application (PRLA) Final Showing, Sept. 9, 1983.

Bureau of Land Management, U.S. Department of

the Interior, private communication to OTA.

Bureau of Land Management, U.S. Department of

the Interior, San Juan River Regional Coal Environmental Impact Statement, Second Draft

(Washington, D. C.: U.S. Government Printing Office, 1983).

Natural Resources Defense Council v. Berklund,

454 F. Supp. 925 (D.D.C. 1978).
Chapter 4

Planning and Environmental Assessment

in the Federal Coal Leasing Program
Chapter 4

Planning and Environmental Assessment

in the Federal Coal Leasing Program

Several aspects of the current leasing and environmental protection programs described in the

previous chapter have been criticized as inadequate to assure the development of Federal coal

lease tracts in an environmentally compatible

manner. Specific areas of concern relate to the

role of regional leasing rates, the adequacy of presale data and analyses, the application of the unsuitability criteria, the use of mitigation measures,

the deferral of decisionmaking, the role of Regional Coal Teams (RCTs), the effectiveness of

public participation, the special concerns of affected Indian Tribes, the applicability of the program to areas in which the Federal Government

does not own the surface (split estate leasing),

and the use of lease exchanges to reduce environmental risk.

This chapter documents the concerns that have

arisen about these aspects of the leasing program.

The chapter begins with an overview of the expectations about the program held by the various

participants in leasing. These expectations are

one context against which the validity of concerns

is assessed. The remaining sections of this chapter

discuss each of the issue areas listed above.

It should be noted that there are other, nonenvironmental, criticisms of the current leasing program. The allegations that the government did

not receive fair market value for the coal on leases

sold since 1981 and other economic issues were

addressed by a specially appointed Advisory

Commission on Fair Market Value Policy for Federal Coal Leasing and are not discussed in this

report. Criticisms related to the assessment of

socioeconomic and community impacts and of

the effects of coal conversion facilities (e.g.,

powerplants and synfuels plants), and issues surrounding surface owner consent, generally were

considered beyond the scope of this study, unless

they were found to be inseparable from environmental concerns,

EXPECTATIONS FROM THE LEASING PROGRAM

Participants 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 and

environmental organizations, and the public)

have definite–and sometimes conflicting–expectations of the program’s environmental planning and assessment. Some of these expectations

focus on program policy as set out in legislation,

while others relate to the manner in which the

program is implemented in regulations and in

practice. Controversy arises when the expectations of one or more parties are not fulfilled, or

when the parties disagree about whether an expectation is reasonable or is being met.

The controversies characterized by the differing expectations can be divided into four general

areas. They are: program predictability and stability, program administration, program implementation, and public participation. This section

describes those expectations and discusses points

of agreement and disagreement. Because this discussion of expectations incorporates most of the

major issues, it serves to introduce those issues,

which are analyzed separately in more detail in

subsequent sections of this chapter.

Program Stability and Predictability

There is a general expectation among the parties to the leasing process that it will be stable

and predictable, and that its legal and regulatory

framework will remain essentially unchanged given the time and effort that went into forging a

consensus on the adequacy of that framework.

Stability and predictability in methods of assessing environmental compatibility lend assurances

that environmental decisions will be consistent

55
56 . Environmental Protection in the Federal Coal Leasing Program

among regions and over time. Furthermore, stability and predictability in the program as a whole

are needed by the industry, BLM, other Federal

and State agencies, local communities and residents, and interest groups for their business and

administrative planning.

One important stabiIity/predictability expectation common to all parties is that the leasing program will not be driven by political or interest

group priorities, which can change over relatively

short periods of time. When the interests of two

or more parties conflict, and each desires its interests to be accommodated, it is necessary that

the program strike compromises in an impartial

manner. Problems arise when one party is or appears to be uniquely able to control or drive the

program (e.g., when only a coal company has

access to a particular data set or when a lawsuit

is threatened). Another problematic circumstance

arises when BLM planning decisions made at the

District or State Office level are overridden in

Washington, D.C. (whether by the executive or

legislative branch) for political or other reasons

unrelated to the leasing program. The major concern is that these reasons, even if a desired goal

is achieved, cannot be depended on to be invoked consistently in the future if needed, or may

be invoked to reach a decision that is inconsistent with overall program goals.

A second major expectation about predictability and stability in the leasing program is that the

amount of coal offered, its quality and location,

and the timing of its sale will match the industry’s need (and/or consumer demand) and will

not unduly strain BLM’s planning and assessment

capabilities or the resources of local communities and residents. There appears to be general

consensus that the parties prefer a regular, steady

pace of leasing rather than very large offerings

over a short period. Moreover, most parties expect the lease sale schedules to be flexible, such

that sales could be delayed if pre-sale planning

and analysis were not complete.

Finally, there is a general expectation that BLM

will maintain a stable staff resource for regional

planning functions. Concern has been expressed

by all parties to the leasing program that attrition

within BLM, as well as the Bureau’s practice of

rotating field personnel every few years, prevent

the development of an “institutional memory. ”

This contributes to data inadequacy and hinders

maintenance of continuity in public participation.

Moreover, with recent budget and staff cutbacks,

there is concern among some parties that BLM

will not be able to maintain the field expertise

needed for land use and activity planning.

Program Administration

There are three general expectations about

leasing program policy and the way it is administered. First, that the regulations will be in compliance with the legislation; second, that the coal

leasing and decisionmaking process will be transparent in both theory and practice; and third, that

the environmental impacts of developing Federal

coal will be assessed before tracts are offered for

lease, and only environmentally acceptable tracts

will be offered. Substantial disagreement exists

among the parties over whether these expectations are being met.

In the first instance, environmental groups have

sued BLM, alleging that the 1982 regulations are

not in compliance with the legislative mandate.

Specific concerns include continued reliance on

management framework plans (MFPs), the elimination of most standards for data adequacy,

changes in the scope and application of the unsuitability criteria, relaxation of the diligence

rules, inadequate environmental review requirements for preference right lease applications

(PRLAs), the use of a new leasing methodology

that results in far higher leasing levels, and elimination of several opportunities for public hearings.

Less polarization exists about the need for the

coal leasing process and the BLM and RCT decisionmaking processes to be transparent. All parties expect to be able to understand, on a dayto-day basis, what BLM is doing and plans to do

in the future, and all parties agree that the degree to which this expectation is met varies

among program areas and leasing regions. In

some cases, it is unclear how a decision was

reached due to incomplete documentation (e.g.,

a statement such as “the unsuitability criteria

were 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 that

appears in an environmental impact statement—

ElS). In other cases (e.g., exchanges), the participants find the process difficult to follow because

the departmental policies or procedures for a particular activity are not codified in the program

regulations, are overly vague, or change frequently.

There is also general agreement that the environmental impacts of coal development should

be analyzed to some degree prior to the lease

sale, but disagreement about what constitutes

“adequate” environmental impact assessment

(including data and analysis). Few argue that a

lease should constitute a 100 percent guarantee

that all portions of a leased tract are minable in

an environmentally compatible manner; some

flexibility is needed to accommodate changing

circumstances, new data, or advances in mining

and reclamation techniques. Similarly, few believe that a lease should include no guarantees

about an operator’s ability to develop and reclaim

a tract in an environmentally compatible manner. In between these two extremes, however,

there is much disagreement about the extent to

which a lease indicates a tract to be minable.

Most operators would be pleased to accept a

lease that constituted a 100 percent guarantee

of minability, but recognize that all business

decisions–including a bid on a lease sale–involve some risks. Thus, the amount bid for a lease

tract incorporates an operator’s assessment of the

economic risk that the permitting agency will find

a tract, or a portion thereof, unminable for environmental reasons post-lease. The industry would

prefer to accept that economic risk rather than

the risks posed when coal resources are closed

to mining or extensive mitigation measures imposed pre-lease. However, they do want assurances that a tract offered for lease does not contain any “fatal flaws” that would absolutely rule

out mine development.

While post-lease permitting provides a final

check on environmental compatibility based on

a very extensive data base, areas are less likely

to be excluded from mining at this stage. Therefore, environmental and other interest groups

view the industry’s assumption of the economic

risk as imposing an environmental risk on the

“public.” This is the risk that a tract will be leased

and eventually mined with a significant loss of

environmental resources, or significant, irreversible damage. Consequently, these groups would

prefer to see a lease reflect not just an assurance

that there are no fatal flaws on the tract, but a

guarantee that all reasonable environmental and

other resource values have been identified and

analyzed for regional and national importance,

and that if coal mining would significantly reduce

the value of important noncoal resources, then

the tract will not be offered for lease but managed

in such a way as to protect those other resources.

The agencies that approve mining and reclamation plans and issue mining permits (State regulatory agencies with approved programs, or the

Office of Surface Mining–OSM) have expectations that are caught between the operators’ and

the interest groups’. On one hand, the regulators

have a statutory responsibility to assess the environmental compatibility of coal mining on a particular tract, and would prefer that a decision

whether to offer a tract for lease does not usurp

their authority to evaluate minability. On the

other hand, the regulators don’t want all decisions about environmental compatibility passed

on to them.

The BLM and the Forest Service also have a statutory mandate to assess environmental compatibility—both for multiple-use conflicts and the unsuitability criteria—prior to lease sales. Their hope

is that they might have sufficient time and resources to fulfill this mandate. Their expectation

is that they will be able to screen out the major

problem areas, as identified by BLM and Forest

Service staff and regional activists, but will have

to defer many of the difficult decisions—those

which require extensive data (e.g., alluvial valley

floors–AVFs) or technical judgments about mitigation and reclamation—to the mine plan stage.

In some cases, however, BLM has been criticized

by interest groups for deferring more than just

the difficult decisions and therefore increasing the

environmental risk of leasing.
58 ● Environment/ Protection in the Federal Coal Leasing Program

Program Implementation

Expectations about the implementation of the

Federal coal leasing program center around

whether BLM’s day-to-day practice is in accord

with the theory of the program—that BLM and

the RCTs implement the spirit of the laws and regulations, not just the letter. Specific concerns in

this area include: that land use planning and tract

selection will be based on priorities for different

resource values; that BLM’s data base and analyses will support informed decisions about environmental compatibility; that the interests of all

concerned parties will be dealt with; and that

leasing decisions will be consistent with land use

planning and environmental impact analyses.

The issue of how resource priorities are assigned and what value is assigned to coal compared to other resources is controversial. During

land use planning, anticipation of a high leasing

level can unduly influence land use decisions in

favor of potential coal development. In environmental impact assessment, some parties to the

leasing process argue that BLM gives undue

weight to adverse impacts, to the detriment of

potential benefits of leasing and developing Federal coal. For example, in some areas coal development may play a role in easing unemployment.

Furthermore, companies and some States argue

that BLM does not give sufficient consideration

to the revenues from leased tracts when weighing

the relative costs and benefits of Federal coal development. Finally, there is some concern that

BLM’s data and analyses are inadequate to capture the regional importance of particular impacts. Thus, they might indicate that a particular

critical habitat will be destroyed if mining proceeds, but not whether it is a unique or common

habitat in the region. One element of this concern is the recent elimination of the threshold

concept for assessing cumulative regional impacts

prior to the EIS.

For tract ranking, controversy arises when a

tract that is ranked low for environmental values

(e.g., reclamation potential) is carried forward

because it has a medium or high ranking for

coal resources. Critics of these rankings do not

believe that the coal resource potential should

receive a greater weight than other values. Disputes also result when it is unclear how (or

whether) the various ranking factors are weighted

for importance.

There is a general expectation among parties

to the coal leasing program that BLM’s data base

and analyses must be adequate to make informed

decisions about environmental compatibility, but

disagreement about what is “adequate.” The parties also expect BLM to consistently seek out and

use all relevant information about an area (e.g.,

from other Federal and State agencies, mine

plans, and operating mines), rather than relying

on data available in-house. Finally, there is consensus that the Federal land management agencies should coordinate their data collection and

planning so that multiple-use decisions are consistent among agencies.

Expectations diverge on how leasing decisions

should accommodate a perceived lack of data.

Some parties expect tracts to be labeled “unsuitable pending study” or dropped from further

consideration for a particular lease sale if sufficient data are not available to make an informed

decision about environmental compatibility.

Others contend that such tracts should be carried forward as “acceptable pending study” and

uncertainties resolved through the extensive data

gathering and analysis involved in preparation of

the mine plan and permit application. There is

consensus, however, that detailed technical lease

stipulations should not be used as a substitute for

inadequate data.

Special interest groups expect environmental

issues to be addressed in land use and activity

planning regardless of whether those issues have

a constituency or whether they might eventually

be analyzed by another agency. These groups are

critical of the practice of not evaluating an impact area unless someone raises the issue. On the

other side of this coin, many parties expect priorities to be assigned to issue areas, such that potential impacts in major issue areas receive greater

attention than impacts concerning issue areas that

are not anticipated to be significant.

Finally, all groups expect their interests to be

considered and dealt with, but disagree about

whether the interests of other groups are as important 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 not

usurp the authority of other decisionmakers.

Thus, there is general agreement that issues

legally or traditionally belonging to the States

(e.g., water rights), the Forest Service (land use

and management decisions on National Forest

lands), OSM (technical and economic feasibility

of reclamation), or other agencies, should not be

decided by BLM.

Public Participation

Expectations about public participation in the

Federal coal leasing program center around both

the opportunities for such participation (e.g.,

whether or not hearings are held on particular

subjects), the relative ability of the parties to participate, and the consideration of public comments in leasing decisions.

All participants in leasing expect that the program will include sufficient opportunities for

public participation, but the number and scope

of what is offered are controversial. Environmental and other public interest groups are especially critical of the recent changes in regulations that eliminated four opportunities for public

participation: on Department of Energy (DOE)

production goals, on draft regional leasing levels,

on local community impacts prior to the EIS, and

on the application of the unsuitability criteria during land use planning. As a result of these reduced

opportunities, there is no assurance that views

communicated to BLM by any of the parties at

interest are “on the record, ” the way they would

be if there were a formal opportunity for public

comments or hearings.

Even when formal hearings or public comment

periods are provided, frustrations still arise on all

sides. The public and other interest groups expect the format, location, and timing of such

hearings or other opportunities for participation

will allow them sufficient and reasonable access

to the process. BLM expects that when they hold

a public hearing or provide a public comment

period, interested individuals and groups will participate on those occasions, and not wait until

a decision has been made and then challenge it.

A second source of frustration with public participation is the perception that the Federal Government, when making leasing decisions, at times

ignores material provided by various parties. For

example, in some regions nearly all parties to the

process provided information indicating that the

proposed regional leasing levels were too high,

yet only in one region were they adjusted downward at all, and then just slightly. Similarly, instances can be found where data provided to

BLM during land use planning (e.g., on the location of missile silos) were ignored throughout

most of the decision process. I n other instances,

data provided by the general public have been

instrumental in the identification of major issue

areas (e.g., wildlife habitat in Powder River). As

noted previously, this problem is exacerbated by

personnel attrition and rotations within BLM.

Finally, there is a general expectation that all

aspects of BLM’s decision making will be sufficiently well-documented and clearly explained

in order to facilitate participation by all affected

parties. This expectation includes not only that

the decisionmaking process itself will be transparent (as discussed above), but also that the documentation will be readily available to all interested parties. Unpublished data and analyses on

which decisions are based, or documents with

limited availability, also lead to frustration by all

parties.

REGIONAL LEASING RATES

The regional leasing rate is the ratio of: 1) the coal to be offered for lease during a round of sales

amount of coal to be offered for lease; and 2) the in a region—the regional leasing level—is one of

period of time during which all the planning and the major decisions made during the activity planassessment activities that support a lease sale ning portion of the leasing process, while schedmust be completed. Determining the amount of ules for the planning and analysis that support
60 . Environmental Protection in the Federal Coal Leasing Program

a lease sale are set at the outset of activity planning (or at the beginning of land use planning if

an MFP needs to be updated to support leasing

decisions).

In recent years, the regional leasing rates have

been high because the Department of the Interior

(DOI) increased the amount of coal to be offered

for lease in most regions, while the lease sale

schedules have remained fixed. As a result, BLM

field staff did not always have sufficient time for

adequate pre-sale planning and environmental

assessment of the large number of tracts to be

evaluated.

This section describes the overall process for

setting regional leasing levels and lease sale

schedules, discusses the methodologies for assessing the demand for coal reserves, and evaluates the environmental implications of high

lease rates.

Regional Leasing Levels

The regional leasing level* is the amount of federally owned coal resources (expressed in million tons of recoverable reserves) that the Secretary of the Interior determines is necessary to

meet the regional demand for coal reserves. It

can include a “security factor” of at least 25 percent to account for uncertainties in data and

methodologies in assuring that there is no leasing shortfall. In setting a regional leasing level,

the Secretary relies on recommendations and

comments from the applicable State BLM offices,

RCT, State Governors, and other interested parties (e.g., Indian Tribes). Proposed leasing levels

also are subject to public review and comment

at RCT meetings and through Federal Register

not ice.

Regional leasing levels are addressed twice in

the overall leasing process. First, an initial range

of leasing levels is established near the start of

activity planning, following the call for industry

expressions of interest. This range is used as the

basis for selecting alternative combinations of

tracts to be evaluated in the regional lease sale

EIS. Second, following publication of the EIS, the

*Referred to as a regional leasing “target” under earlier regulations.

Secretary determines the amount of coal to be

offered for lease.

The Process

The BLM National Director assigns a lead BLM

State Director for each lease sale, who has the

initial responsibility for suggesting a broadly stated

range of draft leasing levels for a Federal coal region. The lead State Director then appoints a Regional Project Manager from BLM, who evaluates

land use planning data, coal resource and demand information (based on the methodologies

described below), consults with the State Governors’ representatives on the RCTs and proposes

an initial range of leasing levels to the lead State

Director. Following the lead State Director’s approval, the initial range (with supporting technical information) is sent to the RCT members and

State Governors for review. The RCT evaluates

the draft initial range of leasing levels, discusses

them at a public meeting, and recommends a

preferred level to the Secretary.

The Regional Project Manager drafts a package

document, including the initial range, RCT recommendations, responses to questions and clarification of issues raised by the RCT, any new or

additional technical information, and any alternative ranges, to be given to the Secretary. The

initial range is not supposed to be altered to conform with RCT or State recommendations, but

can be updated to reflect the best information

available to the Project Manager. Moreover, high,

medium, and low projections will be identified

if a State RCT member so requests.

The Secretary (or his designee, the Assistant

Secretary for Land and Minerals Management)

then consults with the Secretary of Energy, the

Attorney General, affected Indian tribes, and the

State Governors, and sets the regional leasing level to be used for the selection of alternative combinations of tracts to be evaluated in the EIS.

A similar process is followed after publication

of the EIS in making the final decision about how

much coal is to be offered for lease. The RCT evaluates the regional leasing level in the context of

the EIS and other data and analyses developed

since the initial draft range was formulated, discusses 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 should

be offered. The Secretary then decides the final

regional leasing level based on: consultations with

the parties listed above; the potential economic,

social, and environmental impacts of coal leasing, as identified in the final EIS; industry expressions of interest; projected regional coal supply

and demand; special opportunity sales; the regional level of competition; U.S. coal production

goals and national energy needs; and other pertinent factors including land use planning data

and coal resource information (43 CFR 3420.2(b);

ref. 1 3).

The Methodology*

As the coal leasing program has evolved, the

process of setting leasing levels has become more

complex and more controversial. The most difficult aspect of determining the appropriate regional leasing level is projecting regional coal

supply and demand. Prior to 1982, that level was

set by comparing the future demand for coal in

a region—as projected by the National Coal Model, an economic model managed by DOE—with

the ability of the capacity of existing and proposed mines to meet that demand without additional leasing. Information about capacity was

compiled through a survey of individual mines

and tracts. If this analysis projected a shortfall (in

tons per year), it would be converted to an estimate of reserves of Federal coal that should be

offered for lease to fill the gap. The formula included a “security factor” of 25 percent to allow

for the uncertainties inherent in such projections.

This approach was criticized widely for two reasons. First, it was argued that regional leasing levels based on projections of consumption could

have underleasing and anticompetitive effects because they did not allow the industry an adequate

cushion of reserves to accommodate future uncertainties in demand—especially in light of the

leasing moratorium of the 1970’s. Proponents of

this theory contended that higher leasing levels

were needed.

Second, the numerous critics of the National

Coal Model argued that it assumed unrealistically

*The information on methodologies for setting regional leasing

levels is drawn primarily from refs. 5 and 12.

high figures for the future demand for electricity

(and thus for coal), and that it incorporated inaccurate assumptions about transportation costs,

oil displacement in electricity generation, coal reserves, and other factors. These criticisms supported lower (or at least unchanged) leasing

levels.

After evaluation of these criticisms and other

policy considerations, in 1982 DOI instituted a

policy of leasing to meet current industry demand for reserves (rather than future demand

for production). This policy has been defined by

DOI as “to offer as much coal as is environmentally feasible and consented to by involved surface owners and to allow the market to determine

which tracts are desired for leasing” (12). Other

policy considerations in setting leasing levels include preserving opportunities to increase the

level of competition for Federal coal resources,

and giving due consideration to environmental

and socioeconomic impacts (1 2). The effect of

this policy change was to increase leasing levels.

After several months of discussion with the

RCTs DOI adopted six different methodologies

to calculate the current demand for Federal coal

reserves: production, inventory, contracting rate,

expressions of interest, past sales, and minimum

leasing. Each of these methodologies results in

an estimate of the annual shortfall in coal production, which is then multiplied by the product of the average mine life and the percent of

the coal reserves that are federally owned to derive the leasing requirement stated in recoverable

reserves. This leasing requirement may then be

multiplied by an appropriate security factor (25

to 100 percent) to insure against underleasing.

The six quantitative methodologies are described

briefly below; appendix B gives the formulas and

an example illustrating their use.

These methodologies primarily are used to derive the initial draft range of leasing levels at the

outset of activity planning. The results of the formulas are then refined based on any new information, and used to set the final leasing level.

However, this timing means that the initial draft

leasing level will be based only on the limited information available about tracts from land use

planning. In practice, once the initial range is set,
62 . Environmental protection in the Federal Coal Leasing Program

it is extremely difficult to reduce for environmental reasons.

The BLM Project Manager is expected to use

all six of these methodologies to provide as much

information as possible to the RCT members.

However, the procedures may be modified or

supplemented by the Project Manager as needed.

For example, data inputs may be presented in

whatever form is most useful (e.g., a single number, high/Iow estimates, or broad ranges).

The six methodologies rely heavily on BLM projections of mine capacity and coal production for

a target year (e.g., 1990, 1995). Capacity is the

amount of coal BLM estimates could be produced

from all mines within a region in the target year

(if demand develops) without further Federal coal

leasing. Information about annual mine capacity

and potential limitations on that capacity is collected through a mine- or tract-specific survey.

Productive capacity may be limited by coal that

is of unmarketable quality, leases with access

problems, and PRLAs with issuance problems.

However, productive capacity would not be reduced due to a lack of expected demand for coal,

which would be captured in the production

forecast.

Coal production forecasts are based on a variety of published long-range national projections,

including those from the National Coal Association and DOE, as well as region-specific forecasts

from National Coal Model runs using modified

assumptions.

The Production Method

The production method of quantifying current

demand for coal reserves identifies the minimum

quantity of coal needed to meet the production

forecast by subtracting projected mine capacity

from that forecast. This is the same method used

pre-1 982, except that it does not include a security factor. According to DOI, the primary differences between the production method and those

described below is that it does not take into account industry’s desire to hold coal in a nonproductive status or the need to maintain competition within the coal industry. Thus, DOI considers

this method to be a “point of reference” on how

the leasing level would have been set under the

1979 leasing program.

The Inventory Method

The inventory method allows for nonproducing reserves as a means of dealing with the uncertainties in future demand. This methodology

estimates average industry holdings based on a

survey of active regional coal companies’ ratio

of reserves to production. The annual shortfall

is the product of this ratio and the production

forecast (from the National Coal Model), minus

the regional mine capacity. The inventory method is controversial because the ratio, and thus

the resulting Ieasing level, increases during

periods of low demand and decreases when demand is high (unless the ratio is calculated from

a multiyear average). This result seems counterintuitive to many critics of the leasing program.

The Contracting Rate

This method focuses on the rate at which coal

is being contracted for development in a region

in relation to the total amount of coal that has

been leased but not yet developed. It is intended

to calculate a leasing level high enough to ensure competition (in the DOI example, five bidders) for contracts to deliver coal to consumers.

However, because this method uses a ratio of reserves to production, it is subject to the same flaw

as the inventory method—the weaker the market, the higher the leasing level established under

the contracting method.

Expressions of Interest

DOI considers expressions of interest to mimic

the marketplace in that they allow each company

to assess its own needs for Federal coal reserves.

However, the Department recognizes that even

“thorough” expressions of interest–in which the

company has done extensive work in defining the

resource—may overestimate the amount of coal

that the industry will actually be willing to lease

for 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 a

quantitative leasing level, but relies on observations of past coal lease offerings; e.g., the bonus

bids on a price per ton basis, the number of bidders and the bids received, and the number of

tracts that did not receive opening bids or that

did not receive fair market value (as defined by

BLM post-sale). If trends of higher bids and increasing numbers of bidders are observed, increased leasing may be appropriate. The converse—less leasing during a trend of lower bids

and few bidders—does not necessarily hold because companies may decline to bid in a region

due to factors other than low demand (e.g., a perception that tracts are overpriced or were delineated in an undesirable way). Because relatively

few lease sales have been held under the current

program, this methodology has been of limited

use.

Minimum Leasing

Finally, the minimum leasing method establishes a low bound for leasing. It calls for adding

the reserves needed for maintenance and bypass

tracts, plus reasonable expansion of existing

mines. A minimal amount of reserves needed for

new production opportunities also may be included. The primary data sources for this method

are tract delineation reports and expressions of

interest. However, tract delineation is normally

carried out simultaneously with the procedures

for setting the leasing level, and, as noted above,

expressions of interest are subject to some uncertainties. Therefore, the reliability of this method

can be reduced by insufficient data.

Effects of High Leasing Levels

DOI’s decision to use these six methodologies–particularly the inventory and contracting

methods—has been controversial because they

have resulted in continuing pressure to offer more

coal for lease than recommended by the RCTs

and the State Governors. In December 1982, the

Federal-State Coal Advisory Board* recommended 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 given

priority but may be used at the discretion of the

RCT” (1 3). The Secretary signed off on that recommendation, but simultaneously noted that,

while that recommendation “removes any apparent mandate for the use of these two methods

by the RCTs, I am hereby instructing Federal

members of all RCTs to provide estimates using

these methods, and to give those estimates due

consideration during all RCT leasing level deliberations” (12). The apparent contradiction between

those two Secretarial actions led the Advisory

Board to recommend, at its 1983 meeting, that

these methodologies be reviewed again. High

leasing levels also have been the target of criticism

by environmental groups, local communities,

other surface management agencies, and the

Commission on Fair Market Value.

In the long run, higher leasing levels imply that

more federally owned coal will be mined, with

the potential for either a higher or lower probability of adverse environmental impacts occurring if a tract is developed. Higher leasing levels

could reduce this environmental risk because a

greater number of tracts would be offered and,

theoretically, companies would be able to choose

those tracts that are the least expensive to develop and reclaim (and thus have the fewest environmental conflicts). Moreover, leasing more

tracts might lessen the pressure to develop old

(pre-moratorium) leases and PRLAs, which may

be in environmentally sensitive areas because

they were issued prior to the body of environmental law approved in the late 1960’s and

1 970’s.

Where the direct cost of mining is the deciding

factor in industry decisions about coal development, the argument that higher leasing levels reduce environmental risk might be valid. However, in actuality other considerations often are

more critical than direct costs. These might include location (e.g., a tract adjacent to an ongoing mining operation, or the combined siting of

a mine and a mine-mouth utilization facility); accessibility to transport; the amount of development capacity already available to a company,

and the market for and the environmental characteristics and development costs of the coal included in that capacity; and the relative value of
64 . Environment/ Protection in the Federal Coal Leasing Program

undeveloped tracts held by a company and those

offered for lease (e.g., Btu value, sulfur content).

In such situations, higher leasing levels will not

necessarily reduce the risk that environmentally

sensitive tracts will be leased and eventually developed.

Moreover, higher leasing levels place greater

pressure on BLM to find more tracts environmentally acceptable for leasing. In the Powder River

Coal Region, DOI’s establishment of a lease offering at a level above the preferred alternative

recommended by the RCT resulted in the lowest

ranked tracts being offered for lease, including

some not agreed upon by the RCT. The RCT considers these tracts to have relatively poor reclamation potential and to entail substantial socioeconomic impacts due to the inadequate local

infrastructure (transportation, community facilities, etc.) (10b). In such cases, if more tracts are

leased than can be developed, uncertainties

about the location and level of mining activity

make it difficult for local governments to plan for

these impacts. Moreover, the high leasing levels

led to otherwise avoidable conflicts between DOI

and the RCTs, and made the leasing program appear insensitive to State and local needs.

In a different situation, in Uinta-Southwestern

Utah, the lease target was 322 million tons but

555 million tons were offered for lease–including

low-ranked tracts not in the target. According to

DOI, the low-ranked tracts were offered because

they had been evaluated for coal leasing, found

to be suitable, and were ready to be offered for

lease, and because they provided a means of testing the market (6). This is consistent with DOI’s

general leasing policy (noted earlier) “to offer as

much coal as is environmentally feasible and consented to by involved surface owners and to allow the market to determine which tracts are desired for leasing.” No bids were received on the

low-ranked tracts.

In the Fort Union region, one factor in the leasing level decision was high early industry expressions of interest. * On the Dunn Center tract, for

*It should be noted that the market for North Dakota lignite is

limited to mine mouth conversion facilities. When coupled with

the predominantly non-Federal ownership of the surface and

mineral resources (94 percent and 69 percent or more, respectively, on each tract), this means that there is unlikely to be more than

one bidder per tract.

instance, the initial expression of interest was for

7,160 acres of Federal coal (over 500 million tons)

for a liquefaction plant which already had begun

the State permitting process. The tract was evaluated for its acceptability for leasing in land use

and activity planning. Two sections of the tract

important to the company’s development plan

contained portions of the Knife River Flint Quarry—a site eligible for listing in National Register

(see fig. 9). These sections were carried forward

through activity planning and included in the final

EIS on the theory that detailed mitigation requirements (including preservation, if necessary)

would be developed during mine plan review.

Then, the company scaled down its plans for the

synfuels plant, and DOI increased the minimum

bid from $25 to $100/acre (6).

While the Secretarial Issue Document (SID) was

being prepared, the company requested that the

size of the tract be reduced to 2,100 acres—the

tonnage they estimated the scaled-down liquefaction plant could accommodate given the construction schedule and the requirement that a

mine be developed within 10 years after a lease

is issued. The two sections of Flint Quarry were

dropped from the tract (for political reasons) just

before the SID was issued (11), but the remainder

was offered for lease. The SID noted that a pending rule change in unsuitability criterion #7 would

“remove these sections from the unsuitability

determination,” but that the proposed rule

change would not become final in time for the

scheduled August 1983 sale (18). As a result of

these considerations, the company did not bid

on the tract. DOI’s decision not to reduce the

size of the tract further was in part due to the entire area having been included in the final EIS,

and in part because DOI determined that, if the

plant were built and a smaller tract leased, subsequent leases would likely be needed at a future

date to maintain coal production or prevent bypass (leaving “islands” of unmined coal) (6).

Lease Sale Schedules

Lease sale schedules also are addressed twice

in the overall leasing process. First, a preliminary

lease sale target date is established prior to the

onset 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
66 . Environment/ Protection in the Federal Coal Leasing Program

Washington office recommendations as modified

by the Secretary on the amount of time needed

to complete pre-lease planning and environmental assessments. Key milestones in the target

schedule are the deadlines for completion of the

MFP amendments (or resource management

plans–RMPs) and the draft and final EISs, and

public and interagency review and comment

periods.

Second, a final regional lease sale schedule is

announced by the Secretary following completion of activity planning and final consultations

with the Governors, surface management agen-

, cies, Indian Tribes, and the Attorney General.

The SID accompanying the 1979 coal leasing

program regulations established preliminary lease

sale target dates for three regions: Green RiverHams Fork, Powder River, and Uinta-Southwestern Utah (see table 5).

Preliminary leasing targets and sale dates were

not established for the Fort Union and San Juan

regions in this SID. Eventually, a target sale date

of late 1982 was established for Fort Union (later

postponed to mid-1983), and a 1983 target date

was set for San Juan. The leasing program anticipated that follow-up sales would be held at 2-

year intervals in each of the regions. With the exception of the San Juan region, most first round

lease sales have occurred close to their original

target dates. In San Juan, the schedule had to be

extended when BLM decided to issue a second

draft EIS to respond to the numerous criticisms

of the first draft. Federal policy has been, however, to meet lease sale target dates when possible. Table 6 indicates the competitive lease sales

that have been held or scheduled to date.

The original schedules acknowledged that land

use planning had not been completed for all of

the resource areas within the various coal regions.

Most resource areas, however, did have an MFP

to guide multiple-use decisions at the time the

original dates were set. The major environmental

analyses remaining were updating or amending

the MPF (including application of the unsuitability

criteria and surface owner consultation), tract delineation, site-specific analysis and preparation

of the tract profiles, tract ranking and selection

of the alternatives, and preparation of the draft

and final EISs. As can be seen in table 6, the

schedules in Green River, Powder River, and

Uinta were met.

Effects of Inflexible Lease Sale Schedules

In each of the five Western coal regions, problems were encountered in meeting the lease sale

schedules, which reduced the quality and quantity of data and analyses. Given that BLM was implementing a new, very complex program over

a short period of time, this is not particularly surprising. However, the normal learning curve on

a comprehensive set of new coal leasing rules was

complicated by several other considerations that

inhibited achievement of the preliminary target

date. (These considerations include high regional

leasing rates–the ratio of the leasing level and

the schedule—whose environmental implications

are discussed below.)

One problem was that field office recommendations as to the time needed to prepare for a

lease sale were not always heeded by the Secretary. For instance, in at least two regions—Green

River-Hams Fork and Uinta-Southwestern Utah–

problems in meeting lease sale schedules were

attributed in part to deadlines being accelerated

to accommodate review and comment periods.

That is, the time estimated by field offices to be

necessary for the completion of data collection

and analysis also had to include public, internal

BLM and DOI, and interagency reviews. This may

Table 5.—1979 Lease Sale Target Dates

Preliminary leasing target

Region Round 1 sale date (million tons)

Green River-Hams Fork . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . January 1981 531

Powder River . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Early 1982 621 + 250/o

security factor, or

776

Uinta-Southwestern Utah. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . July 1981 109

SOURCE: Department of the Interior, Secretarld Issue ~ocu~e~t, federal Coal Management Program, vol. 11, 1979.
Ch. 4—Planning and Environmental Assessment in the Federal Coal Leasing Program . 67

Table 6.—Lease Sale Schedules

Leasing

target/level Offered Sold

Sale Sale date (millions of tons)

Green River-Hams Forka

. . . . . . . . . . . . . . . . . . . 1/81 ;4/81 ;6/81 416 573 573

Round I

Uinta-Southwestern Utaha 

. . . . . . . . . . . . . . . . . 7181 ;2/82;5/82 322 555 88

Round I

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

Round I

Fort Unionb 

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

Round I

San Juana 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (lst quarter FY84)c800-900

Round l

— —

Green River-Hams Fork . . . . . . . . . . . . . . . . . . . (2nd quarter FY84)c

750-950 —

Round ll

—

Uinta-Southwestern Utah . . . . . . . . . . . . . . . . . . (2nd quarter FY84)c

1,6OO-2,100a —

Round ll

—

Powder River . . . . . . . . . . . . . . . . . . . . . . . . . . . . (4th quarter FY84)c1,200-4,850 —

Round ll

—

Fort Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (4th quarter FY85(c – — —

aln place re9etves

baidrecelv~~,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 support

of land use and activity planning by as much as

one-half in those regions (6).

Compression or acceleration of sale schedules

also hinders other agencies’ ability to coordinate

their planning with BLM’s. For example, in the

Uinta region, the Forest Service planned to budget time and resources for their involvement in activity planning for anticipated Round II sale dates

in fiscal years 1985-86. The sale dates were then

moved forward 2 years (to 1983-84), but the Forest Service had not submitted budget requests for

activity planning for those years. Although the

Forest Service actively assisted BLM in keeping

to the Bureau’s schedule for Round I, they view

the current hiatus in leasing as a chance to “catch

up” on their Iand and resource management

planning so they can participate more effectively

in, and have the budget resources for, activity

planning for Round II (10).

The reorganization that shifted DOI’s minerals

conservation functions from the Geological

Survey (USGS) to the Minerals Management Service (MMS) and eventually to BLM was partially

responsible for tract delineation being delayed

in some of the regions. Also, time schedules were

difficult to meet in some regions due to changes

in policy directives to the field offices. All of these

were compounded by personnel rotations and

attrition in BLM field offices.

The Environmental Implications

of Leasing Rates

High regional leasing rates—the combination

of increased leasing levels and rigid lease sale

schedules—mean that BLM must delineate and

evaluate more tracts during activity planning and

environmental impact assessment. If additional

time and/or resources (including staff or funds)

are not provided for these activities, then less data

collection and analysis can be performed if the

rate is maintained. As a result, more tracts must

be carried forward with less analysis than might

be desirable to assure environmental compatibility, and greater reliance must be placed on

the permit review, which increases the risk that

environmentally sensitive areas eventually will be

mined.

in the last 3 years, high regional lease rates

resulted in the application of some unsuitability

criteria without sufficient supporting data and

analyses, or the deferral of their application to

activity planning (see discussion of “Unsuitability
68 ● Environmenal Protection in the Federal Leasing Program

Criteria” below). Thus, the deadline for completion of land use planning had to be allowed to

slip, or time had to be taken during activity planning to complete some of the land use planning

functions. Either way, the EIS preparation

schedule remained fixed, and the time remaining for site-specific analyses (SSAs) had to be compressed. This was exacerbated by the need to collect data and complete the unsuitability reviews

that were deferred during land use planning.

There is consensus among the participants in

the leasing program that, unless lease sale

schedules were allowed to slip, there was insufficient time to complete more than reconnaissance level studies, and, in some cases, for

the appropriate technical experts (e.g., soil scientists, wildlife biologists) physically to visit a site

pre-lease (Powder River) (10b). In at least one region (Uinta), the majority of time allotted for sitespecific analyses was during the winter months

(10c). In some split estate situations, obtaining

surface owner consent for, and performing, data

collection and research was difficult given the

tight planning schedule.

Where leasing rates did not increase greatly,

or where planning and analysis were begun sufficiently far in advance (e.g., mid-1970’s), BLM

generally was able to complete the additional

planning and analysis necessitated by higher leasing rates. However, where leasing rates. did increase significantly and BLM had not made sufficient progress in environmental assessment,

local and regional BLM offices were forced into

a crisis or issue management mode, in which they

were able to focus only on tracts nominated by

industry or about which controversy had arisen.

The quality of their assessments suffered as a result. If it were not for the high leasing rates, BLM

probably would not have had to strain its environmental planning and assessment capabilities.

Furthermore, the postponement of land use decisions resulting from the high leasing rates

heightened conflicts over specific tracts, which

further exacerbated the ability to reach accommodation with the affected parties.

DATA AND ANALYSIS

Comprehensive land use and activity planning

and environmental assessment supported by increasingly detailed data and analyses are at the

heart of the tiered structure concept of the Federal coal leasing program. However, the adequacy of the data and analyses used in decisionmaking for some of the past Federal coal lease

offerings and those currently being evaluated has

been criticized, both in terms of quality and quantity, and in the timeliness of their availability.

These criticisms currently form part of the basis

for three lawsuits. In Northern Cheyenne Tribe

v. Watt (16), and National Wildlife Federation v.

Burford (14), plaintiffs allege that the land use

plans which provided the foundation for environmental decisions in the first round of coal lease

sales in the Powder River region do not meet the

requirements of either FCLAA or FLPMA. A third

suit, Natural Resources Defense Council v. Burford (15), challenges the adequacy of planning

in all regions to the extent it is based on updated

MFPs rather than new RMPs (see ch. 3).

This section describes the data-gathering process as it relates to the Federal coal leasing program. While both the theory of the existing legal

and regulatory framework, and its implementation are addressed, the focus of the following discussion is the present practices of BLM in data

collection and analysis, and the criticisms of those

practices. Aspects of data and analysis that relate

specifically to the application of the unsuitability

criteria are addressed in detail in a separate section of this chapter.

A Tiered Process

Decisionmaking in the Federal coal management program is essentially a tiered process in

which 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 consideration for leasing (and mine development)

decreases (see fig. 2 in ch. 2). At the lowest tier

is comprehensive land use planning for areas administered by Federal land management agencies. For the most part, the information at this

level is prepared prior to the initiation of planning for the development of a particular Federal

resource, but includes lands’ acceptability for

such development. Thus, land use planning in

an area known to have recoverable Federal coal

resources will include collection and analysis of

coal resource data, application of the unsuitability

criteria, evaluation of potential multiple-use tradeoffs, and surface owner consultation, as well as

comprehensive land use planning for all resources based on principles of multiple use and

sustained yield. These four “screens” for determining coal lands’ acceptability for further consideration for leasing are described in greater

detail in chapter 3.

The 1979 leasing program regulations specified

that these four screens were to be applied sequentially, with medium to high coal development potential being the initial screen (compare

figs. 10 and 11). Under the present program, the

screens need not be applied sequentially (and,

in practice, often are considered simultaneously),

and lands with low coal development potential

may also be carried forward to later stages as

acceptable for further consideration for leasing

and eventually offered for lease. Allowing lands

with low coal development potential to be carried forward to the next stage of the leasing process can increase the area BLM field personnel

must evaluate at each subsequent stage, which

exacerbates the time and other resource constraints imposed by high leasing rates. This effect

can be compounded by the simultaneous application of the screens if BLM’s limited staff, time,

and budget are expended collecting and analyzing data relevant to one screen only to find the

area is unacceptable under another which would

have been applied first under the 1979 program.

On the other hand, an inflexible requirement for

sequential application could be less efficient if,

for example, data are available to drop an area

from further consideration based on multiple-use

tradeoffs, but that action could not be taken until data to support coal resource or unsuitability

determinations are available.

Once the required screens have been applied,

potential lease tracts are delineated and additional information about them is gathered and

evaluated during activity planning for a regional

lease sale. Data and analyses at this stage focus

on the possible impacts that could result from development of an active coal mine on those tracts

that have been found potentially acceptable for

such development. During activity planning, environmental assessments include site-specific

analyses, tract profiles, and the estimated regional

impacts of development on lease tracts, which

culminate in preparation of the regional lease sale

EIS and the ranking of tracts by the RCTs.

The ultimate level of detail in the assembled

data and the scrutiny it receives is outside the actual leasing process. It is the submission, pursuant

to SMCRA, of an application for a surface mining permit, including a detailed mining and reclamation plan, for a particular tract and scrutiny

of that application by the appropriate permitting

agency. The extremely detailed data and analyses required at mine plan review shift the economic burden of gathering extensive inventory

data and performing data intensive analyses (e.g.,

on hydrology or reclaimability) to the lessee.

At each step in this process, existing data are

analyzed in increasing detail and supplemented

by more directed data-gathering efforts. This is

possible because the amount of land being evaluated at each successive tier becomes progressively smaller as the land moves closer to actual

development. The intent of this tiered process is

not only to permit a progressively narrower focus

of the evaluations, but also to eliminate unacceptable areas from further consideration for leasing,

after taking into account the coal resource quality

and quantity, proximity to existing transportation,

socioeconomic and environmental concerns, and

other factors.

Sources of Data

A variety of different types of data and analyses are necessary to support land use and activity planning and environmental assessment for

34-756 0 - 6 - QL3
70 ● Environmental Protection in the Federal Coal Leasing Program

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, wildlife and habitat, cultural and archaeological sites),

socioeconomic data, and environmental, social,

and economic impact assessments. The sources

for such supporting information include earlier

BLM planning documents, BLM field studies,

other Federal and State agencies, local communities and residents, coal companies, mine plans

and operating mines, the public, academe, and

environmental and other interest groups. However, the data available from these sources are

not readily accessible in any systematic way, and

the extent to which these sources are tapped

varies widely.

Data and analyses developed by BLM (i.e.,

available in-house) are based on general land use

planning, and on field studies and planning in

support of earlier lease sales or other activities

(e.g., grazing, wilderness). All BLM regions have

MFPs to guide their planning. However, such

plans were prepared prior to the comprehensive

land use planning mandates of FCLAA and

FLPMA, and must be amended or updated to incorporate planning for coal leasing. The continued reliance on updated MFPs contributes to the

perceived inadequacy of BLM’s data and planning and is one basis for the pending litigation

against BLM by environmental groups. The preparation of comprehensive RMPs is underway in

some areas, but those documents generally will

not be available to support leasing activity until

at least the third round of lease sales (see separate discussion of RMPs in ch. 3).

In the current leasing process, MFPs are supplemented by field studies to the extent possible.

It appears that BLM has not been able to collect

as much data or perform as many analyses as they

would have liked. In general, funds for new resource inventories have been cut back, and environmental assessments typically relied on updates

of existing inventories based on areal mapping.

The fiscal year 1984 budget justification indicates that the Bureau plans to reduce the number of technical investigations by more than onehalf (see table 7) (l). Technical investigations are

studies describing the effects of coal leasing decisions on hydrology, overburden, soils, and vegetation. Under a 1981 policy change, the responsibility for overburden, soil, and revegetation

studies has been transferred to lessees. According to that budget justification, BLM considers

hydrologic studies necessary to support decisions

leading up to a lease offering and will continue

to 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 Planning

Land use planning

Process

SOURCE: Bureau of Land Management.

1

greater reliance on existing data from earlier

studies in the same areas and on data from lessees

(l).

DOI also plans to cut nonminera!s inventories

by one-third, primarily by concentrating inventories in areas with high coal development potential, and to reduce geology, energy and minerals (GEM) assessments by more than one-half

by shifting from a tract-by-tract analysis of coal

resources to an automated data base incorporating industry drilling and other data (l). Finally,

land use planning studies to support regional

lease sales, which provide information on specific topics such as air and water quality, cultural

resources, and socioeconomic impacts will be reduced by more than one-half. This reflects anticipated decreases in the number of lease sales
72 ● Environmental Protection in the Federal Coal Leasing Program

Table 7.—BLM Coal Leasing Workload Projection

Change: FY83 Change: FY84

FY 1982 FY 1983 FY 1984 appropriate ions FY 1984 base to

Workload measure actual appropriate ions base to FY84 base estimate FY84 estimate

Activity plans prepared . . . . . . . . .

PRLAs processed. . . . . . . . . . . . . .

Lease readjustments . . . . . . . . . . .

MFP amendments . . . . . . . . . . . . .

Land-use planning studies . . . . . .

Inventory (000 acres) . . . . . . . . . . .

GEM assessments (000 acres) . . .

Lease applications. . . . . . . . . . . . .

Exploration licenses . . . . . . . . . . .

Trespass investigations

Site-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 . . . .

3

53

52

6

615

120

23

74

58

36

56

4

12

6

15

40

2

13

2,100

300

23

78

5

43

7

13

59

3

7

7

20

5

80

65

4

13

2,100

708

23

78

8

67

7

13

95

2

5

7

2

20

+1 5

69

65

6

1,400

322

23

78

8

67

5

6

95

2

5

7

2

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

130 134 134 134

Inspections . . . . . . . . . . . . . . . . . . . 1,800 2,200 2,200 — 2,400 +200

Mine and exploration plan

reviews. . . . . . . . . . . . . . . . . . . . . 268 259 259 — 269 +10

SOURCE: Burem of Land Management FYS4 Approprlatlons Summary Statement

to be conducted in fiscal year 1985 and fiscal year

1986, as well as greater reliance on lessee data

on cultural resources (1).

important part of the leasing program. However,

the Federal coal drilling program has been suspended and leasing decisions related to coal development potential are increasingly dependent

on industry data. Coal companies must submit

coal resource information in support of expressions of interest for particular tracts. Otherwise,

coal resource information is proprietary and does

not have to be shared with BLM or disclosed to

the public. As discussed below, other data developed by industry (e.g., on environmental resources) also can be considered proprietary and

do not have to be given to BLM pre-lease.

One possible source of data on hydrology and

soil profiles is from industry drilling to collect coal

resource information. A company must secure

a drilling permit from BLM in order to perform

the exploratory drilling necessary to evaluate an

area’s coal development potential. These permits

could be conditioned to require the simultaneous

collection of hydrological and soil profile data,

or BLM could perform additional data collection

at those sites at minimal cost to the government.

These reductions in the basic analyses that support land use planning assume that the existing

planning base will be adequate, with tract-specific amendments, to make informed decisions

about the environmental compatibility of tracts

to be offered in future lease sales. Since OTA

found that current pre-sale planning and analyses have not always been adequate in the past,

continued cutbacks in these activities in the future

can only heighten the controversy. The changes

in program emphasis described above also focus

most general planning and analysis on areas with

coal development potential. As a result, the planning data base will continue to fall short of a comprehensive areal perspective on the relative values of resources on coal tracts.

The collection of coal resource information by

industry or Federal agencies, including BLM and

USGS, occurs both independently of and as an
Ch. 4—P/arming and Environmental Assessment in the Federal Coal Leasing Program ● 73

In the Wyoming portion of the Powder River region, exploration licensees have been encouraged to gather as much environmental data as

possible (6), but otherwise opportunities to take

advantage of industry drilling activities to secure

additional environmental data seem to have been

overlooked.

One source of high quality environmental resource information that frequently is not used by

BLM is data from mine plans and operating

mines. While these data do not apply directly to

any lands considered for coal leasing, they are

sometimes derived from lands either adjacent to

or in the vicinity of potential lease tracts. Consequently, they can provide extremely detailed information that identifies the characteristics of and

impacts of mining in areas similar to proposed

lease tracts. This information can then be verified

by, or used to focus, data gathering efforts on

lease tracts.

Unlike industry data gathered on unleased

areas, all information in mine plans, including indepth analyses, and from operating mines, is

available to the general public. However, one potential problem in the use of existing mine plan

and mining data is the extreme site specificity of

the information. For example, revegetation data

in the San Juan region do not address reclamation in a systematic regional manner, but at a

mine-specific level (10a). A second problem is

that the sheer scope of a mine plan, which may

number 20 or 30 volumes, discourages the use

of these data and analyses. Nevertheless, concern

was voiced to OTA in each region about the extent to which data from existing mine plans and

operating mines were not utilized by BLM.

Apart from the Federal surface management

agencies, including BLM and the Forest Service,

a large group of technical expertise exists within

the mining industry, OSM, State and local governments, 51A, Indian Tribes, academe, and the general public. Technical expertise from virtually all

of the sources mentioned above has contributed

to BLM’s land use and activity planning and environmental assessment. For example, active participation by local residents in BLM’s pre-lease

planning and assessment resulted in identification of valuable wildlife habitat in Powder River

(10b). However, in other cases, BLM made minimal use of technical expertise that was not available in-house.

BLM is beginning to make more use of data

from outside sources. For instance, in the San

Juan region, early planning documents for leasing acknowledged the lack of data on socioeconomic, agricultural, and cultural characteristics

of Indian lands. Many of the gaps could be filled

by BIA and the Tribal and Pueblo governments.

BLM is now attempting to incorporate information from these sources in their pre-sale planning

(10a). Similarly, in Colorado, BLM has now contacted the Mined Land Reclamation Division of

the State Department of Natural Resources to

determine how State data bases derived from permitting and monitoring of mines can be used in

pre-lease planning (6).

The primary constraint on the use of data

from sources outside BLM is the limited period

of time and other resources available to seek out

such data coupled with the lack of a comprehensive, easily accessible data base. Due to the time

and budget constraints on all participants in leasing, available information is not easy to incorporate in pre-lease planning and analysis. BLM has

neither the time nor the resources to review all

existent data—most of which is unpublished and

thus not indexed—for its relevance to leasing.

Similarly, it is usually beyond the scope of other

participants’ resources (or responsibilities) to ensure that all information applicable to leasing is

presented to BLM in a manner that would facilitate leasing decisions. As a result, the exchange

of information among participants in leasing has

been somewhat serendipitous.

Attempts have been made in the past to accumulate all resource data and analyses relevant to

Western coal development and incorporate them

in a comprehensive, easily accessible, computerized data base. Such a data base would be invaluable in improving the quality of pre-lease

planning and assessment, in assisting in reclamation plans, and in facilitating public participation

in leasing and mine plan review. However, it

would also be an extremely expensive and timeconsuming task. BLM currently is developing a

computerized data base on coal resources; it
74 ● Environmental Protection in the Federal Coal Leasing Program

could be expanded to include other resource

data. The U.S. Forest Service formerly published

a quarterly computerized listing of reclamation

studies that were available in the Rocky Mountain West—Surface, Environment, and Mining

(SEAM) –which was discontinued for financial

reasons. Options for developing such a data base

are discussed in more detail in chapter 2.

Adequacy of Data and Analyses

The data and analyses for assessing the environmental compatibility of coal development on

potential Federal lease tracts raise issues related

to the ability of data bases to support leasing decisions during land use and activity planning, high

leasing rates, the insufficient guidelines or standards for evaluating the adequacy of data and planning, reliance on “worst-case” analysis, the elimination of requirements for cumulative impact

assessments prior to the EIS, problems with data

collection on split estate lands, and the constraints on use of non-BLM data (discussed previously).

It should be noted at the outset that the quantity and quality of data and analyses needed to

support a particular planning or leasing decision

frequently is a “judgment call.” Seldom will there

be a consensus among participants in the leasing process that there is an appropriate level of

information for a decision; some will always argue

“too little,” others will always counter “too

much.” However, the factors discussed below

support the finding that BLM personnel were not,

in many cases, able to meet their own professional standards for the quality and quantity of data

and analysis desirable to support land use and

activity planning.

Land Use Planning

OTA found that in some cases, an outstanding

job of data collection and analysis was performed

to support informed land use planning decisions.

For example, in the powder River region, the MFP

and amendments for the Decker-Birney area, in

the vicinity of the Tongue River, indicate that extensive data of high quality existed to support

land use planning. Often, the exceptional amount

of data available in a particular area can be attributed to that area having been used for special studies during development of the leasing

program. Unfortunately, the amount and quality of information in such areas appears to be an

exception.

inadequate data and analyses to support land

use planning decisions were identified by OTA

in two main areas: information to support application of the unsuitability criteria (discussed separately in this chapter) and coal resource data. Unless inadequacies in coal resource information

and environmental data bases in the initial phases

of the leasing process are explicitly recognized

and subsequently remedied, they can affect the

overall quality of land use and activity planning

efforts.

In the San Juan region, for example, BLM had

limited coal resource information early in land

use planning. This was due in part to the unexpectedly high regional leasing level, which meant

a larger area would have to be evaluated for coal

resources than originally anticipated by BLM field

personnel, and in part to the lack of an active

drilling program within DOI. The guidance given

by the RCT was to delineate more tracts on the

basis of less reliable reserve information, with the

caveat that the tracts would not be offered for

lease until additional drilling was performed.

Thus, adequate coal resource information may

not have been available to the tract analysis team

early enough for tract ranking.

This was one factor in the widespread criticism

of the adequacy of the first draft EIS for the San

Juan Round I lease sale (nonconsideration of

PRLAs except in the no-action alternative, inadequate data on cultural resources, inadequate

analysis of economic costs and benefits of leasing, no analysis of impacts of relocating Navajos,

and inadequate hydrologic data were other factors). Following improvement of the coal resource

information, gathering of more environmental

data, particularly on cultural resources, and the

lowering of the regional leasing level, a second

draft EIS was prepared. However, of the 39 tracts

carried forward for further consideration for leasing in the second draft EIS, 12 still are listed as

“low confidence in the quality and quantity of

the coal resource” (7).
Ch. 4—Planning and Environmental Assessment in the Federal Coal Leasing Program ● 75

OTA’s perception is that the routine, everyday inventorying by BLM—data gathering that

supports all activities and not just the coal leasing program—also has been inadequate to support environmental decisions on coal leasing.

Budget constraints on resource inventorying (e.g.,

of wildlife habitat) during land use planning have

led to a high degree of reliance on available data,

primarily on updated or amended MFPs. As

noted above, in a number of instances continued

reliance on MFPs has been inadequate to support informed decisions most notably in the

repeated deferral of application of the unsuitability criteria during land use planning (see separate discussions of the unsuitability criteria and

of deferral of decisions).

In the Uinta-Southwestern Utah coal region,

adequacy of existing comprehensive land use

plans is a major issue. The specific concerns there

are the conflicts between the schedule for land

use planning by the U.S. Forest Service (as the

surface management agency for National Forest

lands) and that of BLM (as manager of the coal

resources underlying Forest lands), and the disagreement between the two agencies on the significance of projected impacts of coal development. The Forest Service (and many other

participants in Ieasing in that region) contends

that potential cumulative environmental effects

of leasing on the Manti-LaSal National Forest, in

which numerous tracts have been delineated,

cannot be assessed until a revised and updated

Forest Land and Resource Management Plan is

prepared, as required by the National Forest

Management Act (see fig. 12). That plan is scheduled for completion in 1985, but was not available to support leasing decisions for the first

round of sales (10).

Forest Service personnel cited data deficiencies

concerning big game winter range, trout fisheries,

sage grouse habitats, eagle nests, endangered

species, flood plains, cultural resources, and

other areas in the application of the unsuitability

criteria and in preparation of the site-specific analyses. The limited time allotted for SSAs and the

inconsistent approaches used by the two surface

management agencies also were cited by Forest

Service staff as reasons to delay leasing of certain tracts within the Forest (1 O). Other participants agree that there has been a lack of coordination in data collection and planning between

the two agencies. For example, the two agencies

have not as yet agreed to a definition of what constitutes a municipal watershed. This has implications for unsuitability criterion #17 (municipal

watersheds), which, if it is found to apply, could

remove much of the area from further consideration for leasing (see section on unsuitability criteria).

In the San Juan region, inadequate environmental data from MFPs and other sources were

employed throughout Iand use planning, activity planning, and draft EIS preparation. The EIS

process, rather than land use planning as prescribed in regulations, ultimately was responsible for forcing the collection of data, but this

meant the data were collected after tract delineation, and were not incorporated at the outset in

comprehensive land use planning.

As noted above, one of the possible means of

improving data bases is to use data from sources

outside BLM to make decisions concerning multiple-use tradeoffs and unsuitability decisions. In

some cases, critical data that were available during land use planning were not considered, not

only in land use planning, but also in later phases.

For example, in the Fort Union region sufficient

information was supplied to BLM at the outset

of land use planning to enable them to make multiple-use tradeoffs or unsuitability decisions, and

thus to drop tracts, due to the presence of missile silos and related control facilities. Yet these

tracts were considered “acceptable pending

study” (a Strategic Air Command assessment of

the effects of mining on defense installations), and

proceeded through planning and the EIS process before being dropped in the SID at the request of the Secretary of the Air Force because

the final results of the study were not available

(18).

Activity Planning

Data-gathering efforts during activity planning

are focused on the specific delineated tracts.

From this point on, the baseline data are used

to analyze the projected environmental impacts

of 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
Ch. 4—Planning and Environmental Assessment in the Federal Coal Leasing Program . 77

collection that occurs once tracts have been delineated has been at best uneven. Specific problems include the lack of a regional perspective,

variations in quality and quantity of data between

tracts and between regions, and the difficulties

posed by very large tracts.

One problem found by OTA is that the in-depth

information on a given tract that supports the

analysis in a regional EIS will not provide a perspective on how the tract fits into the regional

setting unless information of an equivalent level

of detail is available on areas throughout the region. On one hand, this means that detailed information on a tract can make it appear to be sensitive to environmental conflicts, whereas if

considered in the context of equally detailed data

for the entire region, the resources on that tract

might not be valued so highly. This may be a contributing factor to industry’s general reluctance

to divulge environmental data on a tract in which

they are interested. On the other hand, tractspecific data may be inadequate to support the

assessment of cumulative impacts required in

the EIS.

BLM field staff told OTA that tracts are far more

likely to be dropped because of too much information rather than too little. For example, in the

Powder River region, a tract was dropped from

further consideration for leasing in Round II because of a preponderance of negative elements.

It was not dropped explicitly because of application of any of the screening procedures. It simply

seemed like a bad tract to lease when compared

with other tracts (10b). While this is exactly the

type of decision that BLM is supposed to make,

it is possible that the level of data gathered on

this tract tended to make it look worse than it

would have appeared had an equivalent level of

information been available for the general area.

On the other hand, the comparison of equivalent

data bases still might have justified not only the

tract’s low ranking, but also its being dropped

from further consideration for leasing.

Criticisms also have been raised about the lack

of tract-to-tract consistency in BLM’s data bases.

Among the examples cited are differences in the

level of soil surveys and wildlife inventories that

were available in some of the States. In the Powder River region, existing soil surveys in Montana

were reportedly more detailed than those available in Wyoming (6). Similarly, in Fort Union, the

Montana wildlife inventories were considered to

provide higher quality information than those in

North Dakota (9). In most such cases, the variations in data quality and quantity can be traced

to staff support from State or other Federal agencies. Where resources are not available for that “

staff support, the quality of BLM’s analyses suffers.

Regional variations in data adequacy also might

be traced to the level of coal development in a

region in the past, and therefore the availability

of data from mine plans and operating mines, and

the degree to which future coal development was

anticipated. If a region plans for a low level of

leasing and a high level is imposed, a large number of tracts will have to be evaluated in a short

period of time, usually after land use planning.

Inconsistencies such as these further underscore

the present lack of any program-wide guidelines

to assist in the assessment of the quality of data

desirable at each stage of lease planning.

Gathering environmental data on very large

tracts may be a significant problem for informed

decisionmaking. For example, the Ash Creek tract

in Powder River is over 7,700 acres in size. Only

the most comprehensive site-specific analysis and

inventory of resources could ensure that all environmental resources are considered adequately

on such a tract. In such situations, time and

budget constraints mean BLM must rely on other

participants to alert the Bureau to environmental

conflicts. Thus, on Ash Creek, the presence of

one of two known nesting sites within Wyoming

of a State high interest species, the Lewis Woodpecker, was ascertained only as a result of the

active participation of local residents in activity

planning. Determination of this species’ presence

on the tract resulted in BLM’s declaring a buffer

zone around the nesting site as unsuitable for

mining. However, subsequent BLM data collection indicated the presence of alluvial valley floors

and bald eagle hunting grounds, and Ash Creek

was 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 inadequacy in recent years has been the high /easing rates, or the combination of the size of the

area that must be evaluated for leasing at each

stage of the process, and the amount of time

allotted to that evaluation. The high leasing rates

did not provide sufficient time for BLM personnel to search existing data bases or to collect

new data in areas that had not previously been

inventoried or had been inventoried only partially. As a result, either the time needed for land

use planning had to be extended and, therefore,

the activity planning schedule compressed, or

land use planning decisions had to be deferred

or based on inadequate data (see separate discussion of “Regiona Leasing Rates”). Deferral of

data collection to activity planning–after tracts

have been delineated–may result in BLM overlooking potential coal lease tracts.

Another major problem with the current Federal coal leasing program is the insufficient regulatory guidelines and standards for determining whether the environmental data that exist at

any stage of the leasing process, either during

land use or activity planning, are adequate to proceed to subsequent stages. Some guidelines are

specified in internal BLM memoranda and other

directives, but most regulatory standards for data

adequacy were eliminated in the 1982 program

changes. A wide range of participants in the leasing program—including many BLM field personnel—expressed a preference for regulatory standards and guidelines (when written with sufficient

flexibility to adapt to regional needs) because they

provide more predictability and stability in leasing decisions, and facilitate more effective public

participation.

Moreover, there is no uniform interstate or interregional approach to a “checklist” for the minimal requirements of a data-gathering effort for

different stages of pre-lease planning and assessment or for different field disciplines. Guidelines

do exist for preparation of the regional lease sale

EIS, in the explicit requirements set out in NEPA

and the CEQ implementing regulations, but the

precise levels of data needed for an evaluation

are not specified by scientific disciplines.

The importance of an adequate data base to

support leasing decisions was expressed in the

1979 regulations implementing the Federal coal

management program. Yet, provisions of the

1979 regulations concerning general requirements for the adequacy of data in land use planning were eliminated in 1982. There also appear

to be no guidelines in the regulations as to the

specific quality or quantity of data related to specific disciplines (e.g., hydrology, wildlife) that are

needed to make the required environmental reviews and decisions. BLM currently is revising its

internal manual for land use planning; a final version which might include such guidelines should

be available in mid-1984. However, as noted

above, internal guidelines may not be as effective in providing guidance to field personnel, do

not provide as much predictability and stability,

are not subject to formal public review and comment, and are not as accessible to the public as

regulatory guidelines and standards.

One option that might provide greater guidance is a scaled indexing scheme for each scientific discipline for which the data base must be

evaluated at different stages of the coal program

(e.g., soil orders 1 through 4, cultural resource

inventory classes 1 through 3). At each stage, a

specific level within the scaled indexing scheme

could be required to be attained before the area

could advance to the next planning stage. For example, while a class 1 cultural resource survey

(a survey of all the relevant literature, published

and unpublished, on cultural resources in the

area) may be sufficient to make informed land

use decisions, a class 3 survey (100 percent field

recognizance) may be required in the mine plan

to support a permit application in areas where

cultural resource sites are numerous. Other

scaled indexing systems could be devised for

each of the scientific disciplines that need to be

addressed. The scales must be flexible enough

to accommodate the wide variation in resources

and available data among tracts and regions; they

should not be “cookbook” standards. Moreover,

such standards and guidelines must ensure that

the levels of data and analysis are technically and

economically feasible and correct for the stage

in the tiered leasing process in which a particular decision is to be made.
Ch. 4—P/arming and Environmental Assessment in the Federal Coal Leasing Program ● 79

Another criticism of the methodologies used

to analyze environmental impacts is directed at

the “worst-case” approach to environmental

impact assessment, which is required by the

Council on Environmental Quality (CEQ) regulations whenever “information relevant to adverse

impacts is essential to a reasoned choice among

alternatives and is not known and the overall

costs of obtaining it are exhorbitant” (40 C.F.R.

1502.22). First, concerns have been raised that

worst-case analysis bears no relation to reality in

that no coal company would develop a mine similar to that described in a worst-case analysis. I n

fact, in most cases a mining methodology cannot be projected accurately for any tract prior to

permit application review, when in-depth coal

resource and environmental inventory data are

available for a tract. Even then, industry doubts

that two mining engineers would develop the

same mine plan. Yet, the leasing program must

contend with tracts being ranked and ultimately

recommended for leasing on the basis of impact

analyses predicated on worst case development

of a tract. Second, if an extreme worst case analysis is used for regional development, it can be

counterproductive in that it unduly alarms (or

raises the expectations of) the public and inhibits

the ability of local communities to plan for development. However, worst-case analyses can

provide a sense of the potential risks posed by

leasing decisions when adequate data or methodologies are not available to quantify likely costs

and benefits of a proposed action.

Major concerns also have been raised about

the recent elimination of the threshold concept

of cumulative impacts as regulatory authority to

drop a tract from further consideration for leasing prior to the EIS. The threshold concept originally was intended to serve as a quantitative

measure of the projected combined impacts of

the development of several mines in one area being evaluated for leasing during one round of

lease sales. In the 1979 regulations, BLM was specifically empowered to halt, suspend, or condition further consideration of areas for leasing during land use planning if analysis indicated that

a threshold level of cumulative impacts would be

reached. Similar regulatory authority was granted

to the RCTs during tract ranking. These authorities

were eliminated in the 1982 regulations, which

use the threshold concept only in a very general

sense as a measure of cumulative impacts in the

EIS. BLM indicates that the threshold concept was

not well understood and had never been used

(6). Development of a workable threshold concept and its implementation through the program

regulations (including authority to drop tracts or

condition their further consideration for leasing)

during land use planning and tract ranking would

address one of the perceived inadequacies in

BLM’s pre-lease planning and assessment and

would reduce the risk of adverse environmental

impacts from the development of several mines

in one area.

Finally, split estate lands can inhibit BLM’s ability to collect sufficient data to support land use

and activity planning decisions and to prepare

the EIS. BLM personnel are not assured access

to such lands for data collection and field studies.

For example, in the Fort Union region, the Burns

Creek tract (see fig. 13) had to be eliminated from

further consideration for leasing due to lack of

data because surface owners denied BLM access

to the land for the collection of baseline data (4).

Although the tract had been in the planning process for nearly 2 years, surface owners had previously granted a mining company access to the

land so that they could collect environmental

baseline data. They did not perceive a need for

a second stint of inventorying, but the company,

which viewed the environmental data it had gathered as proprietary, declined to share the data

with BLM, and the tract could not be evaluated

for environmental compatibility. The uncertainties posed by planning and assessment for, and

leasing of, split estate lands are discussed in

greater detail in a subsequent section of this

chapter.
80 • Environmental Protection in the Federal Coal Leasing Program

Figure 13.— Burns Creek Tract

T

20

N

T

19

N

T

20

N

T

19

N

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).
Ch. 4—Planning and Environmental Assessment in the Federal Coal Leasing Program . 81

UNSUITABILITY CRITERIA

As discussed in chapter 3, 20 unsuitability

criteria have been developed to implement the

Surface Mining Control and Reclamation Act

(SMCRA), other Federal laws, and executive orders (see table 8). The principal objective in applying these criteria is to protect the most sensitive and valuable features of Federal lands, and

to determine whether such lands contain areas

which are unsuitable for all, or certain types of,

surface coal mining operations. The unsuitability

criteria can be divided into three categories: 1 )

those criteria that are mandated or suggested

under section 522 of SMCRA, 2) those that embody requirements under other Federal statutes

which DOI chose to enforce through the unsuitability criteria, and 3) some that DOI selected on

the basis of its judgment of their merits.

As required in the regulations implementing the

leasing program, these unsuitability criteria are

initially applied to all Federal coal lands with development potential during land-use planning or

during the environmental assessment conducted

for preference right lease applications. Additional

unsuitability analyses may be conducted during

activity planning (particularly for lands that were

found to be “acceptable pending further study”

during land use planning). For areas where one

or more unsuitability conditions are found, but

otherwise BLM continues to regard coal mining

as a likely use, the exceptions and exemptions

to each applicable criterion may be applied (see

ch. 3). The land use plan must describe the results

of applying the unsuitability criteria, and must

state which areas could be offered for lease only

subject to conditions or stipulations needed to

bring them into conformity with the relevant

criterion. Such areas may ultimately be leased

provided that these conditions or stipulations are

contained in the lease.

Specific exceptions and exemptions to the unsuitability criteria, relating principally to acceptable mitigation, valid existing rights, and substantial financial and legal commitments are provided

in the regulations. The unsuitability criteria are

not required to be applied to Federal lands which

will be mined by underground methods unless

such mining will produce surface effects to which

a 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., National Parks, Wildlife Refuges, Trails, Wild and Scenic

Rivers, Recreation Areas, Wilderness Areas)

Lands within rights-of-way or easements

Lands within 100 feet of cemeteries and rights-of-way for

public roads, or within 300 feet of public and residential

buildings

Wilderness study areas, while under review for wilderness

designation

Class I scenic areas

Lands used for scientific studies involving food or fiber

production, natural resources, or technology demonstrations and experiments

Publicly owned places on Federal lands which are listed

on the National Register of Historic Places

Lands designated as natural areas or as National Natural

Landmarks

Federally designated critical or essential habitat for

threatened or endangered plant and animal species

10. Lands containing habitat considered critical or essential

for State-designated thhreatened or endangered plant and

animal species

11. Bald or golden eagle nests or sites, including appropriate

buffer zones that consider habitat for prey species

12. Bald and golden eagle roost and concentration areas used

during migration and wintering

13. Falcon cliff nesting sites and appropriate buffer zones

that consider prey species’ habitat

14. High-priority habitat for migratory bird species of high

Federal interest on a regional or national basis

15. Essential habitat for resident fish and wildlife species of

high interest to the State (e.g., active dancing and strutting grounds for sage grouse, sharp-tailed grouse, and

prairie 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 to

use as municipal watersheds

18. Natural resource waters identified in State water quality

management plans and a buffer zone of one-quarter mile

from the outer edge of the far banks of the waters

19. Alluvial valley floors (AVFs) considered important for

agriculture, or land outside an AVF if mining would materially damage surface or underground water systems

that supply the AVF

20. Lands deemed unsuitable by criteria proposed by a State

and 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 five

coal regions studied in this assessment, the unsuitability criteria were applied during both land

use planning and activity planning. Based on

areas in these regions which passed the coal development potential screen, the case studies indicate that an average of approximately 3 to 12
82 ● Environmental Protection in the Federal Coal Leasing Program

percent of these areas were found to be unsuitable for mining (see case studies in vol. 11). However, it was not always possible to determine how

much coal was removed from further consideration for Ieasing due to application of the unsuitability criteria. MFP updates or amendments

usually give acreages or tonnages affected by preliminary application of the criteria during land use

planning (see table 9). However, those acreages/

tonnages frequently change during activity planning but new figures are not included in tract

summaries or EISs. Application of the exceptions

or exemptions to the criteria further cloud the

issue, and make it still more difficult to determine

exactly how much coal was excluded from development due to the criteria. For example in Fort

Union, the MFPs indicate that exceptions apply

to each of the relevant criteria, and in virtually

all instances, specify that actual decisions will be

made later in the process (e.g., “Until it is successfully demonstrated that these ecosystems

[wooded draws] can be restored, they will be protected by exclusion from mining”) (8). In practice, such decisions usually are deferred to mine

plan review. It is clear, however, that BLM relies

more heavily on the unsuitability analysis than

other means of excluding coal lands from leasing, such as the multiple-use screen.

Analysis of the application of the unsuitability

criteria in the five Western coal leasing regions

shows that, in general, those criteria which relate

to features capable of being defined by lines on

a 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 buildings, or roads;

#4. Wilderness study areas;

#6. Scientific study areas; and

#8. Natural areas and national landmarks.

Although the above criteria have been the easiest to apply, they have not been without controversy. For example, in San Juan, the presence

of Navajo grave sites on tracts has not led to unsuitability determinations under criterion #6, nor

has the congressional approval of a National Continental Divide Scenic Trail led to unsuitability

findings under criterion #1. The second draft EIS

for the San Juan River region projects impacts to

recreation on the Trail, including safety hazards,

disruption of the trail location, and impairment

of esthetics (from utility corridors, noise, dust,

etc.). That EIS notes:

Portions of the Continental Divide National

Scenic Trail study corridor [are] routed through

or adjacent to the Star Lake West #2, Gal lo Wash

#1, Hospah #1, Star Lake #1 or Johnson Trading

Post Tracts. The actual treadway for the Continental Divide National Scenic Trail has not been

established, In view of this situation, [criterion

#1] does not require the proposed study corridor

to be designated as unsuitable for surface coal

mining (7).

The basic study route for the Trail is 30 miles

wide and there is a zone of concern 50 miles

wide 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 to

Unsuitability Criteria or Multiple= Use Tradeoffs

PRLAs

Acres Million tons Acres Million tons

High and moderate coal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 464,894 16,612.2 N/A N/A

Non-Federal and committed Federal. . . . . . . . . . . . . . . . . . . . . . – 195,453 –7,635.4 N/A N/A

Available for application of unsuitability criteria . . . . . . . . . . . 269,441 8,976.8 53,335 307.7

Unsuitable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . –3,571 – 128.7 0 0

Available for multiple-use analysis . . . . . . . . . . . . . . . . . . . . . . . 265,870 8,848.1 N/A N/A

Eliminated by multiple-use analysis . . . . . . . . . . . . . . . . . . . . . . –5,108 – 194.9 N/A N/A

Acceptable for further consideration . . . . . . . . . . . . . . . . . . . . . 260,762 8,653.3 53,335 307.7

qncludes 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
Ch. 4—Planning and Environmental Assessment in the Federal Coal Leasing Program • 83

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

6

6

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
84 • Environmental Protection in the Federal Coal Leasing Program

fig. 15). BLM is considering moving the corridor

several miles east to avoid the proposed lease

tracts altogether (7).

Criteria #5–Outstanding scenic areas and areas

of high visual sensitivity, #1 8—Natural resource

waters, and #20—State designated unsuitability

criteria, were not found to be applicable on lands

considered for leasing within the five coal regions

studied.

The most difficulty in application of the unsuitability criteria was associated with criteria #7—

Historic and archaeological sites, #16–Floodplains, #1 7–Municipal watersheds, and #19–AlIuvial valley floors. Problems in application of the

historic and archaeological sites criterion related

to the limited inventory data of these sites available at the land use and activity planning stages,

and the large number of potentially important

sites in certain regions. For example, most of the

tract summaries for Fort Union Round 1 state:

Information on cultural resource values in the

area is scarce. The tract could contain significant

archaeological or historical sites and/or artifacts.

Loss of these cultural resources (due to mining)

can be considered significant, unless more information is collected to indicate otherwise. lnventory being contracted now would raise the

level of confidence that loss would or would not

occur. The loss of identified values, if any exist,

would be long-term and irreversible (4),

The EIS for Fort Union Round 1 indicates that

between 55 and 95 percent of the potential lease

areas had not been inventoried for cultural resources, depending on the leasing alternative (see

table 10).

Application of this criterion recently has become more controversial because the regulations

were changed in late 1983 to require that a site

be publicly owned and listed on the National

Register of Historic Places before criterion #7 applies. Previous regulations also included privately

owned sites eligible for listing in the National

Register. This 1983 rule change was a direct response to the debate over inclusion in the Dunn

Center lease tract in Fort Union of portions of the

Knife River Flint Quarry-a site eligible for listing

(18).

Problems associated with application of criteria

#16, #17, and #19 related principally to the definition of key terms in the criteria, the lack of agreement as to the extent of data necessary to apply

the criteria, and how the protected resource

would be affected by mining. For example, in

Uinta-Southwestern Utah, Forest Service and

BLM staff apparently have different interpretations

of what constitutes a municipal watershed, and

disagreements arose over the inclusion of watershed in a tract offered for lease (10c). The criterion for alluvial valley floors (AVFs) is the only

one for which the program regulations specifically

allow deferral of application to mine plan review,

and final determinations regarding the identification of AVFs are almost always left to the Office

of Surface Mining (OSM) and the State permitting agencies. It is extremely difficult to determine, prior to leasing, the exact boundaries of

identified alluvial valley floors and whether mining would be prohibited on or adjacent to AVFs

because it would interrupt, discontinue, or preclude farming, or materially damage water that

supplies the AVF (see fig. 16).

With respect to the application of the unsuitability criteria related to wildlife (criteria #9 through

#15), various approaches have been taken in land

use and activity planning. In most cases, the variations in approach can be traced to differences

in professional judgment on the ability to mitigate wildlife impacts. For example, until recently

the standard approach for eagle protection involved designating a roughly one-half mile buffer

zone around identified eagle nests where mining operations and seasonal access would be controlled. This leaves an island of unmined coal,

which increases the difficulty of mining and reclamation. As a result, some regions have experimented with moving eagle nests in cooperation

with the U.S. Fish and Wildlife Service. Although

the long-term success of these experiments has

yet to be determined, the results to date seem

promising. However, not all BLM field personnel in all regions were aware of these experiments, and the willingness or ability of Fish and

Wildlife Service offices to participate in such experiments varied among regions.
Ch. 4—Planning and Environmental Assessment in the Federal Coal Leasing Program . 85

1

/’

\

/’

.

.>/

I

I

L.—-.— .

34-756 0 - 7 - QL3
Table 10.–Fort Union Region Known Cultural Sites by Type

Stone circle Buried site Stone Lithic Historic Percent

Lithic 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 exchange

proposal:

Northern

Portion. . . . . . .

Southern

Portion. . . . . . .

Total . . . . . . . . .

Total +

Alternative 3..

27

102

126

116

129

137

4

42

44

44

44

46

46

0

9

9

9

9

9

0

13

13

14

14

14

14

0

1

1

1

1

2

4

0

6

8

11

11

11

11

1

2

14

18

16

16

22

0

12

33

38

42

54

1

2

10

10

13

13

18

0

4

5

5

5

5

5

0

2

2

2

2

2

2

0

0

1

3

3

3

4

0

119

234

276

272

292

326

6

119-427

234-766

276-1,016

272-1,056

292-1,185

326-1,463

6-30

54

66

72

72

75

77

87

75

96

85

90

76

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

4 0 0 0 0 0 1 2 0 0 0 0 6 6-295

7

11

0 0

0 0

0

0

0

0

0

0

2

4

1

1

0

0

5

5

17-267

23-528

1

1

137 44 9 14 1 11 20 37 11 5 3 8 299 299-1,544

amemti 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.
Ch. 4—Planning and Environmental Assessment in the Federal Coal Leasing Program ● 87

Figure 16.—Stylized Diagram of an Alluvial Valley Floor

Subirrigated

alluvium

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

Application of the criteria relating to threatened

and endangered species, migratory birds, and

protecting habitat of species of high state interest

generally was resolved by the use of mitigation

measures which allowed areas with these characteristics to be carried forward in the process

(see discussion of mitigation measures). However,

in some regions considerable disagreement exists in defining wildlife habitat and its regional importance, particularly critical winter range. For

example, in the Green River-Hams Fork region,

critical winter range for mule deer, elk, and

pronghorn antelope is an important issue. Three

potential lease tracts exemplify the variation in

treatment of this issue in the leasing process:

Atlantic Rim: Critical elk winter range occurs

on part of the tract. Up to 550 elk (19 percent

of the Baggs herd) winter on and near the tract.

During land use planning, a decision on the suitability of this tract was deferred until more information on the herd’s range was available. However, there was concern from State and local

governments that if, subsequent to the study, this

tract were to be found acceptable, the area could

not be offered unless it had been included in land

use and activity planning. Consequently, Atlantic

Rim was carried through activity planning and included in the preferred alternative in the EIS for

Round II (2).

Northeast Cow Creek: Critical winter range for

elk exists on this tract and could be adversely affected by coal transportation to and from the proposed underground mine. As with Atlantic Rim,

during land use planning BLM decided to defer

determining acceptability for leasing pending the

outcome of wildlife studies. Based on local interest in coal development, the tract was carried

through activity planning. However, it was not

included in the preferred alternative for Round

II (2).

Red Rim: SMCRA allows citizens to petition for

or against designation of lands as unsuitable for

surface mining. The National and Wyoming Wildlife Federations petitioned to have the Red Rim

tract (“deferred pending study” during Round I

and considered acceptable for Round II) declared

unsuitable. The petition alleges that critical winter range for pronghorn antelope would be adversely affected by mining, and that reclamation

is not economically feasible. An intervention petition was filed by the surface owner, arguing that
88 ● Environmental protection in the Federal Coal Leasing Program

the tract was reviewed for suitability during planning for Round I lease sales. A final Petition Evaluation Document/EIS is scheduled to be completed in April 1984. BLM has found it difficult

to evaluate the unsuitability petition “since

no site-specific mining plan . . . has been submitted. ” The analysis therefore draws on previous BLM and USGS studies on the tract, as well

as data on mining and reclamation at other active coal mines in the area and from the probable lessee (2).

These examples illustrate some of the difficulties in applying the unsuitability criteria related

to wildlife. Accurate data on wildlife habitat and

its local or regional significance often are not

available during land use planning (or even activity planning), and it is unclear whether BLM has

sufficient expertise to determine whether a mitigation plan submitted pursuant to a lease stipulation will be adequate. Moreover, disagreements

among experts on these factors mean that decisions on wildlife-related unsuitability criteria often

are political rather than biological or ecological.

Finally, it is important to note the 1982 rule

changes concerning the unsuitability assessment

procedures. Under these changes, which are discussed in greater detail in chapter 3, the applicability of the exceptions to the unsuitability

criteria was expanded. The 1979 regulations specified that the exceptions should only be considered when one unsuitability condition exists in

an area free of other unsuitability conditions;

the 1982 rules provide for application of the exceptions and exemptions in areas where one or

more unsuitability conditions are found (43

C.F.R. 3461.3-1). Given the already extensive use

of exceptions under the 1979 regulations, and the

fact that most areas reviewed for unsuitability to

date were evaluated under those regulations, the

revised rule may have little effect on current practice in application of the unsuitability criteria.

Other changes made in the rules governing the

use of the unsuitability criteria include:

● the narrowing of criterion #7 for historic and

archaeological sites;

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

●

teria (separate from the review of the overall

land use plan); and

elimination of agricultural crop production

as a use of rights-of-way on Federal lands

meriting an unsuitability designation.

Analysis

In most instances, application of the unsuitability criteria has not been controversial. However, when controversies do arise, one of the

most basic concerns associated with the criteria

relates to BLM’s ability to make definitive findings during land use planning and/or activity planning as to the unsuitability of areas for mining.

Under the present leasing program, unsuitability tends to be viewed as a “black and white

issue” (i.e., a piece of land is either “acceptable”

or “unsuitable”). This means that the unsuitability

criteria usually eliminate only those lands with

obvious “fatal flaws, ” giving careful consideration to the exemptions and exceptions to the criteria as provided in the regulations. Where an

unsuitability decision is not clear-cut, due to

limitations on available data or other constraints,

potential problems are “flagged” to be evaluated

in detail at the activity planning or mine plan review stage when additional data become available. As a result, there has been little justification for BLM to “bite the bullet” in application

of the unsuitability criteria, and difficult decisions

continually have been deferred and the exceptions and exemptions used extensively (see discussion of “Deferral of Decisionmaking”).

Rather than finding areas to be unsuitable, BLM

generally prefers to “exclude” areas within a tract

from mining (through lease stipulations) unless

the lessee demonstrates that impacts can be mitigated or lands reclaimed (6). This approach maintains flexibility, because it is possible at mine plan

review to reinstate such “excluded” areas through

mitigation requirements, but tract boundaries

cannot be expanded to redesignate “unsuitable”

areas as “acceptable” once a lease has been

issued. Thus, this approach may better accommodate future changes in mining and reclamation 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 as

noted in the Fort Union Coal Region Case Study;

see vol. II). However, it also can be viewed as

further evidence of deferral of decisionmaking.

The relative merits of earlier versus later decisions

on environmental compatibility are discussed further in the section on “Deferral of Decision making, ” below.

Continued concern about the application of the

unsuitability criteria and the extent of utilization

of the exceptions and exemptions for any particular tract can be reflected in the summary ranking for that tract by the Regional Coal Team. For

example, concerns about eagle protection, floodplains, and alluvial valley floors contributed to

the RCT’s decision to lower the ranking of the

Lay Creek Tract in the Green River-Hams Fork

Coal region (see table 11). This tract has not been

included in the preferred alternative in either

round of leasing in this region, but could be

offered in Round 1 I under a maximum leasing

scenario.

Data were insufficient in many cases to apply

the criteria properly. The EISs for all of the regions acknowledge data deficiencies, particularly

about historic and archaeological sites, critical

winter range for wildlife, municipal watersheds,

and alluvial valley floors. The cutbacks in the resource inventory program within BLM for the colTable 11.—RCT Rankings for

Iection of additional basic resource data may

have contributed to this problem (see discussion

of “Data and Analysis”). Data collection and

availability in split estate areas also create problems in the application of the unsuitability criteria

(see discussion of “Leasing on Split Estates”). The

amount of coal-bearing lands that must be reviewed in the Iand use planning process also can

have a significant effect on the quality and quantity of data available to support application of the

unsuitability criteria (i.e., the larger the area, the

less likely that sufficient high quality data will be

available to make final unsuitability determinations).

Numerous instances of “acceptable pending

further study” determinations relative to application of the unsuitability criteria were found in the

five leasing regions. (No finding of “unacceptable

pending further study” is utilized by BLM.) The

more complex the criterion, the greater the likelihood that its application will be deferred (e.g.,

the widespread practice of taking advantage of

the option to defer application of the alluvial

valley floor criterion, deferral in application of

criterion #1 5—protection of habitat of species of

high state interest). BLM points out that no lease

tracts have been offered where an “acceptable

pending study” determination still pertains, although numerous tracts have included lease stipulations requiring data collection to resolve

Lay Tract, Rounds I and II

Ranking factors Round I Round II

Coal economics . . . . . . . . . . . . State: medium —a

BLM: high

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

BLM: medium

Social economic . . . . . . . . . . . . State: low —a

BLM: high

Summary ranking . . . . . . . . . . . State: low moderate

BLM: high

Comments . . . . . . . . . . . . . . . . .State ranked as least desirable of Colorado Lack of transportation-diverse surface

tracts because of transportation system ownership—conservation of resource—

concerns. Possibility of population potential wildlife and reclamation

impacts to MaybeIl. BLM believes railroad problems—alluvial valley floor and

will be extended from the east. One of the lambing areas

most competitive tracts due to its

isolation from existing operations. AVF

divides 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 tract

reclaimability (see discussions of “Mitigation Requirements” and “Deferral of Decisionmaking”).

It should be emphasized that considerable disagreement exists as to the extent of information

needed to make informed decisions about the unsuitability criteria. For example, what level of

survey is needed prior to a lease offering to make

supportable determinations about historic and archaeological sites? These decisions are scheduled

to be made during the first stage of the leasing

process, when the fewest data are available and

the largest land area must be evaluated. If the

leasing program continues to experience problems related to inadequate data to make final unsuitability determinations during land use planning, perhaps the program could be restructured

to explicitly allow those determinations to be deferred to activity planning, so long as the data

would be available prior to final tract ranking and

selection of the tracts to be included in the preferred alternative.

BLM has undertaken some special data-collection efforts to address problems encountered in

application of the unsuitability criteria during land

use planning (e.g., wildlife studies in several regions after preparation of the MFP Update/

Amendment revealed data gaps). However, time,

staff, and budget constraints largely precluded

substantial collection of new data for purposes

of applying the unsuitability criteria (e.g., there

was little opportunity for field studies in some regions). In addition, in some cases, participation

by other agencies in application of the unsuitability criteria was limited. Finally, it was noted that

in numerous cases BLM did not use relevant existing information (e.g., information contained in

permit applications for nearby existing or proposed coal mines; see discussion of “Data and

Analysis”).

Possibilities for Expansion

of the Unsuitability Criteria

A number of recommendations have been

made for additional unsuitability criteria, including criteria for wetlands, Tribal sacred sites, single

grave sites (as opposed to cemeteries), paleontological sites, producing oil and gas wells, other

reserved Federal lands (e.g., military reservations),

air quality, and reclaimability. Some parties also

believe that an additional criterion relating to “insufficient data” is merited.

Wetlands typically are protected under one or

more of the existing unsuitability criteria (e.g.,

floodplains or alluvial valley floors). Oil and gas

wells and other reserved Federal lands generally

come under the multiple-use screen, although

that screen has not been applied consistently in

such circumstances (e.g., many of the tracts considered acceptable for leasing in Fort Union overlap a producing oil field and important defense

installations). As a result, it has been suggested

that a new criteria be established for producing

oil/gas areas, and that the exclusion for reserved

Federal lands, such as military reservations, be

reinstated.

In the San Juan region, considerable debate has

centered on how to deal with sacred sites. Currently, lands containing such sites continue in the

leasing process but with stipulations aimed at requiring consultation and allowing ceremonies of

local Native Americans when such sites will be

disturbed by mining. With regard to single grave

sites, the general approach has been either to

establish buffer zones (similar to protection of

cemeteries) if the grave sites are to remain in

place or to mitigate the impacts (including consent required under State law) if they are to be

moved.

Paleontological resource issues have been

much debated (particularly in San Juan) with little agreement as to the value of in-situ preservation. Responses to the problem have varied from

temporarily excluding areas from leasing (e.g., the

Fossil Forest in New Mexico) to developing plans

to deal with paleontological sites encountered

during mining (10a; 8b).

With respect to an unsuitability criterion relating to air quality, problems resulting from mining (principally fugitive dust) generally are controllable through specific mitigation measures to

be applied at the mine plan stage. Compliance

with air quality laws and regulations is incorporated by reference to the Clean Air Act in coal

leases and in surface mine permits.
Ch. 4—Planning and Environmental Assessment in the Federal Coal Leasing Program ● 91

Considerable debate exists as to the need for

an additional unsuitability criterion for reclaimability. Currently, reclamation potential is assessed by BLM during activity planning and the

results of that assessment considered by the RCT

in tract ranking. (However, there appears to be

little relationship between such assessments of

reclamation potential and overall tract rankings;

see table 12.) Some participants in leasing firmly

believe that the intent of section 522 of SMCRA

is that areas should be excluded from leasing if

reclamation pursuant to SMCRA is not technologically and economically feasible. Further, they

contend that it is only prudent to gather the necessary data and make the reclaimability decision

during the leasing process because permitting

agencies are more likely to impose mitigation requirements than to exclude areas from mining.

Therefore, from both statutory and policy standpoints, some parties recommend that an unsuitability criterion relating to reclaimability should

be applied in the leasing program. The National

Resources Defense Council (NRDC) currently is

suing BLM over the lack of an unsuitability criterion for reclaimability (15).

Other participants in leasing contend that reclaimability is assessed implicitly through application of all 20 of the unsuitability criteria, or that

reclaimability can only be assessed appropriately

at the mine plan review stage when sufficient detailed information regarding soils, vegetation, and

the hydrologic system will be available. In addition, at that stage, SMCRA places an explicit

affirmative burden on the permit applicant to

demonstrate that reclamation is technically and

economically feasible. A positive finding on reclaimability prior to leasing could jeopardize the

ability of a permitting agency to deny all or part

of a mine plan due to a failure to demonstrate

successful reclamation.

MITIGATION REQUIREMENTS

The Programmatic EIS issued by DOI in 1979

for the Federal coal management program defines

“mitigation” as “. . . a policy, procedure, or action intended to avoid, minimize, or help compensate for damage that could be caused by decisions made by the Department of the Interior

about the management of Federal coal” (3). Mitigation is intended to protect individuals and

communities from potential (or projected) social

and economic impacts, and to protect the physical environment (3). Mitigation techniques can

be specific or generic, and can address either sitespecific or cumulative impacts. They can be designed to accommodate uncertainties about potential impacts or tailored to cover well-understood mining and reclamation situations.

Requirements for impact mitigation included in

a lease or mining permit might reiterate requirements of current laws and regulations, or they

may impose higher standards. They usually apply

to lease tracts, but may cover offsite locations affected in some manner by the mining and reclamation operations.

This section discusses the role of lease stipulations as a means of ensuring that Federal coal is

developed (and reclaimed) in an environmentally

compatible manner. The section outlines the rationale for imposing stipulations and conditions,

discusses their uses and when they might be imposed, and documents the controversy that surrounds their use. Mitigation requirements for

social or economic impacts of coal leasing or mining are not addressed in this report. * Other

means of achieving mitigation, such as excluding

areas from mining based on multiple-use tradeoffs

or the unsuitability criteria, are discussed

separately.

*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” ShOUld

be a State responsibility. Therefore, the memo directs that “the Bureau of Land Management should not be developing social or economic mitigation stipulations for Federal coal leases” (1 1a).
92 • Environmental Protection in the Federal Coal Leasing Program

I I I I I I I

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Xxx x Xxx x

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Ch. 4—Planning and Environmental Assessment in the Federal Coal Leasing Program • 93

The Role of Mitigation Requirements

The development of mitigation requirements

is an essential element of compliance with the

National Environmental Policy Act (NEPA) and

with the specific goals and standards of FCLAA,

FLPMA, and SMCRA. Based on these statutory

mandates, the Federal coal management program

was designed to employ increasingly specific environmental mitigation measures from land use

planning through mine development and reclamation.

Portions of coal resource areas maybe dropped

from further consideration for leasing throughout the process (mitigation through “avoidance”). For example, application of the unsuitability and multiple-use screens during land use

planning mitigates impacts by screening out areas

where other resource values are deemed more

important than coal development (see table 9).

Alternatively, decisions on particular areas might

be deferred until the impacts can be mitigated

more effectively (after new mining or reclamation techniques are developed), or are considered necessary (e.g., in an energy crisis).

The EIS provides a further opportunity for mitigation of adverse impacts during pre-lease planning. The CEQ regulations implementing NEPA

require inclusion of “appropriate mitigation

measures” where “mitigation” is defined as:

avoidance; minimization; rectification (repair,

rehabilitate, restore); reduction over time; or

compensation (40 C.F.R. 1502.14(f)). A lease typically includes stipulations from these and other

sources intended to ensure mitigation, or at least

to alert the permitting agency and potential bidders that mitigation will be necessary.

Toward the end of the leasing process, when

more comprehensive data and analyses are available, conditions may be imposed on a mining

permit to require mitigation of a specific environmental impact, to avoid an impact completely,

or to specify use of a technology or methodology to achieve mitigation. The final check on mitigation is onsite inspection and enforcement of

the laws and regulations (and policies) designed

to control the adverse environmental impacts of

coal development. Monitoring and inspection of

ongoing mining operations generates additional

information which can help improve the understanding of environmental effects and the efficacy

of mitigation measures.

All of the mitigation opportunities listed above

have been employed in the coal regions studied

in this report. However, the limitations on the

adequacy of pre-lease data and analyses (discussed separately), as well as departmental policy to make as much coal available for lease as

is environmentally acceptable, have meant that

the frequency of the use of pre-lease mitigation

measures and the stringency of the requirements

imposed have varied from region to region.

Origins of Mitigation Requirements

All parties to the Federal coal management program have opportunities to propose lease stipulations or permit conditions they consider necessary to reduce or compensate for adverse

impacts, although BLM and the permitting agencies have the final responsibility for imposing

stipulations or conditional In generaI, the public

participates more actively in pre-lease planning

than mine plan review, and thus is more involved

in developing lease stipulations than permit conditions. However, substantial variation exists

among regions in terms of the degree to which

parties other than BLM and potential lessees were

involved in formulating lease stipulations, and the

types of concerns introduced by those parties.

For example, well-organized public input resulted in development of a series of subsidence

and water resource protection stipulations for a

lease tract in the Colorado portion of the Uinta

region. In the same region, U.S. Forest Service

concern led to use of a relatively detailed lease

stipulation regarding monitoring of subsidence

(see Box A). National Park Service and public

concern resulted in specific mitigation requirements for the protection of cultural resources in

the San Juan coal region. Similarly, Federal and

State wildlife authorities precipitated special lease

stipulations for protection of game and nongame

species in Green River-Hams Fork, Fort Union,

and San Juan, and the U.S. Fish and Wildlife Service has been instrumental in the development of
many of the more substantive mitigation measures to protect threatened and endangered wildlife species.

Proposed lease stipulations typically are summarized for review three times during the preIeasing process: when the Management Framework Plan is updated or amended (or an RMP

is prepared) to support leasing decisions, during

Site Specific Analysis, and in the EIS. However,

their evolution usually is not well-documented

and may be difficult to trace. Final versions of

stipulations are published at the time of lease offerings and when the lease is issued. Because detailed descriptions of specific mining operations

are not available when a tract is leased, stipulations are reviewed and revised, if necessary, at

each step of the leasing process and again at the

mine plan stage. Any modifications made to stipulations after a lease is issued must be agreed to

by both BLM and the lessee. Permit conditions

may be imposed during review of the mining and

reclamation plan, or inspection and enforcement

of a mining operation. In general, the level of

technical and site specificity in mitigation requirements increases over time as more data become available. Lease stipulations imposed early

in the process are more likely to exclude areas

from further mining, while permit conditions tend

to accommodate mining activity as long as it is

conducted in an environmentally compatible

manner.

Land Use Planning

Decision documents for updating or amending

the Management Framework Plan (MFP) or preparing a Resource Management Plan (RMP) usually contain mitigation measures that have

evolved from staff field work, earlier planning

activities, consultation with other regulatory agencies, application of the unsuitability and multipleuse screens, and public participation. For example, in applying the unsuitability criteria, additional inventories needed to make unsuitability

determinations might be described, or mitigation

techniques that will protect the affected resources

may be identified, or areas that are closed to certain activities may be delineated (see fig. 17).

Thus, the San Juan-Chaco MFP Update limits disturbance of paleontological resources in the Fossil

Forest area for 10 years and protects known important Chacoan and other archaeological sites

and Navajo sacred sites through lease stipulations
Ch. 4—Planning and Environmental Assessment in the Federal Coal Leasing Program ● 95

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 subsidence

in particular areas. Other stipulations proposed

in that MFP Update specify that impacts to wildlife

habitat will be mitigated, require compliance with

any State-approved water replacement plan, and

mandate post-mining transfer of a lessee’s water

wells to BLM.

Lease stipulations developed during land use

planning are carried forward to, and reassessed

during, activity planning. However, the documents supporting a decision to impose stipulations during land use planning typically include

little documentation. As a result, it maybe difficult for interested parties to determine whether

sufficient data were collected to justify any suggested stipulations or other recommendations

such as declaring areas acceptable or unsuitable

for further consideration for leasing.

Activity Planning

During activity planning, the analysis performed to update an MFP to support leasing decisions is refined and site specific analyses are completed on tracts carried forward from land use

planning as acceptable for further consideration

for leasing. With the development of more comprehensive environmental resource data during

activity planning comes the potential to identify

mitigation requirements that are more tract-specific, as well as to find major obstacles to mining

that were not identified earlier. However, because of the tract-specific nature of the analysis

that supports activity planning, little consideration can be given to the cumulative impacts of

the development of several tracts within one area

or to the mitigation of such cumulative impacts

at this stage unless a requirement for mitigation

of cumulative impacts has carried through from

the MFP Update.

The detailed inventorying and analysis required

for activity planning can be a time-consuming

process, and schedule and staff limitations can

mean that lease stipulations developed during

land use planning may not be reevaluated at this

stage. In some instances, “boiler plate” stipulations are developed in SSAs. For example, in the

San Juan region, the SSAs included 12 generic

mitigation requirements (later dropped) applicable to the surface and/or underground tracts considered acceptable for leasing.

During preparation of the regional ElS–the second major environmental analysis in activity planning—the more significant anticipated impacts of

mining on lease tracts are evaluated in detail, including potential cumulative impacts, and alternative or additional mitigation requirements that

could reduce or eliminate adverse effects are presented for consideration by the Secretary in the

final leasing decision. Because EISs are based on

a “worst-case” analysis of the potential impacts

of mining, they tend to report a wide range of

possible mitigation measures, including the lease

stipulations identified in the MFP Update and

SSAs. For example, the second draft EIS for the

San Juan River region includes eight pages of

“alternative mitigating measures” for air quality,

paleontology, water resources, wildlife, cultural

resources, wilderness, recreation, land uses,

transportation, social economic factors, and

American Indian concerns. That section is prefaced by the following statement:

The analysis of the environmental effects of the

proposed action and major program alternatives

. describes the environmental effects remaining after application of and compliance with all

regulations, statutes, standard lease terms and

agency committed measures such as special

stipulations to carry out the results of the application of unsuitability criteria. This section on mitigating measures describes additional actions that

might be taken to further reduce the adverse effects of the proposal. In accordance with CEQ

regulations, these additional measures are not

included in the proposed action or analyzed in

[the ElS]. Some of the measures listed are alternatives to existing requirements; others cover

new areas. These measures could be required

by BLM, 61A, OSM or the State of New Mexico.

A decision whether to adopt any of these measures will be made as part of the process to

decide whether and how much coal will be

leased (7).

As noted previously, proposed lease stipulations can be refined or eliminated at any stage

of the leasing process, and some of those developed during land use planning and SSA may not

be carried forward in the regional EIS if the analysis in that document indicates that less restric-
Ch. 4—Planning and Environmental Assessment in the Federal Coal Leasing Program . 97

tive mitigation measures are adequate. This is the

case with the boiler-plate stipulations for the San

Juan region (mentioned above), which were

dropped in the EIS (10a). Similarly, pre-EIS stipulations requiring data collection on particular tracts

in Powder River were reevaluated and made discretionary in the EIS (that the data collection

“may” be required at the mine plan stage (10b)),

and a stipulation in Uinta that originally restricted

all surface activities in a particular area was

relaxed to allow a mine portal (10c). Such

changes provide greater flexibility for the permitting agency and the operator, but leave BLM

open to charges that it “backed-off” on mitigation

requirements, and undermine the program’s predictability and stability.

On the other hand, lease stipulations may not

only be carried forward to the EIS on a regional

lease sale, but made more stringent at that stage.

For example, in Uinta an early stipulation requiring study and coordination of construction activities that might affect water supply was strengthened to require protection of the water supply (10c).

Secretarial Issue Document

The final pre-lease review of proposed stipulations occurs with the Secretarial leasing decision

as documented in the SID. Again, mitigation requirements can be imposed, relaxed, strengthened, or eliminated during this review. For example, in Fort Union, recommended mitigation

techniques for the Knife River Flint Quarry (eligible for listing in the National Register) were carried forward from the MFP, but were appealed

by the operator interested in the tract. The SID

notes that the issue “is currently being addressed

by a proposed rule change” (now final) that requires actual listing in the National Register in

order for an area to be considered unsuitable

under criterion #7 (18). This decision on the flint

quarries aroused such controversy that the two

most sensitive sections of land were deleted from

the tract for political reasons prior to the lease

offering (1 1). However, mitigation measures essential to the identification of potential impacts

in the EIS are not supposed to be relaxed or

dropped in the SID, unless the impacts of doing

so are analyzed in that document, or unless the

Secretary finds the mitigation measure to be unnecessary (6).

Mine Plan Review

There are three major issues related to mitigation measures at the mine plan review stage.

First is the use of permit conditions, which

typically are developed by the reclamation

agency reviewing the permit application and are

then reviewed and negotiated by the applicant.

When the regulatory agency decides that a permit may be issued with certain conditions, the

proposed approval, along with the conditions, is

made available for public review. The policy of

most State permitting agencies is to keep permit

conditions to a minimum; i.e., to avoid imposing

conditions on permits as a substitute for information that the permitting agency needs to make

findings of compliance with SMCRA and applicable State statutes and regulations. Thus, in the

view of permitting agencies, the more specificity

needed in permit conditions, the less adequate

the plan being reviewed is likely to be.

Second, lease stipulations are reviewed at this

stage, and may be revised or dropped if BLM and

the lessee agree. Because most of the tracts Ieased

since 1979 do not yet have approved mine plans,

it is not possible to determine whether lease stipulations developed for those tracts will remain

unchanged throughout the permit and mining

process.

Third, does BLM have, or should the Bureau

be expected to have, the expertise to evaluate

responses or revisions to lease stipulations, or

should the permitting agency be responsible for

that evaluation.

Reasons for and Types of

Mitigation Requirements

Mitigation requirements can provide means of

resolving data inadequacies, alerting regulators

and bidders to problem areas, resolving conflicts

among parties, providing for the reclamation or

replacement of resources, avoiding impacts altogether, deferring decisions, specifying site specific mining or reclamation techniques, and compensating 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 stipulations and/or permit conditions is as a mechanism

for resolving data inadequacies. In the case of

lease stipulations, these might merely defer a

decision on environmental compatibility and alert

the permitting agency to the need for additional

data, or they might require the lessee to collect

specific data. For example, in the Uinta region,

a lease stipulation for a proposed underground

mine requires detailed geotechnical studies prior

to construction of a portal and associated surface

facilities, because the area is prone to landslides

(10c). Other examples include lease stipulations

requiring inventories of water quality and/or

quantity in Uinta-Southwestern Utah and Powder

River; of cultural resources and paleontology in

San Juan and Uinta; and of wildlife habitat in Fort

Union (see Box B). Some public interest groups

have expressed concern that, to the extent that

lease stipulations are being used to fill data gaps,

they fail to provide adequate protection for resources yet to be identified.

Permit conditions also can be used to require

the collection of additional data in order to make

final decisions about mining or reclamation methods in particularly sensitive areas. In most cases,

permit conditions for data collection specify monitoring of certain aspects of mine development

in order to better understand particular types of

impacts.

Mitigation requirements specifying data collection raise several issues. Because of the expectation that BLM will have collected sufficient data

for informed decisionmaking pre-lease, some

data-related lease stipulations are perceived as

indicating that BLM was not able to fulfill its land

use and activity planning mandate (see separate

discussion of “Deferral of Decisionmaking”). A

parallel concern arises when the regulatory agency issues a permit with conditions that require

additional data. However, permit conditions typically do not defer decisions (do not approve mining in specified areas pending evaluation of the

data), unless the additional data needs are keyed

to determining appropriate mitigation or reclamation techniques.

Alternatively, if pre-lease data are viewed as

adequate, then lease stipulations requiring the

lessee to collect additional data may be viewed

as duplicating or usurping the authority of the permitting agency. For example, proposed stipulations requiring an inventory of water rights and

use on a tract in Uinta (the Paonia D Seam tract;

see below), have been criticized as an unnecessary restatement of State procedures applied to

all such mining situations, while environmental

groups and local residents feel the added requirements are necessary (10c).

In other instances, lease stipulations may be

more stringent than, or in conflict with, the permitting agencies’ normal procedures. For instance, in the San Juan region, a standard BLM

proposed lease stipulation requires interruption

of fossil-disturbing activities if fossils of possible

significant scientific interest are uncovered. The

State of New Mexico originally had a separate voluntary procedure for mitigating paleontological

impacts. Although no conflict might have existed,

the differences between the two measures had

not been assessed completely when the State put

forward a revised mitigation program, which currently is under review by BLM (6).

A second major concern about lease stipulations requiring data collection is the ability to

evaluate the results. For instance, in the case of

the paleontological stipulation in San Juan (mentioned above), extensive disagreement still exists

among experts on the appropriate mitigation

measures for important fossil resources in the

area. Thus it is unclear who will evaluate the information from lease tracts if fossils of possible

scientific interest are found during mining, and

what criteria will be used to determine whether

the data submitted are adequate to satisfy the stipulation. Other lease stipulations that pose this

issue include requirements for ethnographic studies in San Juan, for hydrologic data in Powder River, for extensive ecological resource monitoring

in Uinta, and for certain wildlife studies in Green

River-Hams Fork.

Options for resolving concerns about lease stipulations that require data collection include using

discretionary 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 permitting

agency to the possible need for additional data,

and thus provides flexibility at the mine plan review (the Powder River hydrologic data stipulations mentioned previously); or providing that the

stipulations are not intended to conflict with or

preempt regulatory authority and can be renegotiated during mine plan review.

Raising Red Flags

A second common use of lease stipulations is

to raise “red flags” indicating that special attention should be paid to particular segments of the

mining and reclamation plan (see Box C). This

use of stipulations usually reflects a desire to alert

permitting agencies or bidders to potential environmental problems associated with a tract. As

noted above, such stipulations also are useful for

indicating potential data-collection needs to remedy anticipated deficiencies in baseline data required for the mining and reclamation permit.

For example, the lease stipulation mentioned

previously that requires detailed geotechnical

studies in the Uinta region might duplicate State

practices, but it also serves as advance notice to

the lessee that more detailed information will be

required in the mine plan than might be expected

under normal circumstances. Therefore, the stipulation might help avoid delays in processing of

the permit application. Other lease stipulations

clearly are intended to suggest mitigation techniques that otherwise might be overlooked at the

permit review stage (e.g., the proposed stipulations governing the treatment of sacred sites in

the San Juan region).

Resolving Conflicts

When all parties to a particular leasing or permitting decision get together to develop mitigation requirements, those requirements represent

a form of conflict resolution. The most notable

instance of this is the detailed set of special lease

stipulations for the protection of water and water rights at the Paonia D Seam Tract in the Uinta

region, which were negotiated by local residents,

environmental groups, the probable lessee* the

State, and BLM (see Box D). An example of a

more general conflict resolution situation is the

paleontological stipulation in San Juan, which resulted from disagreement among scientific experts and among agency decisionmakers over the

proper mitigation measures for regional fossil

resources.

Tract-specific negotiated lease stipulations raise

concerns if ail parties to the leasing decision are

not involved in the negotiations. For instance, if

*The Paonia D Tract was not considered a maintenance tract

under the program regulations, even though the company with the

most interest in the tract bid on it as a means of continuing operations at an adjacent mine and was the sole bidder.
Ch. 4—Planning and Environmental Assessment in the Federal Coal Leasing Program ● 101

solved in the mining plan.”

SOURCE: 1981 Tract Summar&s.

more than one company had been interested in

the Paonia D Seam, the competition might have

been chilled by the idea of having to comply with

lease stipulations negotiated by another company. Moreover, some companies feel that conflict resolution stipulations tend to be more detailed than other types, and thus unduly constrain

flexibility at the permit review stage.

permit conditions also can be used to resolve

conflicts through public and interagency review

requirements. However, the technical nature of

the mine plan and permit application usually restricts such public review. Moreover, except in

the few instances when an EIS is issued on a mine

permit, the review period and geographic extent

of notice of an opportunity to comment usually

are limited.

Detailing Mitigation Techniques

Fourth, tract-specific lease stipulations and permit conditions are used to detail particular mining, reclamation, or mitigation technologies or

methods. Thus, the lease stipulations for the

Paonia D Seam tract in Uinta-Southwestern Utah

specify water re-routing requirements (see Box

D), and stipulations negotiated for the Circle West

Ill tract in Fort Union provide detailed options

for the recovery, replacement, or mitigation of

wildlife habitat loss (see Box E).

Lessees and permitting agencies view lease stipulations that detail particular mining or mitigation

techniques as at least redundant (when they repeat requirements that would be incorporated in

the mine plan or imposed as permit conditions),

34-756 0 - 8 - QL3
Ch. 4—Planning and Environmental Assessment in the Federal Coal Leasing Program ● 103
104 ● Environmental Protection in the Federal Coal Leasing Program

and at most as usurping the permit agencies’

authority to make findings under SMCRA about

technical and economic reclamation potential

and methodologies. In all cases, such lease stipulations, if not renegotiable at the permit application review, may remove the flexibility needed

to adapt to new data and changes in technology

and methodology (e.g., the ability to move eagles’

nests). Detailed technical lease stipulations that

incorporate quantitative standards also tend to

limit the permitting agencies’ and lessee’s ability

to adapt to changing conditions or new information.

Excluding Areas From Mining

Lease stipulations or permit conditions can be

used to exclude areas from mining (or from certain types of mining). In some cases, avoidance

measures relate to particular areas within a leased

tract. For example, lease stipulations or permit

conditions might establish buffer zones around

sensitive areas such as wildlife habitat, which may

be absolute, seasonal, or conditioned on wildlife

presence, or might specify particular types of impacts that are not allowed on leased tracts (e.g.,

“no surface disturbance,” which usually means

underground mining only; or “no surface occupancy,” which extends to portals and other surface facilities associated with underground mining). Alternatively, avoidance measures can be

used to adjust tract boundaries prior to leasing,

either through application of unsuitability or multiple-use screens, or through an explicit decision

to avoid mining (e.g., deletion of the two sections

of the Dunn Center tract in Fort Union that contain portions of the Knife River Flint Quarry).

Controversy has arisen over the difference between lease stipulations that declare areas unsuitable for mining (whether as a result of the unsuitabiIity/multiple-use screens or other decisions)

and those that permit mining but require mitigation of impacts. When the parties to a leasing decision disagree about the ability to mitigate impacts or the reclamation potential of an area,

environmental and other public interest groups

would prefer to see the area excluded from mining altogether, while operators expect the area

to be carried forward and a final decision made

on avoidance versus mitigation at mine plan review, when extensive data on potential impacts

and alternative mining and reclamation techniques are available.

Summary

Because of the numerous means and opportunities for mitigation, many of the participants

in leasing argue that the coal management program is unduly biased toward environmental protection. Proponents of the “environmental bias”

in the program argue that multiple pre-lease mitigation reviews are necessary as more and more

data become available, because post-leasing decisions are more likely to accommodate mining.

They note that a successful mitigation program

also will allow coal producers and users to make

more timely and secure development plans, and

that the principal emphasis of the leasing program

continues to be to produce an adequate amount

of coal.

DOI responds that it should be responsible for

determining, with reasonable certainty, that a

specific tract can be developed without severe

or permanent harm to the environment and for

determining the stipulations needed to ensure this

protection prior to lease sale, rather than waiting

for this determination to be made at the mining

plan stage. As noted in the 1979 Programmatic

EIS:

Often at the time of issuance or continuance

there is insufficient information about proposed

operations to assure stipulations will cover all

problem areas. Therefore, when an operations

plan is submitted, stipulations are reviewed and

revised or added to make them fit the specific

situation as closely as possible (3).

OTA found that both lease stipulations and permit conditions play a valid role in assuring that

Federal coal is developed in an environmentally

compatible manner. Lease stipulations can be valuable for alerting bidders and the permitting

agency to potential problems on a tract that were

not within the purview of pre-lease analysis

(e.g., potential cumulative hydrologic impacts).

Although such stipulations may only repeat concerns these parties already recognize, they

demonstrate 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 addressed at mine plan review. However, there

seems to be little point in stipulations merely

duplicating requirements of either SMCRA or the

States’ permitting programs.

Stipulations also can be valuable as a form of

conflict resolution. However, care must be taken

to ensure that all interested parties are included

in the negotiations, or, conversely, that no potential bidder who might become obligated to

comply with those stipulations is excluded from

the negotiations. Therefore, negotiated stipulations are most appropriate for noncompetitive

leasing situations.

In OTA’s view, mitigation measures requiring

data collection have a limited usefulness. if sufficient data are available pre-lease to make an informed decision about environmental compatibility, then lease stipulations for data

collection should be unnecessary. On the other

hand, if sufficient data to make a pre-leasing decision are not available, then the schedule could

be delayed or the tract not offered until the data

are collected. if it is not a decision that should

be made pre-lease (e.g., cumulative hydrologic

impacts), then a “red flag” stipulation probably

is more appropriate than one requiring data collection.

When data-related stipulations are considered

necessary, they should be designed to enhance

the decision making capability of the permitting

agency. For example, in one instance, BLM,

OSM, and the State of Montana worked together

to develop a lease stipulation that addressed a

hydrologic problem identified in the pre-leasing

stage. In this case, BLM stipulated that the lessee

include at least 3 years of baseline hydrologic data

in the permit application rather than the 1 year

required by the State’s guidelines.

Similarly, the current policy of using as few permit conditions as possible, by requiring issues to

be resolved in the mine plan before a permit is

issued, probably provides the best basis for environmentally sound decisions. An exception,

mentioned previously, is when monitoring of

mining operations is needed to better understand

potential impacts before permit conditions are tailored to those impacts.

Finally, it should be noted that, while a high

level of detail and specificity may not be appropriate in stipulations related to particular mining

or reclamation methods, clear and specific

language is needed in all types of stipulations and

permit conditions. As found in a previous OTA

report on pre-1979 leases:

Mineral explorers and developers under the

leasing laws face substantial uncertainty as a result of the vague and general wording of almost

all the lease provisions . . . concerning nonmineral resource protection (1 7).

DEFERRAL OF DECISIONMAKING

The insufficient time available for pre-sale planning and environmental analysis (see discussion

of lease rates) has meant that BLM had to continue many activities beyond the time when they

were scheduled to be completed, and thus to defer decisions that depend on those activities or

to impose mitigation measures in lieu of making

decisions. Such deferrals undermine the tiered

structure concept of data collection, planning,

and analysis, which cannot function as intended

under these conditions. This raises the more basic

question, at what stage in the process should environmental compatibility decisions be made,

and at what level of detail.

As described in the section on “Data and Analysis,” the tiered structure for pre-lease planning

and assessment incorporates unsuitability determinations and multiple-use tradeoffs (as well as

estimates of coal development potential and surface owner consultations) during land use planning; site-specific analyses and the publication of

tract profiles, tract ranking and the selection of

leasing alternatives, and preparation of a regional

lease sale EIS for those alternatives, during activity

planning; Secretarial review prior to the leasing

decision; and preparation and review of a mining and reclamation plan. Each of these environmental reviews has a different purpose and focus,
106 . Environmental Protection in the Federal Coal Leasing Program

and the quantity and quality of resource data

generally increases at each stage of review while

the amount of land being evaluated decreases as

the land moves closer to development.

The program regulations governing land use

planning allow the application of the unsuitability

criteria to be carried over to activity planning if

sufficient data are not available to make final unsuitability determinations earlier. “Acceptable

pending further study” was BLM’s unsuitability

decision, for example, for the many of the wildlife

habitat areas identified during land use planning

when additional data were needed to determine

the importance of that habitat. However, significant data material to application of 19 of the 20

criteria* (or the exceptions to them) on a tract

must be available before it can be analyzed in

the final EIS for a lease sale. If such data are not

available for a portion of a tract, but BLM feels

that lease stipulations or permit conditions could

resolve any problems which may result from application 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 justify

leasing decisions (6). However, BLM frequently

did not utilize all existing data sources available

to them (i.e., State reclamation experts, mine plan

data from mining operations adjacent to a tract),

and planning and analysis schedules were often

so tight that they precluded detailed field assessments by multidisciplinary teams of experts. As

a result, BLM made extensive use of the option

of deferring unsuitability determinations to activity planning or beyond.

If sufficient data were not available during land

use planning, final decisions on the multiple-use

and unsuitability screens could not be made.

When land use decisions were deferred to activity

planning, the time originally allotted to that planning became compressed (unless the schedule

for the EIS was allowed to slip, which has not

been the case in recent sales). As a result, less

time was available for site-specific analysis. Furthermore, after tract delineation, data collection

in support of planning tends to become focused

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

on specific tracts rather than on a wider area of

Federal lands, which can preclude development

of a sense of the relative regional value of environmental resources (see section on “Data and

Analysis”).

OTA found that deferral of decisions from land

use planning to activity planning detracts from

the predictability and effectiveness of the tiered

structure concept of data and analysis; in that the

amount of land to be evaluated at the second tier

does not decrease as much as anticipated, and

site-specific analyses have to be performed for

a greater number of tracts than originally included

in the planning schedule. This strained BLM resources and meant the SSAs were not as thorough

as might have been desirable for informed decisions on environmental compatibility. As a result,

there was an increased risk that environmentally

sensitive tracts would be offered for lease. In

many cases, decision deferrals are directly attributable to high leasing rates, which impose tight

planning schedules and pressure BLM to find

more tracts environmentally compatible. OTA

also found that deferral of decisions from BLM

planning and environmental assessment to mine

pIan review increases the probability (i.e., risk)

that tracts with sensitive environmental characteristics will be mined, and promotes the overuse

of lease stipulations.

The extent to which decisions were deferred

varied widely among the regions (see table 13).

in Uinta-Southwestern Utah, the Colorado portion of the North Fork Planning Area was not evaluated for leasing in the Round I lease sale because

BLM considered the existing land use plans to be

inadequate to provide a basis for application of

the unsuitability criteria and other screens (7a).

There was little industry interest to justify updating

the MFP, and BLM felt the socioeconomic impacts of further coal development in the area

would be excessive (6). In the San Juan River Region, however, the MFP was considered adequate until publication of the first draft EIS, was

criticized widely for data inadequacy, especially

on cultural resources. A second draft EIS was prepared for the pending Round I San Juan sale (a

highly unusual occurrence) with a class II cultural

resources survey-a 10 to 25 percent on-theground survey-reportedly completed between
Table 13.—Number of Tracts for Which Decisions on Unsuitability Criteria Were Deferred Past Land Use Planninga

Critical winter Threatened Other Alluvial Special

Region 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

areas

Fort 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 0/0/2

Powder 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 0/0/0

Green 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 0/0/0

Round 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 River

PRLAs (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 0/7/0

Competitive (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,
108 . Environmental Protection in the Federal Coal Leasing Program

the first and second draft EISs to allow application of unsuitability criterion #7 (historic and archaeological sites). Also in San Juan, final application of unsuitability criterion #9 (threatened and

endangered species) has been deferred pending

the completion of field surveys to determine

whether any such species are present. PRLA lease

stipulations in San Juan contain a caveat that archaeological surveys are not complete and that

sites considered unsuitable under criterion #7

may still be found (7).

In general, the more complex the environmental issue (e.g., reclaimability of alluvial valley

floors, impacts on hydrology), the more data and

analyses are required to resolve the issue, and

the more likely that resolution will be deferred

until later in the leasing process, or to the mine

plan stage. Some of the environmental characteristics of potential lease tracts may change over

time (for instance, the active status of eagle nests),

and BLM is reluctant to find lands with such characteristics to be unsuitable for leasing.

The deferral of decisions intended to be made

during land use planning illustrates the manner

in which high lease rates have forced BLM to become “issue driven. ” Given the time and other

constraints on data collection and analysis, planning tends to focus on areas that must be evaluated because of industry interest in leasing, and

tends to be considered adequate if it generates

little controversy rather than meets any standards

or guidelines for adequacy. Although the level

of controversy is one valid measure of the adequacy of data, it should not be the only measure.

Other measures of the adequacy of pre-sale planning and data include the extent to which gaps

in the data base necessitate the use of detailed

lease stipulations or the deferral of decisions

beyond the time at which they are scheduled to

be made.

Although few tracts were included in a final EIS

for the recent lease sales without final unsuitability determinations having been made, documentation of those determinations in the EIS was

not always sufficient to judge whether the supporting data and analyses were adequate (e.g.,

a simple statement that “application of the unsuitability criteria has been completed”). Furthermore, BLM made extensive use of the exemptions/exceptions to the criteria, and of lease

stipulations intended to accommodate data inadequacy. For example, in the Green River-Hams

Fork region, application of criterion #15 (important wildlife habitat) resulted in BLM imposing

lease stipulations that require the lessee to include

in the mining and reclamation plan the proposed

means of managing species habitat requirements

offsite during the mining process (4a). Sometimes,

as with hydrology, the stipulations can be far

more complex and specific (e.g., the Paonia D

Seam tract; see Box D). Lease stipulations can be

nothing more than an alternative means of deferring difficult decisions to the mine plan stage (e.g.,

when the stipulations “flag” areas of concern or

require data collection and analysis). Such mitigation measures would not have to be used so

extensively if more complete data bases were

available (see section on “Mitigation Requirements”).

Deferral of data collection to the activity planning stage does not necessarily mean that a tract

will survive the pre-lease planning process. Some

tracts with significant wildlife habitat, alluvial

valley floors, or other unsuitability conditions

have been “flagged” during land use planning,

and then dropped from further consideration for

leasing (or not included in the preferred alternative) when additional resource information collected prior to the lease sale demonstrated unsuitability (e.g., the Bitter Creek tracts in the

Powder River region and the Mud Creek and

North Trough tracts in Uinta) (10b;) 10c). Other

tracts that survived land use planning were reduced in size as a result of BLM’s considering an

unsuitability criterion after more resource data

became available during activity planning (e.g.,

Renners Cove in Fort Union) (8 b).

Deferral of decision making raises the question

of when during the tiered coal management process is it most appropriate to assess the impacts

of coal mining. No consensus emerges as to the

role of pre-lease environmental analysis. Some

argue that unless a tract contains a “fatal flaw”

that would absolutely preclude mining, BLM

should flag potential problems to signal that additional data need to be collected later in the
Ch. 4—Planning and Environmental Assessment in the Federal Coal Leasing Program ● 109

process–either during activity planning or at

mine plan review. This supports current departmental policy to let the marketplace determine

which tracts are desirable for leasing. Others

argue that if BLM does not have sufficient data

and analysis to make a fully informed decision

about the environmental compatibility of the potential lease tract, then that tract should not be

offered.

The coal industry believes that the current process for environmental review works. They argue

that few potential Iease tracts contain “fatal flaws”

and those that do have been screened out during land use planning by the unsuitability criteria

or the resolution of multiple-use conflicts. The

industry feels that the current process is appropriate because most areas (except for those with

fatal flaws) can be mined and reclaimed in an environmentally compatible manner; it is a question of how much mitigation and reclamation will

cost—a decision which should be up to individual

companies, according to the industry.

Therefore, the industry believes that most final

decisions on environmental compatibility should

be made at the permitting stage, when the most

comprehensive data on environmental resources

and mitigation techniques are available. They

contend that the combination of mining and

reclamation plan review and approval, plus permit conditions, post-permitting inspection and enforcement, and reclamation bonds, is sufficient

to ensure that leases are developed and reclaimed in a manner compatible with environmental laws and regulations.

Critics of the current leasing program recognize

that comprehensive data on environmental values are not available until the permitting stage,

but they believe that, if BLM were to perform its

data gathering and analysis functions adequately

(see discussion of Data and Analysis), then a larger number of tracts—including areas that are considered environmentally sensitive, but may not

have “fatal” flaws–would be screened out during land use and activity planning and the EIS

process than is currently BLM practice. They cite

the Otter Creek tracts in Powder River, and Atlantic Rim in Green River-Hams Fork as examples.

Moreover, critics note that decisions during mine

permit review are more likely to impose mitigation requirements than to close areas to mining, and that mine permit applications historically

have not been denied. They argue that all of these

considerations force them to seek either a political or judicial resolution of disputes with BLM

over the adequacy of pre-sale data and planning.

State government views regarding the appropriate time to make decisions on environmental

compatibility vary. Some States have adopted an

environmental posture and agree that more tracts

(or portions thereof) should be eliminated earlier

in the process. Other States are more development oriented, or want to make such decisions

themselves, and prefer that tracts be carried forward and potential conflicts resolved through

mitigation measures developed by the State at the

mine plan stage. Wyoming officials pointed out

that besides participating on the RCTs, that State

has two other opportunities to screen out problem tracts–when the company applies for an

industrial siting permit and when they apply for

a surface coal mining permit (10b).

The BLM believes that their current implementation of the tiered process is adequate. They note

that data on environmental conflicts necessarily

are incomplete prior to the submission of a mine

plan but that the leasing program (including RCT

activity) ensures that tracts which could not be

mined are not leased. BLM staff pointed out that

their regulatory mandate is to do the best job possible using available data. They acknowledge,

however, that in some instances, pre-lease analysis could be improved so that fewer decisions

are deferred. As a result, BLM places heavy reliance on lease stipulations and the mine plan review process to prevent the mining of any unsuitable areas that make it through the pre-lease

screens.

It is clearly in the best interests of all participants in coal leasing to eliminate tracts that are

not minable as early in the process as possible.

However, issues such as reclaimability, air quality, and many hydrologic concerns, are, in many

instances, simply too complex to resolve prior to

leasing. The comprehensive detail of a mining

and reclamation plan and the specificity of the

baseline studies that accompany that pIan pro-
110 . Environmental Protection in the Federal Coal Leasing Program

vide a better basis for informed decisions on such

concerns. The “red flag” approach to problem

identification at the pre-lease stage sends both

the regulatory agency and industry a signal as to

where some of the permitting difficulties may lie

and hence where more intensive data-collection

efforts will be necessary.

than mine-plan level information. Yet, in the current program many of these decisions are deferred to the mine plan due to lack of time, budg-,

et, and staff to evaluate them adequately prior

to leasing, or as part of overall departmental policy to allow the market to determine which tracts

are desired for leasing.

For most environmental issues, however, even

difficult decisions can be made pre-lease with less

REGIONAL COAL TEAMS

One of the most innovative aspects of the coal

management program established in 1979 was

the creation of the Regional Coal Teams. The

RCTs are BLM/State organizations made up of a

representative of the Governor from each of the

two States in a coal region, the BLM State Director for each State involved, and the chairman,

who is a BLM State Director from a State outside

of the region. Thus BLM maintains a voting majority on each RCT. The RCT can have ex-officio

nonvoting members from other Federal land

management agencies such as the U.S. Forest

Service or Bureau of Indian Affairs, or from other

State agencies if the Governor so requests.

The RCTs play a role in policy formulation for

all aspects of the coal leasing program and provide specific recommendations on leasing decisions to the Secretary of the Interior. The RCTs

consider and suggest policies or practices for regional production goals and lease levels, tract

delineation, and site-specific analysis. Specific

recommendations, based on votes, are to be

made by the RCT on: tract delineation, adequacy

of site-specific analysis, tract ranking, tract selection, Ieasing levels, lease sale schedules, and the

development 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 documented, and alternative recommendations are

to be treated equally in the regional coal lease

sale EIS, which becomes part of the Secretary’s

final decision materials on the lease sale.

The RCT concept allows the States to participate in the leasing program on an ongoing basis

as well as in a setting less formal than the Secretarial consultation with the Governors required

under FCLAA. This ongoing participation is

strengthened by procedures allowing affected

State agencies to participate in site-specific analysis and tract ranking.

The role and the makeup of the RCTs are supported by the Governors of the participating

States. A recently proposed regulatory change

that would have removed recommendations on

the leasing level and the identification of the preferred alternative for the EIS from the purview of

the RCTs was strongly opposed by the States, and

was dropped.

The RCT framework also offers citizens of State

and public interest groups an authoritative forum

for expressing and discussing concerns. In some

instances, the RCT has served as a focus for public

participation. However, the public generally is

more familiar with the NEPA process than with

the RCTs, primarily due to the longer and better

publicized history of NEPA compared to the just

recently initiated Coal Teams. However, if the

RCT process were better understood, its potential for effective public participation may hold

greater promise than that of NEPA alone, because

the RCT’s activities span a greater breadth of the

coal program activities, one of which is the formulation of the alternatives to be analyzed in the

EIS.

On several occasions, interested parties have

proposed expanding membership of the RCT.

Other Federal land management agencies have

sought 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 Comment s

,

High State-high

BLM-medium

Logically part of larger tract. Leasing now

may commit development of the larger

tract.

Underground mine. Logical extension of

two adjacent mines. Could become

bypass tract if not leased.

Small tract, possible set aside. No

particular problems evident.

As delineated, contains 80 acres of sharptail grouse habitat that was determined

“unsuitable” in land use planning.

Unsuitable area has since been deleted

from tract.

Northeast part of tract may become bypass

if not leased.

Cumulative impacts would be severe if

Danforth II were developed concurrently

with Danforth I and Ill, and the Colowyo

mine. Concern with wildlife impact if all

Danforth tracts are developed.

About 30 percent of population resulting

from Danforth tracts would be expected

to go to Meeker. Only tract in Rio

Blanco County to contribute to tax base

there.

Significant wildlife range—more easily

mitigated than Williams Fork Mountain.

High competitive interest.

State ranked as least desirable of Colorado

tracts because of transportation system

concerns. Possibility of population

impacts to MaybeIl. BLM believes

railroad will be extended from the east.

One of the most competitive tracts due

to its isolation from existing operations.

Alluvial valley floor divides tract.

High air quality impacts. (Assessment has

since changed.) Low coal recovery.

Eagle habitat in sections 3, 10, 11.

Relatively low coal yield. No railroad

access. Critical winter range area.

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

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

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

Pinnacle . . . . . . . . . . . . . . . . . . . State-reed/low

BLM-med/high

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

High

High

High

High

Low

State-medium

BLM-high

Medium

State-medium

High High (assumes rail

transportation)

High

High

High

High

State-high

BLM-med/low

High High (assumes rail

transportation)

Dan for Medium

Dan for

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

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

State-medium

BLM-high

High High

BLM-high

State-medium

BLM-high

State-medium

BLM-high

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

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

State-low

BLM-high

State-low

BLM-medium

State-low

BLM-high

State-low

BLM-high BLM-high

Isles Mountain . . . . . . . . . . . . . Medium Low State-medium

BLM-Iow

Low

Low

Medium

High/medium

High/medium

Medium

Williams Fork Mountain . . . . . State-low/reed Medium Low

BLM-medium

Rosebud . . . . . . . . . . . . . . . . . . . High

Medicine Bow . . . . . . . . . . . . . . High

Seminoe II . . . . . . . . . . . . . . . . . High

Red Rim . . . . . . . . . . . . . . . . . . . Medium/high

High

High

High

High/medium

High

High

High

Medium (high if

leased with China

Butte)

China Butte . . . . . . . . . . . . . . . . High Medium High High

alt ~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.
112 . Environmental Protection in the Federal Coal Leasing Program

interests are affected (e.g., the Forest Service

where federally owned coal underlies National

Forest Lands). Similarly, some groups have proposed that affected Indian Tribes be given voting

membership (especially the Navajo in the San

Juan region). Representation by other constituent groups (e.g., industry, environmental organizations, local landowners) also might be considered. Such basic changes in the structure of

the RCTs would be difficult to negotiate. Moreover, it is possible that these interests could be

addressed adequately without voting membership if the role of the RCTs were broadened to

cover the entire leasing process, and Task Groups

(or similar approaches) involving all interests were

used more frequently.

A broadened membership that included representation from all interested parties would likely

result in a group that resembles the Oil Shale

Advisory Panel. While this panel has served as

a useful forum for the discussion of the broad

range of issues involved in oil shale development,

and such discussions have resulted in the focusing of governmental and industry efforts on key

issues, it does not have the directed mandate and

stature accorded the RCTa.

Actions by RCTs

While the general mandate is the same for all

RCTs, there is some flexibility provided so that

approaches and decisions can be tailored to the

specific regions. For instance, with respect to the

ranking of tracts, the RCT can define the three

major factors (coal economics, impacts on the

natural environment, and socioeconomic impacts) in terms appropriate to the region. Further,

these rankings can be adjusted to reflect locally

important considerations such as socioeconomic

impacts.

There is some variation in how the RCTs are

structured. For instance, Colorado has included

representatives from local communities as exofficio members of the RCT. Local concerns with

the socioeconomic impacts of coal development

as well as with other issues thus are presented

first hand. In contrast, Wyoming’s RCT member

conducts field investigations with all potentially

affected communities and then represents their

interests as part of the State’s position.

On the Federal side, coordination with other

land management agencies requires flexibility.

The Forest Service manages large areas of Iand

overlying Federal coal reserves in Utah, and the

synchronization of the two agencies’ (BLM and

the Forest Service) planning schedules might reduce conflicts between surface uses and mining.

Broadening the scope of RCT activities to cover

the entire coal leasing program, especially any

decisions made during land use planning that .

support leasing activities (e.g., application of the

unsuitability criteria), could improve the quality

of those decisions due to greater involvement of

knowledgeable State personnel and reduce the

potential for conflict between the States and BLM.

This could alleviate any controversy that may

arise when the land use planning decisions are

presented to the RCT at activity planning and later

stages. Involving the RCTs in land use planning

also would be consistent with BLM’s objective

of substituting Resource Management Plans

(RMPs) for updated or amended MFPs as the land

use plan. Since many of the State representatives

on the RCTs are from agencies with broad natural resources management responsibilities, broadening the scope of the RCTs should not require

changes in State memberships.

However, expanding the role of RCTs would

involve greater commitments of technical staff

from BLM and State agencies. Providing additional funds to support greater State involvement in

the RCT process would improve its effectiveness

(present Federal funding for State RCT activities

is limited to members’ travel expenses for attendance at meetings). It is envisioned that most of

this support would be for technical staff assistance

to the State representative for analyzing pertinent

issues and preparing adequate documentation for

inclusion in the various coal management program documents. Funding could be provided

‘through direct grants to the States, as part of the

coal management program budget, or in part

through existing grants for related activities, such

as the cooperative agreements for regulation of

coal mining on Federal lands (30 U.S.C. 1295).

RCT Task Groups

Other approaches have included formally organizing Task Forces to evaluate specific issues
Ch. 4—Planning and Environmental Assessment in the Federal Coal Leasing Program ● 113

and report on them to the RCT. The San Juan Regional Coal Team has established task forces on

several issues including the valuation of PRLAs

and BLM/BIA coordination of data collection and

unsuitability determinations on Indian lands. Because much of the coal land to be leased in New

Mexico is within PRLAs, the economic and environmental consequences of processing the PRLAs

could be dramatically different compared to holding competitive lease sales. Although questions

and comments from the public are usually accepted during the task force meetings, notice of

those meetings may not be publicized as widely

as might be desirable for maximum public participation.

Task groups also can be specific to individual

RCT members. For instance, the Utah Mineral

Lease Task Force (MLTF) was created by the Governor of Utah and is composed of representatives

from all the State agencies (and their constituents)

whose programs are affected by or otherwise relate to coal leasing and development. In addition,

representatives from local communities affected

by coal development participate on an ex-officio

basis. Other interest groups that are involved in

the process include other affected Federal agencies, the industry, environmental groups, and lndian tribes. The MLTF reviews all issues involved

with coal leasing and development from Utah’s

perspective, and makes recommendations to the

Governor as to Utah’s position on issues before

the RCT. A broad range of issues and interests

is considered by the MLTF including: evaluation

of the coal resource, mining and reclamation potential, application of unsuitability criteria, and

socioeconomic impacts. The MLTF process also

helps to assure coordination and consistency between Federal lands actions and State and local

land-use plans, a requirement under FLPMA.

The MLTF is the focal point within the State for

developing a consensus on the issues and problems addressed and how the State’s perspective

is to be maintained within the context of the RCT

deliberations. The MLTF activities have been extended to cover the same types of considerations

involved in oil shale and tar sands development

and leasing.

Role of BLM Within the RCT

The BLM State Director has some discretion

with respect to the number of activities assigned

to the RCT for consideration and to the information provided to the RCT. BLM personnel serve

as staff to the RCT, which ensures the RCT has

access to the same information available to the

Secretary and provides more resources than

would be possible if State agencies performed

RCT staff functions. However, the concerns of

State RCT members may be different from those

of Federal members, and concerns have been

raised about RCT/BLM staff not providing support

for positions different from those held by Federal

RCT members. Moreover, serving as RCT staff

does not carry any career incentives, which may

lead to work for the RCT being assigned a low

priority compared to other duties that are considered in merit evaluations.

The RCT as a Forum for

Public Participation

A wide range of approaches has been used to

involve the public in the RCT process. At one end

of the spectrum are the various task groups which

include a broad representation of interests. Actual participation in task groups provides an opportunity for substantive dialog among the parties and a potential to forge a consensus (if not

an understanding) that will allow the leasing process to proceed without challenge. At the other

end of the spectrum are those instances when

public participation was limited to an opportunity

to offer comments at the conclusion of a formal

RCT meeting. Such limited participation generally

is not considered meaningful or substantive and

is more likely to result in frustration with the leasing program.

The RCT process also could be strengthened

by providing greater visibility to the team’s recommendations. This might be achieved by assuring that recommendations are written and include supporting analysis and documentation as

well as the basis for support within the region and

how 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 becoming

should be publicized widely in the affected coal the focus for building consensus on program deciregion and distributed to all individuals and sions would increase the visibility of the RCT

groups that are concerned with the program. Sim- recommendations.

ilarly, more systematic procedures for involving

PUBLIC PARTICIPATION

Public participation is an integral aspect of the

Federal coal leasing program, both in law and

under the present regulatory structure. In the

broadest sense, the term “public” is a collective

one which essentially encompasses all parties that

are not specifically tasked by Federal or State law

with responsibility for pre-lease planning. Thus,

the term includes private surface owners, Indian

Tribes, local governments, coal companies, electric utilities, academicians, environmental groups,

archaeologists, paleontologists, farmers, ranchers,

hunters, recreational participants, business owners, and virtually any other interested group or

individual.

The importance of effective public participation is stressed in the laws–FLPMA and FCLAA–

and regulations that govern the program, as well

as in more general statutory mandates such as

NEPA. Yet a number of criticisms have been

raised about the number and scope of opportunities for the public to address coal leasing related

concerns, the timing of those opportunities, the

relative ability of different segments of “the public” to address their concerns, the quality of

documentation by BLM to enable the public to

evaluate pre-leasing decisionmaking, and the extent to which public participation is considered

by BLM.

public review and comment occurs essentially

in two discrete phases. First, the mandated interagency participation includes both Federal and

State agencies for which the program provides

distinct opportunities for review and comment.

This phase includes comment from agencies such

as the Forest Service and Fish and Wildlife Service, as well as other agencies which do not have

land management responsibilities related directly

to coal leasing. Regulations require that BLM

coordinate, during the development of land use

plans, with other Federal agencies (e.g., Forest

Service), State and local governments, and Indian

Tribes (43 C.F.R. 1601 .4). During the development of regional leasing levels or targets, the advice of Governors of the affected States must be

considered.

After tract selection and ranking, but before

adoption of specific lease sale schedules, consultation with Governors and Indian tribes must take

place again. Under the August 1983 revisions to

the regulations, Interior is required to seek recommendations of the Governors of States affected by lands proposed for lease and to accept

these recommendations if “they provide for a reasonable balance between the National interest

and the State’s interest. ”

The second phase includes all groups and individuals who provide comment and review to

BLM as part of the series of public hearings which

are held specifically to solicit public input. While

public participation and consultation with parties outside of the Federal Government are not

strictly environmental protection provisions,

several Federal laws have included them, in part,

in the belief that such activities are useful in devising environmentally sound coal management

policies. Several opportunities for public participation are contained in land use planning regulations. They require the publication of a planning schedule early in each fiscal year. When a

new RMP or an amendment or revision to a land

use planning document is begun, Federal Register notice to the public is required, and BLM is

required to maintain a list of individuals and

groups known to be interested in land use planning and activities. Fifteen days notice is required

for public participation opportunities and a 90-

day comment period is initiated upon publication of draft EISs. The public is allowed to com-
Ch. 4—Planning and Environmental Assessment in the Federal Coal Leasing Program ● 115

ment on the identification of issues at the beginning of land use planning, and to review

proposed planning criteria, RMPs, and significant

changes made to the plans as the result of a

protest.

The 1979 regulations allowed the public to

comment at two points in the development of

activity planning and the setting of leasing levels,

and required that RCT analyses of production

goals be based, in part, on these comments. A

notice of intent to rank tracts was required in the

Federal Register and public comments on proposed tract rankings had to be considered in regional EISs. Under the 1982 revisions to the regulations, all of these public participation channels

were eliminated with the exception of the comment periods required under NEPA after publication of draft EISs.

Public Understanding of the

Leasing Process

A basic obstacle to effective public participation is that the public generally does not fully understand the entire Federal coal leasing program,

including BLM’s pre-sale planning process. In

general, the basic purposes and goals of the

staged environmental review process are illunderstood by those not actually participating in

it on a regular basis. The terms “land use planning, ” “multiple-use tradeoffs,” “unsuitability

criteria,” “activity plan ning,” and others are confusing, and by their very nature intimidating to

people who are not already familiar with the general concepts. One major element of the coal

management program not understood by many

people is that the leasing of a tract by BLM is not

the last opportunity to evaluate potential effects

that may result from coal development. Many are

unaware of surface mining permit applications

and the level of detail with which mining and

reclamation plans address environmental

impacts.

The public’s desire to understand and participate in the Federal leasing process is hindered

by the fact that many States, which address major issues, do not necessarily provide mechanisms

for the public to participate in all programs, such

as water rights. As a result, the interested public

tends to a certain extent to concentrate on the

opportunities in the Federal programs that are

available for them to address their concerns. As

a consequence, some of the information provided by the public may not be directly relevant

to BLM’s jurisdiction. In some instances this results in the appearance that BLM has failed to

consider public comments in making leasing decisions; in others, public persistence has resulted

in BLM’s “jurisdiction” being expanded (e.g., water rights issues in Uinta). This, too, is partially

explained by the public’s general lack of understanding about the planning process. Workshops

at the outset of each of the planning stages could

provide the public with a mechanism to be educated about the leasing process. Brochures that

describe the basic steps, goals and products of

the leasing process, and the means of public participation at each step also would improve public

understanding. Periodic newsletters to inform the

public of upcoming activities and past decisions

would provide further explanation. All three of

these mechanisms—informational brochures, a

newsletter, and informational meetings—were

used in Fort Union Round I (3a).

Public input is more effective for all concerned

when it occurs as early in the process as possible. BLM sometimes receives insufficient public

input early on, particularly for cases in which the

public gets very involved in the later stages of the

decisionmaking process. In some instances, public hearings go virtually unattended. Again, this

is due in part to the poor understanding that the

public has of the leasing process. The importance

of addressing concerns as early as possible is

generally not widely appreciated among the public. However, even early effective participation

can be undermined by lack of continuity among

BLM personnel.

Others argue that the permitting stage has ample opportunity for public concerns to be addressed in detail. In response, public interest

groups claim that when the land is already leased,

it is much harder to have decisions altered. In

addition, participation in the process at the mine

plan review stage is felt to be more difficult than

in pre-leasing stages.

BLM’s documentation on some of its procedures has been incomplete—another hindrance
116 . Environmental Protection in the Federal Coal Leasing Program

to the public’s participation in the process. Unless

the public can track specifically how a resource

use decision was made or an unsuitability criterion applied, the ability to participate actively

in the process is diminished, and interested parties are unable to determine whether BLM has

satisfied legal and regulatory requirements. Revisions to the coal leasing program since 1982

changed the requirements for written documentation of application of screens in land use (or

activity) planning. Without the more complete

documentation required by the earlier regulations, public involvement in, and understanding

and evaluation of, BLM’s decision making processes has been impeded.

Existing documentation also has been criticized

as being too technical in the way it treats some

issues, yet, at the same time, being too general

and vague in not explaining the procedures that

were followed. Compounding this is the undue

length of some documents. Inconsistencies also

are a problem for outside reviewers. Even within

regions, the extent to which procedures are documented varies, and information in one document may not be consistent with others.

The availability of planning and leasing documents also presents problems. In some instances,

documents such as MFPs are not published, or

public copies are not always at easily accessible

locations. Consequently, some interested parties

have been precluded from reviewing all of the

available documentation relevant to the pre-leasing process. In other cases, the public must pay

to have documents copied, or file Freedom of information requests in order to obtain copies.

Assessment of impacts is issue driven in that

unless potentially affected members of the public

are tenacious, even through the stages of developing lease stipulations and other mitigation

measures, there is virtually no way to assure that

their concerns will be identified or addressed during pre-lease planning. For example, some contend that Unsuitability Criterion #l7 (municipal

watersheds) is only applied if potentially affected

municipalities raise concerns. Differences in tract

rankings made in Uinta Round 1, as opposed to

Round 11, concerning leasing in the watershed of

Scofield Reservoir illustrate the effect that can result from the involvement of local government

entities. in this instance, tracts in close proximity to a municipal reservoir were dropped from

the preferred alternative in Round Il. However,

this was only done after municipalities voiced

concerns when tracts in even closer proximity to

the reservoir were leased in Round I (10c).

The period available for public review of documents on which opportunities for participation

are afforded may be significantly shorter than the

15-day notice period due to the time needed to

obtain documents. As a result, the review period

is often perceived as being too brief, which makes

it difficult for reviewers, who usually have other

commitments to their time, to provide comments.

In some instances, residents of affected areas do

not speak English. For example, in the San Juan

River region, a significant number of the residents

speak only Navajo. In that area, a Navajo-speaking BLM employee traveled to Chapter Houses

to describe the leasing process to the residents,

and all testimony at public hearings was translated directly for Navajo attendees (6). Yet, even

for those who attend these meetings, cultural differences may inhibit understanding of the process and its effects on local residents. The quality

of public input suffers as a consequence of these

and other factors.

When given adequate opportunity, the public

has many times provided information to BLM that

has been useful to the planning process. Similarly,

pressure from the public has led in some cases

to BLM’s undertaking special studies on issues of

critical concern to the public, including air quality

in the Fort Union region, hydrology in Green River-Hams Fork and Uinta-Southwestern Utah, and

cultural resources in the San Juan region. These

special studies generally have been acknowledged by BLM as improving the quality of information upon which environmental judgments are

made.

An example of the importance of public involvement in BLM’s baseline environmental data

collection occurred in the powder River region.

A member of the public with the necessary

knowledge and expertise identified one of the

tracts proposed for leasing in Round II as having

present within its boundaries a nesting area of
Ch. 4—P/arming and Environmental Assessment in the Federal Coal Leasing Program ● 117

a species of high interest to the State (Unsuitability

Criterion #1 5). Provision of this information to

BLM resulted in the designation of an area unsuitable for mining around the nesting area.

Conversely, material provided by the public to

BLM has sometimes been ignored during decisionmaking. For example, industry and State governments provided information indicating the

proposed regional leasing levels were too high

in San Juan, Fort Union, and Uinta-southwestern

Utah. Only in San Juan, where the Regional Coal

Team concurred, were they adjusted downward.

One category of public involvement that is in

a large sense a special case is the degree to which

potential lessees participate in the collection and

sharing of coal resource and baseline environmental inventory data, and obtaining surface

owner consent to data collection/research as well

as mining. A decision by a particular coal company not to share information with BLM makes

it possible for that company to delay a tract’s being offered for lease (see discussion of “Data and

Analysis”).

ENVIRONMENTAL ISSUES OF INDIAN TRIBES

In its efforts to involve a wide range of parties

in its study on the environmental compatibility

of the Federal leasing program, OTA included the

issues and concerns of Indian tribes whose reservations are located near Federal coal tracts. Tribal

environmental issues and concerns pertain both

to the programmatic aspects of the leasing program and to specific, substantive impacts that

would likely result from actual development of

the tracts. I those instances where tribal concerns are primarily socioeconomic, these are

noted.

To assist in understanding more fully the nature

of tribal issues, this section first describes both

the geographical and administrative context of

the tribes as they relate to Federal coal leasing,

and then outlines both in a general and tribe-specific manner the environmental issues and impacts that will or might be expected to result from

the leasing program. The potentially affected

tribes are shown in figure 18.

In addition to geographic proximity to Federal

coal lease tracts, Indian tribes are included in

both the FCLAA and FLPMA regulations as government entities that are to be consulted throughout the course of Federal planning for both overall land use and particular activities (coal leasing).

Specifically, these regulations require BLM to

consult with Indian tribal governments during the

development of land use plans and, during the

activity planning stage, after tract selection and

ranking but before adoption of specific lease sale

schedules. Apart from these regulatory provisions, the Federal Government—and the Department of the Interior in particular-bears a general

trust responsibility to Indian tribes.

In order to: 1) identify generic tribal environmental concerns with BLM’s administration of the

Federal coal leasing program, and 2) present as

accurately as possible tribe-specific concerns

about environmental issues and/or impacts, each

of the potentially affected tribes was contacted

through telephone interviews and/or personally

at a Council of Energy Resource Tribes (CERT)

meeting in Denver, and the following questions

were posed:

●

●

●

If Federal coal lease tracts have been sold

or proposed for sale near your reservation,

was your tribe adequately consulted during

the various stages of the leasing process,

especially concerning the environmental

consequences of the proposed lease development?

If a Federal coal lease tract is developed (now

or in the future) near your reservation, what

would you consider to be the principal environmental issues and/or impacts?

As presently constituted, is the Federal coal

leasing program adequate to ensure environmental protection for your tribe through the

various stages of the leasing process? If not,

what changes should be made and during

what stage, comprehensive land use planning or activity planning?

34-756 0 - 9 - Q L3
118 ● Environmental Protection in the Federal Coal Leasing Program

Figure 18.—Sketch Map Showing Approximate Locations of Idian Reseverations

Relative to Coal Leasing Regions

hern Ute I

Carilla Apache ~

The information in this section is drawn primar- concerning their responses to the first and third

ily 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 consultaand Impacts tion has been inconsistent and inadequate during land use planning, and has tended more toAlthough Indian tribes vary greatly because of ward “notification” than “consultation” during

political, cultural, and geographical differences, activity planning. Similarly, the tribes do not think

certain general conclusions still can be reached they have been provided with adequate informa-
Ch. 4—Planning and Environmental Assessment in the Federal Coal Leasing Program ● 119

tion to support effective participation in decisions

or recommendations on leasing levels or lease

sales.

Another aspect of the consultation process is

BLM’s coordination through and use of the Bureau of Indian Affairs (B IA, a sister agency of BLM

within DOI) to interact with the tribes. Discussions with BIA officials at the Denver regional office and at local agency offices, and the responses

from the Tribes, indicate that BLM probably has

not taken full advantage of this interagency relationship, either as a means of obtaining data

needed to analyze potential impacts adequately

or as a way to assist the tribes in evaluating coal

lease tract decisions.

Second, all respondents agreed with OTA’s

finding that the Federal coal leasing program, as

expressed in the legislation and general regulatory

framework, is adequate to ensure environmental

protection, but that to be effective the program

must be implemented as originally intended. To

accomplish this, Indian tribes—as other interest

groups–must be able to participate effectively

at key decision points.

In this context, a related issue pertains to the

Regional Coal Teams (RCTs) and the participatory

level to date by Indian tribes. Some tribes, including the Navajo and Northern Cheyenne,

have been ex officio members on their respective RCTs, while others have had representation

on a BLM District Advisory Council. The Navajo

Tribe recently was recommended by the Governor of New Mexico to be a voting member of the

San Juan River RCT. A tribe’s involvement with

the Federal coal leasing program will and should

vary greatly depending on proximity to potential

lease tracts and to subsequent impacts caused by

expected development. Accordingly, it may be

useful to distinguish a tribe’s role on the RCT by

the same basis—tract proximity to a reservation

and magnitude of probable environmental and

socioeconomic impacts.

A final general concern of all tribes is the disparity between the tribes and State and offreservation local governments in the availability

of funds to mitigate the adverse impacts of coal

development. Tribes generally do not receive a

share of Federal bonuses, rentals or royalties; cannot collect severance, gross proceeds, or any

other taxes from mines not located on reservation lands; and have virtually no independent tax

base of their own on which to draw.

Tribe-Specific Environmental

Issues/Impacts

The following summaries present the key concerns of potentially affected tribes as expressed

to OTA; independent evaluation of these concerns was beyond the scope of this report. The

environmental and other impacts listed reflect

each tribe’s own priorities, unless otherwise indicated.

Fort Union Coal Region

THREE AFFILIATED TRIBES

(FORT BERTHOLD RESERVATION)

Federal coal lease sales have been held recently

in areas near Fort Berthold, the most recent being the September 1983 Fort Union sale.

Consultation: The tribes were directly consulted by BLM concerning both the environmental consequences of leasing and the subsequent

lease development.

Environmental Issues/Impacts:

1. Air Quality. Concerns include increases in

TSP, S02

, NOx, and visibility reduction. An indirect economic impact may result from the reservation’s location near Theodore Roosevelt National park, which has a Class I air quality

designation; as nearby Federal coal lease tracts

are developed, air quality increments could be

used up and the likelihood that tribal coal can

be developed in an environmentally compatible

manner would be reduced.

2. Water Rights (water quantity or supply). Not

only is coal development often water intensive,

but the State manages the water use permitting

process.

FORT PECK ASSINIBOINE AND SIOUX TRIBES

Fort Peck Reservation is located approximately

30 to 50 miles north of proposed Federal coal

lease tracts in the Montana portion of Fort Union.
Consultation: The tribes do not feel they were

consulted adequately prior to the draft EIS; the

draft EIS in July 1982 was perceived by the Tribes

as their first formal notification, and they were

consulted again in March 1983 regarding the proposed leasing decisions on tracts to be offered

later that summer. Most importantly, the tribes

commented that not enough information was

provided to allow them to estimate the environmental effects of the proposed leasing alternatives, and that which was disclosed warranted

only minimal additional coal leasing.

Environmental Issues/Impacts:

1. Air Quality. Air pollution from lease development could degrade reservation air quality, in

some instances exceeding the Class 1 increments

(Fort peck Reservation has been designated a

Class 1 air region under the Clean Air Act).

2. Wildlife. Migratory wildlife on the reservation may suffer as a result of habitat degradation

south of the reservation.

3. Socioeconomic. The large influx of workers

would strain available resources, at the expense

of tribal and other local residents.

Powder River Coal Region

NORTHERN CHEYENNE TRIBE

In the view of the tribe, location of the reservation in the virtual center of the Powder River

coal tracts, as well as the magnitude of surrounding coal mines/conversion facilities (existing and

proposed), has and will likely continue to create

significant adverse environmental and socioeconomic impacts. This situation, and the specific

factors listed below, place the tribe in a nearly

unique situation vis-a-vis the Federal coal leasing

●

●

●

program.

major north-south and east-west highway

corridors (for both commuter and service

traffic to/from mining and conversion facilities) bisect the reservation;

rail lines for coal transport are proposed

along Tongue River on eastern reservation

boundary;

reservation designated as Class 1 Air Quality

Region in 1975, prior to current Federal coal

leasing program;

the tribe has its own significant coal resources, but has chosen to delay development because of lack of tribal control over

development; and

finally, unlike some reservations, Northern

Cheyenne’s is indeed “home” to its members (85 percent of on-reservation population is Northern Cheyenne, and 99 percent

of surface used by tribal members).

Accordingly, the tribe contends that the impacts from the increased population associated

with intensive coal development will continue to

add significant environmental and socioeconomic impacts on already stressed tribal public facilities, services, and environs. The Northern Cheyenne do not feel that, historically, they have had

an equal opportunity to participate in off-reservation workforce and commercial ventures, nor

does the tribe share the substantial and other tax

revenues that will be available to State and local

governments to mitigate impacts of coal development.

Consultation: The Northern Cheyennes are not

categorically opposed to Federal coal development surrounding their reservation. Rather, the

tribe’s principal concern is that, as required by

law, the development be undertaken with a sensitivity to the social, economic, and environmental impacts on all local communities, including the Northern Cheyenne. As presently

formulated, Federal coal leasing portends uniformly negative consequences for the Northern

Cheyenne Tribe in their view. Further, the tribe

has found BLM’s consultation effort, its analysis

of impacts during activity planning, and its consideration of mitigation measures (e.g., lease

stipulations) to be inadequate. A prime example

cited by the tribe is the EIS prepared for the 1982

Powder River sale, which gave little or no recognition to the combined environmental/socioeconomic impacts noted in this section. When

BLM refused to consider any modifications in the

1982 sale, despite a substantial tribal effort to

demonstrate the defects in its formulation, the

tribe filed Northern Cheyenne v. Watt, which is

currently pending (16).

Additionally, although an ex-officio member of

the Powder River RCT, the tribe noted that it has

limited resources to participate meaningfully and
Ch. 4—Planning and Environmental Assessment in the Federal Coal Leasing Program • 121

perform adequate analyses of lease sale proposals. For the Powder River Round 2 sale, the tribe

has increased its own participation substantially,

including the formulation of lease stipulations to

mitigate adverse impacts and ensure that the tribe

benefits from the positive effects of the surrounding coal development. Finally, the tribe contends

that BLM-BIA coordination has been largely a token relationship, not taking full advantage of the

BIA’s trust relationship with the tribe.

Environmental Issues/Impacts:*

1. Socioeconomic. Because of the tribe’s particularly vulnerable economic situation and proximity of the reservation to the lease tracts, socioeconomic impacts are the most serious concern

of the tribe; public services/facilities most likely

to be heavily affected are roads, recreation facilities, traffic control, law and order, health care,

and housing. At the same time, absent special

measures, the Northern Cheyennes will not share

in the substantial revenues available to off-reservation governments to mitigate adverse impacts

(e.g., royalties, severance taxes), and may not

have an opportunity to participate in the economic benefits of surrounding development. For example, absent a binding obligation to employ

Northern Cheyennes (e.g., via lease stipulations),

off-reservation coal operators have not made a

special effort to do so. At Colstrip, 10 miles north

of the reservation, Montana Power Co. ’s generating plants are subject to a binding employment

preference which has gained a significant number of jobs for tribal members. But at the adjacent Colstrip mine, where there is no such preference, the Northern Cheyenne feel they have

been given only minimal consideration in the filling of over 500 jobs.

2. Air Quality. Given the reservation’s Class 1

designation, the tribe is concerned with fugitive

dust from mining activities and other impacts

from conversion facilities; it also considers the

current BLM air quality analysis for the Powder

River Round II sale to be inadequate, not accounting for cumulative air quality impacts in establishing the EIS baseline. Finally, the tribe is

*Not prioritized by the tribe.

concerned that air quality increments in the region are being usurped from the tribe’s own use.

3. Water Quality. Aquifer interception and contamination from mining activities could affect

tribal water supply (largely wells). Surface water

pollution of the Tongue River is another concern.

4. Wildlife. Migration routes of wildlife moving onto reservation are being disrupted, affecting tribal residents’ food supply (60 percent of

the tribe supplements their food from this source).

5. Historic and Burial Sites. Many are located

off-reservation, and could be disrupted or destroyed.

CROW TRIBE

Both the northeastern and southeastern boundaries of the Crow Reservation are located near

Federal coal lease tracts (Colstrip, Spring Creek,

and North/West Decker) and existing coal mines

and conversion facilities. In addition, an active

coal mine is located in a ceded area at the northeastern border of the Reservation, and another

mine in the southeastern portion of the Reservation, Youngs Creek, is slated to begin operation

in 1986.

Consultation: The tribe has expressed concerns on two counts with respect to BLM consultation: 1 ) lack of tribal involvement in the development of the land use plans and specific lease

sale schedules, and 2) failure to factor the tribe’s

coal reserves into the regional baseline and

follow-on analyses for both environmental and

socioeconomic impacts on the tribe. Also, the

tribe noted a virtual lack of any mention and/or

analysis of environmental impacts on the Crow

Reservation in the powder River Round I lease

sale EIS.

Environmental Issues/Impacts:

1. Air Quality. Pollution could be significant,

especially if second- and third-level mining development scenarios (large-scale strip mining of

coal and related conversion facilities—powerplants and synthetic fuels) occur in the region.

2. Water Quality/Quantity. The major concern

is pollution of tributary streams on or adjacent

to the reservation.
122 . Environmental Protection in the Federal Coal Leasing Program

3. Socioeconomic. A mass influx of workers/

families from intensive regional coal development

would result in an overall degradation of quality

of life and place additional stress on already

strained public facilities/services and infrastructure.

Green River-Hams Fork Region

THE WIND RIVER TRIBES

(SHOSHONE AND ARAPAHOE)

Currently not involved and/or near any Federal coal lease tracts; they may also more properly

be placed in Powder River Region, but their status

or level of involvement would not change.

Uinta-Southwestern Utah Coal Region

UTE INDIAN TRIBE

(UINTAH AND OURAY RESERVATION)

The southern boundary of the Uintah and

Ouray Reservation is approximately 25 miles

north of the northernmost Federal coal lease

tracts in this region. These are underground mine

tracts with limited development, and are separated from the reservation by a major canyon.

Although it is not clear that the tribe would sustain any serious environmental impacts from development of these tracts (because of the topographic and other physiographic characteristics),

the tribe nonetheless felt it should have been consulted.

Consultation: The tribe was never contacted

during the leasing process. According to BLM, this

was because the nearest tracts are limited development, and because wildlife mitigation routes,

hydrologic drainage, job availability, etc.,

historically have not crossed the canyon in

between.

Environmental Issues/Impacts: Air quality, water quality/quantity, wildlife, and socioeconomic

impacts were listed as the tribe’s priorities.

San Juan River Coal Region*

As noted elsewhere in this report, a myriad of

circumstances and Federal Iand management decisions have affected the environmental compat-

*Note: In the San Juan region, only the Navajo Tribe and the

Pueblos of Laguna and Acoma responded to OTA’s questionnaire.

ibility of coal leasing in the San Juan region, not

the least of which concern Indian tribes. For example, the Navajo-Hopi relocation effort, the litigation by Navajo allottees regarding surface owner consent and coal ownership, tribal cultural

concerns, and PRLA disposition have had a direct bearing on the current status of the San Juan

leasing program and corresponding environmental impact assessments.

Moreover, as with tribes elsewhere, environmental impacts and socioeconomic disruption

will heavily affect the San Juan Region tribes if

the leasing program is not more sensitive to tribal

concerns. Even though economic considerations

of coal leasing and development are a mixed

blessing: some tribal members will feel new jobs

are a benefit; others will feel that the costs of

relocation, destruction of sacred sites, loss of grazing lands, adverse air and water quality impacts,

and loss of ambience (solitude, intrusion by outsiders, etc. ) will outweigh any economic return.

These and other particular environmental concerns of individual tribes in the San Juan Basin

are presented below.

PUEBLO OF LACUNA

Competitive Federal coal lease tracts (Chico

Wash South, Lee Ranch East-Middle-West) are

located approximately 25 to 30 miles northwest

of the Reservation.

Consultation: The Pueblo does not feel it was

consulted adequately in the initial phases. The

Pueblo noted another concern–that they be kept

informed of any agreements related to Federal

coal leasing that are executed among the various

Federal agencies— BLM, BIA, BOM, et al.

Environmental Issues/Impacts:

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 Juan

coal leasing program in a number of ways:

● proximity to several competitive coal lease

tracts;
Ch. 4—Planning and Environmental Assessment in the Federal Coal Leasing Program ● 123

● the large quantities of coal underlying tribal

lands;

● the Navajo-Hopi relocation effort, which also

encompasses 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 members where some of the leasing activities will

occur.

These and other issues point up the integral role

that the Navajo Tribe should play in the implementation of the Federal coal leasing program in

the San Juan Basin. Many of the areas to be leased

are occupied and used by tribal members, and

they have several legal claims pending to much

of the coal and surface involved.

Consultation: Tribal concerns here center

around: 1) inadequate consultation during land

use planning, and more importantly, 2) the lack

of time and relevant information during activity

planning to participate effectively on issues confronting the tribe. Regarding the latter, the most

recent example pertains to the perceived inadequacy of the public hearing process–timing and

Iocation(s)–for the second San Juan draft EIS

(BLM held the hearing in Farmington, N. Mex.,

the closest town to the Navajo residents that

would be affected most by leasing). The tribe told

BLM that the proposed hearing process would

most certainly preclude Navajo concerns from

being heard and addressed. Finally, regarding

participation in the San Juan RCT, the Navajo

Tribe currently is an ex officio member, and

recently was recommended by the Governor of

New Mexico to be a full, voting member in recognition of the tribe’s unique role and situation

in the Basin. However, the Director of the BLM

has rejected this recommendation.

Environmental Issues/Impacts*:

1. Socioeconomic. These impacts are of utmost

concern to the tribe: the relocation plan for Navajo families affected by PRLAs is inadequate

and/or unacceptable in terms of compensation,

cultural implications, replacement of grazing

*Not prioritized by the tribe.

lands, destruction of sacred sites, overall ambience, and relocation of graves; the economic

benefits of added coal development probably will

not accrue to the Navajo people; and the impacts

from an influx of people will result in housing

shortages, increases in crime and alcoholism, and

a deterioration in law and order. All of these in

turn will adversely affect the Navajo lifestyle.

2. Reclamation and Revegetation. The tribe

finds the second draft EIS still inadequate on this

issue; loss of grazing land from proposed mining activities is not estimated, nor do they feel

the issues surrounding reclaimability were addressed adequately, such as a specific, comprehensive reclamation plan, treatment of toxic material, top soil preservation, and irrigation needs.

3. Water Quality and Quantity. Tribal concerns

center around the availability of the estimated

52,000 acre-feet annual water requirement for the

proposed mining and related conversion facilities on lease tracts (notwithstanding the current

scarcity for existing domestic, irrigation, and livestock demands), and the possibility of a new town

in the region. Other water quality impacts include

groundwater interception and/or the recharge

levels of aquifers currently supplying water to

many tribal lands. Finally, the tribe is concerned

that water quality may be impaired because of

the increased coal development activities nearby.

4. Cultural, Archaeological, and Paleontologica/ Resources. The Navajo Nation strongly believes that comprehensive inventories of these resources must be undertaken before decisions are

made to implement the leasing plan. Otherwise,

Navajo graves and sacred sites, and the rich diversity of significant archaeological and paleontological resources in the region will be irretrievably lost, not only to the tribe but also to society

in general. The tribe points out further that the

second draft EIS does not address relocation/restoration of sacred areas and gravesites, and contends that it does not include adequate salvage,

recovery, and preservation plans for the archaeological and paleontological resources.

5. Air Quality. The tribe feels that several aspects of adverse impacts on regional air quality—fugitive dust, smog, sulphur dioxide, nitrogen

oxides, etc.— have not been adequately analyzed
124 ● Environmental Protection in the Federal Coal Leasing Program

in the leasing process. Moreover, in the second

draft EIS, cumulative air quality impacts have not

been properly considered, whether from existing

mining activities, existing and proposed railroads,

oil and gas fields, or other powerplants/projects

in the basin. Finally, specific mitigation measures

for air pollution are not fully addressed in the draft

EIS or other leasing documents, according to the

Navajos.

6. Noise and Vibration. The tribe does not think

that adverse impacts on people, livestock, and

wildlife from both noise and vibration, as well as

damage to fragile archaeological/paleontological

resources from blasting, have been quantified

 adequately. Furthermore, in their view, mitigation

measures, such as lease stipulations, have not

been developed satisfactorily to either eliminate

or minimize these problems.

7. Fish and Wildlife. According to the tribe, the

information provided to date in draft EISs and

other BLM documents does not adequately describe the baseline, especially threatened and/or

endangered species that could be affected by the

8. Visual. The visual quality of the region could

be degraded by increased urbanization in existing

communities, mining operations and surface conversion facilities, improved or extended access

roads, and various rights-of-way. The tribe’s key

concerns include the scenic quality of the landscape and possible destruction of some unique

geological formations and wilderness areas.

PUEBLO OF ACOMA

Several competitive Federal coal Iease tracts—

including Lee Ranch East, Middle, West and

Divide–are located approximately 30 to 50 miles

north of the Acoma Pueblo.

Consultation: The Pueblo has indicated that

they were not consulted about the leasing process. (According to BLM, this is due to the Pueblo’s

distance from potential lease areas and intervening topographic features.)

Environmental Issues/Impacts: Water availability is the chief concern of the Pueblo; another

is the need for an adequate reclamation program.

proposed leasing actions.

mitigation measures also

The tribe suggests- that

should be included.

LEASING ON SPLIT ESTATE AND CHECKERBOARD LANDS

Under the original homestead laws, ranchers

and farmers were granted both the surface and

mineral rights to their lands. After significant

homesteading had occurred in North Dakota and

Montana, laws were changed around the turn of

the century to allow the Federal Government to

retain the mineral estate, and subsequent homesteaders only acquired the surface estate, which

resulted in what is known as “split estate” ownership (see fig. 19).

situations. Checkerboard ownership is most prevalent in the Fort Union Coal Region, the northern portion of the Powder River region, and the

Wyoming portion of Green River-Hams Fork.

Split estate lands also exist in the San Juan River

region, in which a significant fraction of the Federal coal underlies Indian surface. Surface owners

include individual tribal members, BIA, or the

Navajo Nation. Finally, as noted earlier in this

chapter, conflicts over land use planning, impact

Similarly, the original railroad land grants in significance, and leasing decisions have arisen

these areas led to a “checkerboard” pattern of where Federal coal underlies lands managed by

the 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 railroad 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 coal

ownership pattern only exists subsurface, and that regions is illustrated by the fact that there are 9.7

pattern and split estates may both affect leasing million acres of recoverable Federal coal reserves
Ch. 4—Planning and Environmental Assessment in the Federal Coal Leasing Program . 125

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 I

0 1 2 3 4 SMILE S

SOURCE: Bureau of Land Management, Powder River coal tract summaries (April 1983).

34-756 0 - 10 - QL3
126 . Environmental Protection in the Federal Coal Leasing Program

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
Ch. 4—Planning and Environmental Assessment in the Federal Coal Leasing Program ● 127

in the six principal Western coal States, of which

6 million acres underlie private surface. However,

the geographic distribution of split estates varies

widely. At one end of the spectrum, in the North

Dakota portion of the Fort Union Coal Region,

virtually all (99.5 percent) of the federally owned

coal is overlain by non-Federal surface, while in

the Montana portion, over 90 percent of the Federal coal is beneath non-Federal surface (8 b). At

the other end of the spectrum, the Uinta-Southwestern Utah, much less (20 percent) of the federally owned coal underlies non-Federal surface

(see table 15).

These ownership patterns can affect the development potential of both Federal and non-Federal coal resources. For example, due to the need

to form logical mining units and avoid bypass

situations, BLM estimates that 42 percent of the

total coal reserves in Fort Union could not be developed without the leasing of Federal coal because of the combination of checkerboard ownership and split estate (8 b). The proportion of total

resources dependent on the leasing of Federal

coal in Powder River and Green River-Hams Fork

is 16 and 27 percent respectively (2; 4a; 4b).

A major concern with planning and environmental assessment in the coal leasing program

is the difficulty in implementing the program in

areas of predominant split estate and/or checkerboard ownership, compared to those areas with

significant Federal surface ownership. The statutes and regulations defining the program provide limited guidance for implementation in geographic areas sensitive to the type and extent of

Federal ownership. An abbreviated planning

process, called the land use analysis, is suggested

for split estate leasing, but in practice land use

analyses are indistinguishable from updated or

amended MFPs. These and other uncertainties

about how to implement the program on split estate lands results in a lack of definition as to the

authority carried by land use plans, lease stipulations and other mitigation requirements, and enforcement of the mining and reclamation plan on

those lands.

Split estate lands pose substantial land management problems for BLM, yet resolving these problems ranks low in the competition for agency

funds and manpower compared to surface ownership management responsibilities. Data collection on private surface typically is not pursued

aggressively by BLM. In some instances, data

have been withheld by surface owners (or BLM

has been denied access to the surface to collect

data), either to facilitate leasing by avoiding the

discovery of problems, or to force a tract to be

dropped from the lease process due to lack of

data. In other cases, leasing on split estate lands

has been foreclosed because insufficient time was

available during pre-lease planning to obtain the

numerous surface owner consents needed in

these areas.

On the other hand, data collection and analysis have been more extensive where the Secretary

has a continuing responsibility with respect to the

private surface estate. This is the case with Indian

lands (lands held in trust) outside the boundaries

of the reservations (e.g., the BLM/BIA interagency

agreement concerning lands in the San Juan

region).

Data collection actually can be facilitated on

checkerboard lands. If the railroad company has

undertaken inventories on its land, those data will

help BLM narrow the issues and focus their land

use planning. However, if the company data are

not shared with BLM, the same planning problems can arise with checkerboard lands as with

split estate (see discussion of Burns Creek tract

in section on “Data and Analysis”).

There is substantial concern within BLM regarding land use planning on private surface when

the only Federal interest is the mineral estate, or

when the Federal surface is intermingled with private surface. The concern focuses in part on

whether or not the authority exists for BLM to enforce mitigation measures on private surface

lands, not only during mining and reclamation,

but also after reclamation in terms of being

assured that the approved post-mining land use

will be maintained following release of the reclamation bond. if it is found that such authority

does not exist, the flexibility to choose between

mitigating impacts versus declaring areas unsuitable for mining is constrained substantially.

Post-mining land uses on split estate lands are

of 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/ Percent

Region Federal coalb

of total non-Federal coalb of total Federal coal of total non-Federal coal of total Federal coal of total

Fort Union: 31,680 1.0% 2,260 — 2,890 0 14,320

North Dakota . . . . . . . . . . . . . . . . .

—

800 –d

— —

o — 2,890 0 3,640

Montana . . . . . . . . . . . . . . . . . . . . .

—

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 6,012

Wyoming ..................,. 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 0

Utah . . . . . . . . . . . . . . . . . . . . . . . . 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 coal

Region non-Federal coal of total Federal coal of total non-Federal coal of total Federal coalc of total non-Federal coal of total resource

Fort 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 . . . . . . . . .

111,080

44,600

66,480

473,099

107,980

365,119

102,764

57,134

45,630

74,590

8,190

66,400

3.0%

1.8%

5.4%

1,205,740

711,160

494,580

32.2%

28.3%

40.0%

2,263,470

1,643,250

620,220

720,166

443,560

276,606

60.4%

65.4%

50.1 %

11 .6%

23.6%

6.9%

38.3%

42.0%

22.7%

91,580

79,860

11,720

70,837

2,470

68,367

29,648

17,883

11,765

2.4%

3.2%

1 .0%

1 .2%

27,450

26,170

1,280

32,203

2,960

29,243

160

40

120

400

0

400

 1.0%

1 .0%

—

3,750,470

2,512,370

1,238,100

7.7%

5.8%

9.2%

3.8%

2.6%

8.9%

4.4%

1 .5%

6.0%

6.4%

8.1%

6.2%

3,814,722

1,046,895

2,767,827

61 .7%

55.8%

69.5%

6,185,532

1,877,651

3,985,338

—

—

—

—

1 .7%

1 .1%

1 .0%

2.3%

1 .0%

1 .0%

1 .0%

330,575

56,235

274,340

285,410

180,070

105,340

273,570

68,950

12.3%

2.6%

53.3%

1,029,655

912,860

116,795

2,686,254

2,172,374

513,880

—

—

—

I 17.0%

31 .9%

9.4%

10.9YO

25.2%

143,290

44,360

98,930

8.5%

7.9%

8.9%

15,320

4,160

11,160

1,681,270

565,170

1,116,100

2,520,780

274.060

—

—

—

160,620

22,220

138,400

183,220

84.840

7.3%

31.0%

430,080

680

17.1%

—

133,500

1,120

5.3%

. —

204,620 9.1% 98,380 -4.4% 429,400 19.1% 132.380 5.9% 2,246,720

almiutis 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.
Ch. 4—P/arming and Environmental Assessment in the Federal Coal Leasing Program ● 129

undeveloped. For example, in North Dakota, a

high proportion of the split estates contain woodland (woody draws) and wetland habitats essential to wildlife (including native prairie lands).

These areas generally were the last homesteaded

due to their low agricultural potential. Wildlife

biologists have expressed concern that mining on

such lands will relieve the pressure, after bond

release, to maintain the lands in their natural state

or, alternatively, that they will be more suitable

for agricultural development after mining (9). The

potential for changes in post-mining land use is

high enough that it has led coal companies to

question the rationale for rigid reclamation standards on split estate lands. In addition, Federal

agency personnel and environmental groups that

fought for high reclamation standards also have

expressed concern over the possibility that mining these lands could speed up the process of

wildlife habitat destruction unless there is some

guarantee that they will be returned to pre-mining

land uses.

Furthermore, the current practice in areas

where split estate ownership predominates (e.g.,

North Dakota) is for the coal company to purchase all of the surface that will be affected by

mining, and then sell it in one block after bond

release. As a result, leasing in split estate and

checkerboard areas is more likely to be noncompetitive. Moreover, this lack of continuity in surface ownership adds to the potential for changes

in post-mining land use. It also means that the

company involved is more likely to be concerned

about the leasing of that area than about regional

leasing levels in generaI.

BLM’s concerns are compounded by the basic

lack of understanding about split estate leasing

by the public and interest groups, who expect

the Federal land management process to be implemented in a uniform manner for all Federal

coal. In many split estate situations, however,

land use, unsuitability, and mitigation decisions

typically are deferred to the State permitting

authority. While such deferrals may be necessary

to obtain data of “mine plan detail” to make a

final decision, or to reflect the role of States and

local governments in land use decisions, they

tend to exacerbate the uncertainty concerning

the eventual effectiveness or adequacy of the coal

leasing program on split estate and checkerboard

lands.

An additional problem arises because the Federal coal management program does not provide

for surface landowners to be represented in the

process once they have given consent to mining,

unless their contracts with the lessee so specify.

This lack of representation may extend through

the activity planning process into mining and

reclamation, and contributes to the uncertainty

about reclamation standards for post-mining land

uses on split estate and checkerboard lands.

The split estate situation also lends itself more

to the application of multiple-use tradeoffs to resolve environmental problems rather than the unsuitability criteria. For instance, for criterion #17

(watersheds) to apply, Federal lands must be

committed by the surface management agency

to use as municipal watersheds. Where the Federal Government does not own the surface, this

criterion cannot be used to protect watersheds.

However, BLM has discretionary authority to exclude watersheds from leasing or impose mitigation measures under the multiple-use screen. Watersheds for community water supplies in both

Utah and North Dakota were protected through

the multiple-use screen rather than through unsuitability criterion #l7 due to split estate ownership (10c; 8b). While this provides flexibility for

BLM in dealing with such situations, it also tends

to create uncertainty about BLM’s ability to protect watersheds and other resource values on split

estate lands.

Options for resolving the uncertainties about

planning and environmental assessment in support of coal leasing on split estate and checkerboard lands include redefinition and the establishment of procedures for land use analyses, and

the preparation of joint Federal-State Resource

Management Plans (RMPs) in order to better assure full evaluation of resource tradeoffs on nonFederal lands. These options are discussed in

chapter 2.
130 ● Environmental Protection in the Federal Coal Leasing Program

COAL EXCHANGES

The Department of the Interior’s coal management regulations allow the Secretary to pursue

coal lease exchanges when “coal exploration, development and mining operations would not be

in the public interest on an existing lease or

preference right lease application or portion

thereof” (43 C.F.R. 3435.1). The purpose of these

regulations is “to shift the impact of mineral operations from leased lands or portions of leased

lands to currently unleased lands to preserve public resource or social values” (43 C.F.R. 3435.0-1 ).

In addition to resolving environmental problems on leases and PRLAs, coal exchanges might

be pursued when the economic value of unleased Federal coal can be used to acquire and

protect other resources on privately owned lands

(e.g., to add them to National Parks or wilderness

areas), or to improve management of Federal

lands.

Three aspects of exchanges are especially important. First, the regulations authorize exchanges

but do not obligate the Secretary to enter into

an exchange; a decision to pursue an exchange

is discretionary. Second, the regulations do not

permit a direct exchange of one coal lease for

another; such exchanges currently require congressional authorization on a case-by-case basis.

Third, all exchanges must be for equal value. Although determination of value is a key aspect of

coal exchanges, the regulations do not clearly

define the procedures for the value determination.

Most of the Federal coal leases and PRLAs currently being considered for exchange were acquired by companies in what maybe considered

a different era. When the basic rights were

granted, neither BLM nor the companies were

required to address environmental issues in as

comprehensive a manner as they are today. Public involvement in leasing was low, and the major concern was to locate minable coal deposits.

In the transition to the current regulatory climate,

companies which had showed economic foresight in acquiring Western coal. reserves suddenly

found that some of those reserves had become

too expensive to develop, or even unminable,

due to the environmental protection laws and

regulations enacted in the last 15 years.

Exchanges that give a company a minable tract

equivalent in value to the original lease would

recognize these changes in environmental laws

and regulations, and relieve the company of the

economic responsibility for not foreseeing the

current environmental risks. Alternatively, environmental problems that prevent mining could

be treated as a normal business risk, and exchanges not allowed unless required to compensate for a “taking” under the Constitution. As a

third alternative, environmental problems that

prevent mining could be examined systematically

to decide how to distribute the risks equitably between the public, which owns the coal resources,

and the company holding the right to attempt development of that coal.

While exchanges can promote environmental

compatibility, they also have economic costs.

placing lands off limits to mining deprives State

and Federal Governments of potential economic

benefits including jobs, severance taxes, and

royalties. These benefits could be viewed as being shifted to other lands, or even postponed to

the future if mining and reclamation technology

advances or energy needs change and mining

proceeds on previously protected lands. However, exchanges that allow companies “liberal”

economic terms today may create pressure for

the availability of exchanges to be expanded. This

could have important implications economically

and environmentally, and any such expansion

should be undertaken cautiously and with full opportunities for effective public participation.

Exchanges also can have significant economic

effects on the participants. A decision by the Federal Government to seek an exchange instead of

finding land to be unsuitable for mining or imposing strict mitigation requirements could save

the lessee or coal owner millions of dollars and

increase coal management revenues to the Federal Government, but, as noted below, could decrease revenues to the States. Whether BLM continues to use the normal leasing process to

foreclose mining on environmentally sensitive
Ch. 4—Planning and Environmental Assessment in the Federal Coal Leasing Program • 131

lands, or develops and implements an exchange

program authorized by Congress, the approach

chosen should be applied in a consistent and predictable manner.

Exchanges of coal lands are a relatively new

issue. In spite of their newness, the total number of exchange opportunities could be quite

large, and the complex environmental and economic issues they pose, and the time needed for

careful evaluation of the case-by-case tradeoffs

they present, could require a significant amount

of BLM’s resources.

Types of Exchanges

Three major types of exchanges might be considered for environmental protection of Federal

lands: special statutory lease exchanges, fee exchanges, and alluvial valley floor exchanges (see

table 16).

The Congress has, in several instances, authorized lease exchanges through legislation specific

to a particular lease or group of leases. The Congress has approved lease-for-lease exchanges to

protect a segment of an interstate highway underlain by Federal coal; to remove PRLAs from the

Kaiparowits Plateau; to protect archaeological,

paleontological and scenic values in the Bisti

Wilderness Study Area in New Mexico; and to

acquire non-Federal interests within the boundaries of the Rattlesnake National Recreation Area

by purchase or a gift including the issuance of

coal bidding rights.

Interior generally has chosen to carry out such

special statutory lease exchanges using the same

procedures as for regulatory exchanges (43 C.F.R.

Subpart 3435). This includes requirements for

public participation, land use planning, application of the unsuitability criteria, and consultation

with the Regional Coal Team and with the Governor of the State in which the lands are located.

Consummating a proposed exchange frequently

is incorporated into the alternatives analyzed in

the 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 to

outright ownership.

pose of a “tract of public land or interest therein”

by exchange when doing so would be in the public interest. DOI holds that section 206 does not

allow exchanges of coal leases but does allow interior to swap federally owned coal for other interests in land.

In a gesture singular to the holders of coal underlying alluvial valley floors, SMCRA established

a special exchange program for these lands. The

law authorizes exchange of existing Federal coal

leases for new Federal leases, as well as exchanges of fee coal (owned rather than leased)

underlying AVFs for unleased Federal coal, to

qualifying companies. While interior’s regulations

generally assume that AVF exchanges with qualifying leaseholders would be in the public interest,

all potential AVF exchanges are evaluated on a

case-by-case basis.

Major Issues

Exchanges involve a new approach to resource

management and many issues surrounding their

ability to resolve environmental conflicts still need

to be resolved. Major uncertainties include the

need for more detailed guidelines and procedures

for effecting exchanges, including environmental

analyses, the use of bidding rights in an exchange,

the entities eligible to participate in exchanges,

valuation procedures, and the time and resources

needed to complete an exchange.

Exchange opportunities may go unrecognized

because there are few regulatory guidelines for

when an exchange is appropriate. Equally important, this could mean that exchanges that are only

marginally in the public interest could be undertaken. All coal development raises some environmental issues. In the current coal market, some

leaseholders might find themselves holding rights

that are not marketable for economic reasons

(e.g., mining costs, access to markets, coal

quality). BLM lacks adequate procedures for distinguishing exchanges that are economically motivated, but clothed in environmental concerns.

Moreover, DOI currently has no authority to

require a lessee or fee coal holder to enter into

an exchange. Given the difficulties inherent in

the exchange process, this lack of authority could

be a hindrance to carrying out environmental
Table 16.—Summary of Recent Exchange Proposals

Authorization and

exchange 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 and

State highways in

northwestern Wyoming

Utah P&L Exchange of eight PRLAs

owned by Utah P&L on the

Kaiparowits Plateau for

leases elsewhere in Utah

c) Lake Desmet Mandated study of possibility

of exchanging private lands

near Lake Desmet Reservoir

in Johnson County, Wyo.,

for Federal coal lands

Public Law 96-475

(Oct. 19, 1980

a) Bisti WSA Directs DOI to issue new coal

3. Public Law 96-401

(Oct. 9, 1980)

leases to the holder of two

New Mexico leases

affecting the Bisti

Wilderness Study Area

Authorized DOI to negotiate

for cancellation of 7 leases

and 11 prospecting permits

on Northern Cheyenne

Reservation, and substitute

Federal coal leases or

bidding rights offreservation

Completed two exchanges (one with

Wyodak Coal Co., one with EXXON);

proceeding with exchanges for KerrMcGee, Belco, Gulf and Big Horn Co.

Dropped from further consideration in

1981 based on DOI determination that

the value of the coal in the PLRAs was

less than the value of the coal sought

on the exchange tracts

DOI recommended against the Lake

Desmet exchange in September 1979

Draft EIS issued Dec. 31, 1981; mining

plan being prepared which will allow a

direct comparison of values on the

lands to be relinquished with the

selected lands; BLM schedule shows

new leases to be issued July 17, 1984

Cancellation agreement signed with

Peabody Coal Co., Consolidation Coal

Co., and Chevron Oil Co.;

noncompetitive or settlement leases

scheduled to be issued in 1984.

Noncompetitive lease (North Duck Nest

Creek) issued to AMAX Coal Co. in

September 1982; remaining two

cancellation agreements (Thermal

Energy Inc. and Wesco Resources Inc.)

signed but Northern Cheyenne did not

concur

4. Public Law 96-476

(Oct. 19, 1960; as

amended in Public Law

98-140; Oct. 31, 1983)

a) Rattlesnake NRA Established Rattlesnake Disputes over administration of the

National Recreation Area bidding rights resolved in 1983

and Wilderness, allowing amendment; bidding rights issued to

DOI to exchange private Montana Power Co. on Nov. 19, 1983,

inholdings for bidding will expire Nov. 1, 1995

DOI is encountering problems over

whether the lands the companies have

selected are more suitable for

competitive lease than exchange, and

over low quality coal (Belco)

Procedures followed by DOI in pursuing

the Utah P&L exchange were criticized

by the General Accounting Office

Outstanding issues include agreement on

the exchange values, consultation with

the Governor of New Mexico, Justice

Department antitrust review, final

environmental analysis. Lands selected

for exchange are also included in the

Bisti No. 1 competitive lease tract

The two disputed cancellation agreements

may have to be resolved through

litigation
Table 16.–Summary of Recent Exchange Proposals (Continued)

Authorization and

exchange Description Current status Comments

rights which may be

exercised in a competitive

coal lease sale or coal

5. Sec. 106, FLPMA lease modification

a) Corral Canyon On June 24, 1983, DOI

exchanged (with Rocky

Mountain Energy Co.) 1,220

acres of private inholdings

in Grand Teton National

Park for 1,190 acres of

Federal land containing 22.3

million tons of coal

b) Circle West

c) Lee Ranch

Economic exchange proposed

by Meridian Land & Mineral

Co. January 1961 on

checkerboard lands in

eastern Montana; deed

exchanged Sept. 8, 1983;

Meridian received

approximately 50 million

additional tons, for a total

of approximately 220 million

tons; agreed to pay 1

percent royalty for coal in

new consolidated tract

Economic exchange proposed

by Sante Fe Railroad Co. in

checkerboard lands in New

Mexico

d) Teton Valley Ranch Exchange proposed by Teton

Valley Ranch, of 354 acres

private land in Wyoming

National Elk Refuge for

1,000 acres public coal in

checkerboard area near

Point of Rocks coal

6. AVF Exchanges reserves

a) Whitney Benefits Proposed AVF exchange

under SMCRA; involved

1,200 acres of leased

private lands in the Tongue

River Valley

Completed

Completed

Original proposal was for 12,298 acres of

coal land containing approximately 148

million tons, for 7,544 acres Federal

coal (approximately 120 million tons);

BLM focusing on smaller exchange

alternatives. Draft land use planning

amendment and environmental analysis

published Nov. 28, 1983; decision on

whether to proceed with exchange is

pending

Scheduled for possible final decision late

in 1984

Rocky Mountain Energy purchased the

inholdings from various private parties

for the purpose of the exchange; suit

pending

Suit pending; recent discovery

habitat on new consolidated

lead to controversy

of wildlife

tract may

BLM still considering proceeding with

competitive leasing of two tracts

involved in the proposed exchange

alternatives (Lee Ranch Middle and Lee

Ranch West Tracts)

Non-Federal sections of land in

checkerboard owned by Rocky Mountain

Energy; Teton Valley Ranch plans to

lease Federal coal in the exchange to

RME if the exchange is completed

Proceeding slowly; questions over Suit pending

collection of administrative costs, and

extent to which private holdings qualify

for AVF exchanges; drilling program is

being proposed for portion of lands

SOURCE: Robert Uram, “Coal Exchanges,” contractor report to OTA, Dec. 23, 1983.
134 ● Environmental protection in the Federal Coal Leasing Program

protection through exchanges. Congress frequently gives Federal agencies condemnation

powers to carry out specific projects; mandatory

exchanges would involve similar activity. However, some recent experience shows that exchange availability may be eased by covering exchange possibilities more explicitly during land

use planning. This also would eliminate the need

to go back and amend plans when a particular

proposal is suggested.

BLM recently issued a written policy statement

outlining the circumstances under which fee exchanges of leasable and salable minerals may be

granted. But that policy statement essentially is

limited to a list of 12 factors that field offices

should consider in determining if a fee exchange

would be in the public interest. Those factors are:

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

The exchange would consolidate Federal

holdings into a logical mining unit(s).

The exchange would consolidate non-Federal holdings into a logical mining unit(s).

The exchange would serve a national resource management or protection need.

The exchange would simplify jurisdiction

and allow Federal land use planning efforts

to be confined to an area in which the

United States controls the mineral development.

The exchange would reunite Federal surface and subsurface estates.

The exchange would eliminate isolated

tracts and checkerboard patterns of Federal

minerals.

The exchange would achieve a management goal without using appropriated funds

to pay for the resources needed by the

United States.

The exchange would meet needs of State

and local people.

The non-Federal lands to be received in the

exchange would serve the public better in

public ownership than the minerals to be

transferred in the exchange.

The exchange would enhance competitive

bidding for the Federal minerals.

The potential revenue from a lease or sale

of the Federal minerals consolidated by the

exchange would be greater than the potential revenue from a lease or sale of the min12.

erals in Federal ownership prior to the exchange.

The exchange does not involve a transfer

of a fee interest in Federal minerals for a

less than fee interest (e.g., conservation or

scenic easements) in non-Federal lands. If

a less than fee interest in non-Federal lands

is all that is needed, a fee exchange shall

be followed by a competitive bidding, or

a modified competitive bidding; or a modified competitive bidding, sale of the unneeded interests as the situation dictates.

One or more of these factors must be present

in any fee exchange proposal, and an exchange

that would have an opposite effect to any factor

should not be pursued. While this policy statement is a worthwhile start on developing guidelines for effecting exchanges, it still does not provide sufficient guidance to field personnel and

is only applicable to fee exchanges. Lease exchanges still need congressional authorization.

In developing an effective exchange program,

BLM needs to pay particular attention to environmental analysis of exchange tracts. This became

an issue in a recent exchange that was, at least

in part, environmentally motivated, when it was

discovered after the exchange was complete that

the tract the company was given includes potentially valuable wildlife habitat.

A second factor that influences the extent to

which exchanges can be used is the willingness

of the industry to accept the bidding rights interior offers in an exchange. In the case of fee

coal exchanges, where the holder of a coal right

receives unleased and unencumbered Federal

coal, there appears to be no bar to ready acceptance of the rights granted. Along with the economic benefits from “blocking up” checkerboard

areas, the elimination of Federal supervision and

diligence and royalty provisions may be factors

influencing the easy acceptability of fee coal exchanges.

There is the possibility that exchanges would

be suggested most often in situations where agency or public pressure or other legal impediments

may make mining of an existing leaseholding

quite difficult. In such cases, the assurance of

receiving a bidding right in exchange for a tract
Ch. 4—Planning and Environmental Assessment in the Federal Coal Leasing Program ● 135

that cannot be developed without serious resistance may more than compensate for any real or

perceived problems with Federal leasing or bidding rights. It is clear, however, that the continued inability of Interior to lease coal regularly

and without conflict will continue to be an impediment to lease exchanges for bidding rights

because companies accepting such rights have

little assurance of when or even if they will be

able to exercise them.

An additional question is whether the exercise

of a certificate of bidding rights issued in exchange for a coal lease or a PRLA should be considered a distribution of funds to a State under

30 U.S.C. 191. The Department does not consider an exercise of a bidding right to be a distribution of revenues, but to date, no bidding rights

have been issued under DOI's general regulations. If DOI’s interpretation is correct, a significant exchange program could result in the loss

of revenues to a State in which a bidding right

is exercised (compared to the distribution of

bonus payments, royalties, etc., under a normal

lease). However, as noted above, issuing bidding

rights instead of a direct exchange for another

parcel of land could present significant cost savings for BLM. Bidding rights also eliminate the potential for an exchange resulting in a coal lease

being issued on a noncompetitive basis.

BLM also must resolve outstanding issues about

the entities eligible to participate in exchanges.

The major question here is whether the fee exchange provisions in Section 206 of FLPMA allow

unleased Federal coal to be transferred to entities

(primarily railroad companies) that otherwise are

not allowed to hold Federal coal leases under

Section 2(c) of the Mineral Leasing Act of 1920.

This issue principally affects coal in “checkerboard” areas where DOI has proposed or contemplated exchanges with railroad companies or

their subsidiaries. The purpose of these kinds of

exchanges would be to consolidate land ownership patterns to enable formation of logical mining units.

Another major area of uncertainty is valuation

procedures for the minerals involved. Such procedures are relatively well-defined for land exchanges, but these are inappropriate for use in

the majority of mineral exchanges. BLM feels that

detailed procedures for value determination are

more appropriately addressed in the BLM manual and in instruction and guidance memoranda

rather than the program regulations. However,

as in other areas discussed previously (e.g.,

guidelines and standards for data adequacy),

while such internal documents provide greater

flexibility for BLM, they are not subject to formal

public review and comment, and can be changed

more easily than regulations. If such regulations

were drafted skillfully they could provide sufficient guidance to facilitate more effective participation by coal companies and other interested

groups without undermining the Bureau’s need

for flexibility. The general guidance in such

regulations could then be supplemented by internal memoranda and the BLM manual. Furthermore, some of Interior’s valuation problems may

be eased if it were to use publicly available, rather

than proprietary, models. Frequently it uses a proprietary model, which complicates the ability of

the affected company and the public to evaluate

and criticize the assumptions leading to the equal

value determination.

The usefulness of the exchange program ultimately depends on the amount of resources interior is willing or able to devote to them. Even

in economic exchanges, Interior has found that

exchanges require a high commitment of Departmental resources compared to direct leasing. This

is because of the need to evaluate two parcels

(the offered and selected lands) to end up with

only a single leasable parcel. Where coal is being acquired through exchange for environmental

protection (as in the Bisti exchange), Interior must

expend considerable resources with no opportunity for an economic return on those resources.

Exchanges could be a valuable tool for resolving conflicts over environmentally sensitive lease

tracts if all of the issues discussed above were resolved, and if BLM had authority to pursue lease

exchanges. Until these and other related problems are resolved, however, the ability of Interior

to complete exchanges will be constrained.
136 . Environmental Protection in the Federal Coal Leasing Program

CHAPTER 4

1. Bureau of Land Management, U.S. Department

of the Interior, Appropriation Summary Statement: Management of Lands and Resources (unpublished, 1983).

2. Bureau of Land Management, U.S. Department

of the Interior, Draft Coal Environmental Impact

Statement, Green River-Hams Fork Region,

Round Two (Washington, D. C.: U.S. Government Printing Office, 1983).

3. Bureau of Land Management, U.S. Department

of the Interior, Final Environmental Statement,

Federal Coal Management Program (Washington, D.C.: U.S. Government Printing Office,

1979).

3a. Bureau of Land Management, U.S. Department

of the Interior, Fort Union Regional Coal Environmental Impact Statement, Draft (Washington, D. C.: U.S. Government Printing Office, July

1982).

4. Bureau of Land Management, U.S. Department

of the Interior, Fort Union Coal Tract Summaries, September 1981.

4a. Bureau of Land Management, U.S. Department

of the Interior, Green River-Hams Fork Draft

Coal Environmental Impact Statement, Round

Two (Washington, D. C.: U.S. Government Printing Office, 1983).

4b. Bureau of Land Management, U.S. Department

of the Interior, Powder River Coal Tract Summaries (Washington, D. C.: U.S. Government

Printing Office, April 1983).

5. Bureau of Land Management, U.S. Department

of the Interior, Preliminary Draft, Regional Leasing Levels (unpublished, Nov. 22, 1982).

6. Bureau of Land Management, U.S. Department

of the Interior, private communication to OTA.

7. Bureau of Land Management, U.S. Department

of the interior, San Juan River Regional Coal Environmental Impact Statement, Second Draft

(Washington, D. C.: U.S. Government Printing

Office, October 1983).

7a. Bureau of Land Management, U.S. Department

of the Interior, Uinta-Southwestern Utah Final

Environmental Impact Statement, Coal (Washington, D. C.: U.S. Government Printing Office,

February 1981).

8. Bureau of Land Management, U.S. Department

of the Interior, West-Central North Dakota

Management Framework Plan Summary, Center-Stanton Deposit, July 1981.

8a. Cannon, James, Environmental Protection Pro8b.

9.

10,

10a.

10b.

10c.

10d.

10e.

11

1 la.

12.

13.

14.

15.

16.

17.

17a.

18.

cedures Within the Federal Coal Management

Program (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 of

the 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 (contractor report to OTA, Dec. 19, 1983).

Hayden, Brace, Case Study: Powder River Region (contractor report to OTA, Dec. 19, 1983).

Kimball, Dan and, Hardaway, John, Case Study:

Uinta-Souhwestern Utah Region (contractor report to OTA, Dec. 19, 1983).

Kimball, Dan, and Stoecker, Robert, Case Study:

Green River-Hams Fork Region (contractor repOrt to OTA, Dec. 19, 1983).

Larson, Douglas, Issues Related to Environmental Analysis of Federal Coal Lease Tracts in Five

Western Coal Regions: Overview (contractor

report to OTA, Dec. 19, 1983).

Letter, from The Secretary, U.S. Department of

the Interior, to The Honorable Quentin Burdick,

U.S. Senate, June 8, 1983.

Memorandum, from the Deputy Director for

Energy and Mineral Resources, Bureau of Land

Management, to the Colorado State Director,

Bureau of Land Management, July 6, 1983.

Memorandum, from The Secretary, U.S. Department of the Interior, to The Director, Bureau of

Land Management, Apr. 5, 1983.

Minutes, Federal-State Coal Advisory Board,

Dec. 3, 1982.

National Wildlife Federation v. Burford, Civil Action 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 Action

No.

Office of Technology Assessment, U.S. Congress, Management of Fuel and Nonfuel Minerals on Federal Lands, OTA-M-88 (Washington,

D. C.: U.S. Government Printing Office, 1979).

Uram, Robert, Coal Exchanges (contractor

report to OTA, Dec. 23, 1983).

U.S. Department of the Interior, Secretarial Issue

Document, Fort Union Coal Production Region,

1983.
Appendixes
Appendix A

Environmental Laws

In addition to the specific requirements of the Federal Coal Leasing Amendments Act (FCLAA) and the

Federal Land Policy and Management Act (FLPMA)

related to environmental planning and assessment, a

number of other environmental laws apply to the Federal coal management program. These include the

Surface Mining Control and Reclamation Act, the National Environmental Policy Act, and the Clean Air and

Water Acts. This section will briefly describe the provisions of these laws as they relate to surface mining

operations, discuss the impacts of mining to which

they pertain, and review issues raised by the implementation of these acts in the coal program. A list

of other environmental laws that may affect leasing

or mining in the West may be found at the end of

chapter 3.

Surface Mining Control and

Reclamation Act

Congress approved the Surface Mining Control and

Reclamation Act (SMCRA) (Public Law 95-87, 30

U.S.C. 1201 et seq.) in August 1977. SMCRA establishes a detailed national program for addressing the

environmental effects of coal mining. Of particular importance are the act’s requirements that surface coal

mining operations be conducted in accordance with

environmental protection performance standards (sec.

51 5), and that Federal lands be reviewed to determine

their acceptability for all or certain types of surface

mining, either as part of land use planning processes

at the Federal, State, and local levels, or as a result

of an unsuitability petition (sec. 522). SMCRA requires

operators to post a bond to insure the mined land is

reclaimed.

The performance standards of section 515 are minimum standards applicable to various aspects of the

mining and reclamation process. Under SMCRA, the

States may, if they choose, impose standards that are

more stringent. Among other things, the standards

require:

maximum utilization and conservation of the coal

being recovered;

restoration of disturbed land to original or better

conditions;

restoration to the approximate original contour

of the land surface;

stabilization and protection of all surface areas;

protection of prime farmlands through specific

reclamation techniques;

Ž minimization of disturbances to the existing hydrologic balance; and

. limitation of mining on steep slopes.

Section 522 of SMCRA establishes a procedure for

designating lands as unsuitable for all or certain types

of coal mining operations. The Secretary of the Interior

determines unsuitability for Federal lands, while States

have authority over non-Federal lands. Section 522(a)

provides specific unsuitability criteria which define

categories of land that must be protected from, or during, mining (incorporated in the Bureau of Land

Management’s (BLM) land use planning regulations

as criteria #1, #3, and #7). Interested parties also may

petition the permitting agency (the Office of Surface

Mining or a State regulatory agency in States with approved programs) to have areas designated unsuitable;

the petition must be granted if it is determined that

reclamation of disturbed lands is not economically or

technologically feasible. Unsuitability status also may

be granted, if as a result of the petition, it is determined

that mining operations will:

be incompatible with existing land use plans;

significantly affect important fragile or historic

lands;

result in substantial loss or reduction in the productivity of renewable resource lands which produce food or fiber; or

substantially endanger life and property in natural hazard lands (i. e., areas subject to frequent

flooding and areas of unstable geology).

Federal Agencies

SMCRA also created the Office of Surface Mining

Reclamation and Control (OSM) within the Department of the Interior (DOI) to implement the statute’s

various programs. OSM reviews and approves/disapproves State programs for controlling surface mining

operations (and abandoned mine lands). The act

originally provided for slightly less than 3 years of Federal enforcement of State-issued operating permits implementing the most stringent of the act’s performance

standards (known as the “interim regulatory program”). At the end of three years (June 3, 1980), primary regulatory responsibility for the program was to

have shifted to those States whose proposed program

for assuming regulatory primacy had been approved

by DOI. In those States in which primacy was not

achieved, a Federal program is to be implemented and

administered by OSM. Three and one-half years after

139
140 ● Environmental Protection in the Federal Coal Leasing Program

enactment of the statute, all mining operations were

to have been in compliance with permits issued in

accordance with the full range of regulatory requirements, as administered by either the States or OSM,

Because substantial Western coal reserves are

owned by the Federal Government, OSM has had direct responsibility not only for enforcing the act’s

regulatory requirements, but also for issuing operating

permits on specific mines. The responsibility for overseeing mining activities on Federal lands, lies primarily

with OSM, as assisted by the Bureau of Land Management, the U.S. Forest Service, and the U.S. Geological Survey, as well as with those Western States with

Federal lands within their boundaries that have approved permitting programs and have signed cooperative agreements with DOI.

BLM is the leading agency for Federal minerals including resource conservation, diligence, and royalties

under the Mineral Leasing Act. Under a variety of Federal statutes, BLM also is responsible for the management and protection of surface resources on public

domain lands. BLM can set post-mining land use performance bond limits to assure protection of these

resources. The Forest Service performs a similar role

for National Forest lands.

OSM, with the concurrence of BLM and the Forest

Service, submits recommendations to the Secretary of

the Interior concerning the approval or disapproval

of mine plan applications. The Forest Service must

consent to the issuance of mine plan approvals for

mines within the boundaries of any National Forest.

Applicable Federal, State, and local agencies retain

similar authority with respect to mines that might

adversely affect any public park or site included in the

National Register of Historic Sites.

States

Each of the Western States with significant coal reserves had enacted surface mining legislation in the

1970’s prior to passage of SMCRA. The stringency of

the pre-SMCRA State programs varied significantly,

with Wyoming and Montana generally recognized as

having had the most stringent programs, and Utah and

New Mexico the least stringent. All of the Western

States have revised their programs to comply with

SMCRA, and have received approval of their permanent regulatory programs and have qualified for

assumption of primary regulatory jurisdiction of surface mining and reclamation.

Thus, the States have assumed primary responsibility

for mine plan compliance and enforcement of the

Act’s requirements. Those States with approved permit plans that have entered into a cooperative agreement with DOI also have the authority to regulate mining on Federal lands within their boundaries. The

Secretary of the Interior, however, retains the authority

to approve or disapprove mining plans on Federal

lands and to designate Federal lands unsuitable for

mining.

State Permit Programs.–To accomplish the goals

established by the Act, State permit programs for surface mines and for surface operations of underground

mines were mandated. Each application for a surface

coal mining and reclamation permit must include detailed information about the type and method of coal

mining operation and the engineering techniques and

equipment to be used; the probable hydrologic consequences of the mining and reclamation, both on and

off the mine site; any manmade features or significant

archaeological sites that may be affected by mining;

the geological and physical characteristics of the coal,

including a chemical analysis of potentially acid- or

toxic-forming strata; a soil survey of potential prime

farmland; and the reclamation plan.

The probable hydrologic consequences of mining

and reclamation must be determined relative to the

hydrologic regime and the quantity and quality of surface and groundwater systems including dissolved and

suspended solids under seasonal flow conditions. Sufficient data must be collected to enable the regulatory

agency to assess the probable cumulative impacts of

all mining in the area on hydrology and water availability.

The reclamation plan must describe the condition

of the land prior to mining including its existing and

potential land uses and its productivity as well as its

average yield of food, fiber, forage, or wood products

under optimum management. The plan also must

specify the proposed post-mining land use and describe in detail how this use will be achieved including

the engineering techniques and equipment to be used,

the cost per acre of reclamation, and a detailed timetable for accomplishing reclamation. In addition, the

plan must describe the means of compliance with

applicable air and water quality and health and safety

regulations.

All surface mining permits issued under the Act must

require that the coal mining operations meet all applicable environmental protection performance standards. These standards govern the maximum recovery

of fuel; restoration of the land to its approximate

original contour; use of explosives; waste disposal, including the use of waste piles as dams or embankments; construction of access roads; and revegetation.

Additional, more stringent standards apply to environmentally sensitive areas such as prime farmland, steep

slopes, alluvial valley floors, and timber lands.

Permits for underground mining also must require

the mine operator to prevent subsidence to the ex-
Appendix A—Environmental Laws Ž 141

tent possible, seal all openings to the surface, and prevent acid or other toxic drainage.

Water Resource Impacts

OSM and the Environmental Protection Agency

(EPA) are the principal Federal agencies responsible

for review of water resource impacts of coal mining

activities. Water resource data are major components

of a mine permit application, and compliance with

water resource performance standards must be

demonstrated before an application can be approved.

Section 51 S(b) of SMCRA establishes performance

standards related to water resource impacts. These

include:

● control of discharges from mining and reclamation 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 regulatory

authority, and the agency responsible for implementation of the Clean Water Act in each State (see

below). The Clean Water Act requires mining operations to obtain discharge permits and to comply with

EPA or State effluent limitations. However, the Clean

Water Act permit system applies only during the active phase of mining, Under SMCRA all water discharged as a result of coal mining and reclamation

activities is regulated. Effluent limitations established

by OSM are generally similar to those adopted by EPA.

Also, OSM regulations require sediment control

measures using the “best technology currently available” and minimum standards for permanent and

temporary impoundments as part of reclamation activities. Permanent impoundments may be constructed

only if size and design criteria are adequate to ensure

stability, safety, and access. In addition, SMCRA requires that the recharge capability of the mined area

be restored to the approximate pre-mining condition.

Furthermore, mine operators are required to monitor

groundwater and surface water quantity and quality

on 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 hydrologic

importance. The more important AVFs are protected

from coal mining and its associated disturbance. The

less important AVFs may be mined, but standards for

reclamation are higher than for other types of mined

areas.

Section 510(b)(5) of the act allows the Secretary of

the Interior to exchange unleased Federal coal reserves for existing leases or non-Federal lands that cannot be mined because of AVF designations provided

that coal is not yet being produced from the mine and

the operator had made a substantial legal or financial

commitment to develop a mine before January 1,

1977. The Act also requires the Secretary to exchange

non-Federal coal lands in AVFs that cannot be mined

for available Federal coal lands of comparable value;

these exchanges are not subject to the requirement

of substantial legal and financial investments.

The impact of the AVF statutory provisions, adopted

regulations, and guidelines have been the subject of

continued debate among industry and regulating Government agencies. industry has claimed that the AVF

provisions are overly complex, lead to significant

delays in processing permits, and may ultimately lead

to 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 Federal

agency decisionmaking in favor of a systematic, interdisciplinary approach that would ensure that environmental amenities and values receive appropriate consideration along with the traditional economic and

technical factors. NEPA was the first major environmental legislation approved by Congress, and it has

remained the most far-reaching in scope.

In general, NEPA has a threefold purpose: 1) to

declare a national policy to create and maintain conditions under which man and nature can exist in productive harmony and can fulfill the social, economic,

and other requirements of present and future generations; 2) to increase the understanding of ecological

systems and natural resources; and 3) to promote efforts that will prevent or eliminate damage to the environment. As one means of achieving these purposes,

NEPA requires all Federal agencies to include a

detailed statement in every recommendation or report

on proposals for legislation and other” . . . major Fed-

● Alluvial valley floors are those stream valleys in the Western United States

which: 1 ) are underlain by unconsolidated gravel, sand, silt, and clay; 2) have

a stream flowing through them; 3) have a generally flat valley floor

topographic surface; and 4) have an agricultural importance. The relative

importance of these valleys is a function of the water supplies available in

the specific valley area. The agricultural activities generally include irrigated

or subirrigated hay lands, developed pasture lands, critically important grazing areas, or lands that could be developed for any of these purposes.

34-756 0 - 11 - QL3
142 . Environmental Protection in the Federal Coal Leasing Program

eral actions significantly affecting the quality of the

human environment . . . “ that describes:

possible environmental impacts of the proposed

Federal action,

any adverse environmental effects that cannot be

avoided should the proposed action be implemented,

alternatives to the proposed action and their environmental impacts,

the relationship between local short-term uses of

man’s environment and the maintenance and

enhancement of long-term productivity as it applies to proposed Federal actions, and

any irreversible and irretrievable commitments of

resources that would result from implementation

of the proposed action.

All coal-related activities that have a significant impact on the environment and that need Federal

authorization require an environmental impact statement (EIS). This includes regional coal lease sales on

Federal lands, large coal conversion facilities, and, in

some cases, permits to conduct surface mining operations on Federal lands. Although permits issued by

the EPA under the Clean Air and Water Acts are exempt from the EIS requirement, those acts require

separate analyses of a project’s impact on the environment (see below). Regulations to guide the implementation of NEPA have been promulgated by the

Council on Environmental Quality (CEQ) (40 C.F.R.

1500-1 508). A large body of Federal case law has further defined NEPA requirements, particularly with regard to the scope and contents of EISs.

In order to determine whether a proposed action

is “major” and if it “significantly” affects the environment, Federal agencies are required to prepare environmental assessments (EAs). These provide a brief examination and analysis of proposed actions and of

alternatives to those actions, a discussion of the need

for the proposed action, an examination of the environmental impacts of the proposed actions and alternatives, and a list of government agencies and people

consulted during the preparation of the EA. Environmental assessments are public documents. If an EA

indicates that an action is not “major” or that it will

not “significantly” affect the environment, the CEQ

regulations allow the agency to make a “finding of

no significant impact” (FONSI). Such findings must be

published with an explanation of the basis for the

agency determination. No detailed EISs are required

for actions which are found not to have significant

impacts.

An EIS is prepared by BLM for each regional coal

lease sale during activity planning, immediately following the ranking of tracts and selection of alternatives by the Regional Coal Team (RCT). The EIS must

analyze site- specific environmental impacts on each

tract or combinations of tracts (alternatives) being considered for leasing; the cumulative environmental impacts from each preferred or alternative combination

of lease tracts and sale schedules; and the potential

effects of a “no action” alternative (usually either no

new leasing, or no competitive leasing). Under the

current leasing program regulations, the EIS is the only

point pre-leasing at which cumulative impacts must

be assessed. However, approval of a land use plan

(Resource Management Plan–RMP) under FLPMA has

been determined to be a major action significantly

affecting the environment, and the environmental

analysis of alternatives is an integral part of the RMP

process. Thus, as RMPs are prepared, the consideration of cumulative impacts from land use planning

decisions will be included in the decisionmaking process before the completion of tract ranking and the

selection of alternatives.

CEQ regulations implementing NEPA also require

the preparation of an EIS when rulemaking is initiated

by significant new circumstances or information relevant to environmental concerns, and thus is anticipated to have a significant impact on the environment.

The initiation of the new Federal coal management

program in 1979 was accompanied by a detailed programmatic EIS prepared in accordance with NEPA.

When those regulations were revised in 1982-83, DOI

prepared an EA that concluded that a second full EIS

to analyze those revisions would not be necessary

(FONSI). One basis for this decision was that the revisions to the regulations are sufficiently close to one

of the leasing alternatives discussed in the 1979 Programmatic EIS that preparation of a supplemental EIS

was considered unnecessary,

Critics of that decision assert that the EA did not take

a sufficiently “hard look” at the impact of leasing

changes to justify a “finding of no significant impact.”

They argue that the revised regulations included significant new circumstances or information compared

to the coal program studied in the 1979 Programmatic

EIS, and therefore merited a revised EIS. To support

this argument, the critics cite the substantive changes

in the methodology for setting regional leasing levels

in the 1982 regulations which resulted in significant

increases in those levels. Furthermore, the critics note

that, since the 1979 EIS, a number of in-depth analy-
Appendix A—Environmental Laws • 143

ses of Federal coal development issues have been conducted (including the 1981 OTA report An Assessment

of the Development and Production Potential of Federal Coal Leases), that introduced new data that were

unavailable in 1979.

The Clean Air Act

The Clean Air Act establishes a national system of

air quality regulation. Before 1970, air pollution control essentially was left to the States, with the Federal

Government providing technical and financial assistance for planning and research and development.

Under the Act, EPA is responsible for implementing

Federal regulations and standards; States are mandated to devise State implementation plans (SIPS) and,

in the absence of State action, Federal intervention

is required.

The central feature of the 1970 Clean Air Act

Amendments was the requirement that EPA promulgate National Ambient Air Quality Standards

(NAAQS). The NAAQS define air quality in terms of

ambient concentration of pollutants. While these

standards do not regulate emissions from individual

sources, they do represent target levels for air quality.

Under the Clean Air Act, two types of ambient air

quality standards are designated: primary standards,

which are designed to protect human health; and secondary standards, which are intended to safeguard

public welfare.

Pursuant to the 1970 Clean Air Act Amendments,

EPA identified six pollutants as having potentially

adverse effects on public health and welfare, and

established primary and secondary NAAQS for each.

These pollutants are sulfur oxides (SOX

), particulate

matter, nitrogen dioxide (NO2

), hydrocarbons, photochemical oxidants, carbon monoxide, ozone, and

lead.

So that pollution control programs can be managed

locally, 247 air quality control regions (AQCR) were

designated. Each AQCR is classified as to whether it

meets national standards. The classification of an area

with respect to ambient air quality has important consequences. Regions that are found by EPA to be in

nonattainment status are subject to a particular set of

restrictions (“offset” requirements) under the Act.

Nondegradation regions (where air is cleaner than the

standards), are subject to a different set of regulations,

which are intended for “prevention of significant

deterioration” (PSD). Regardless of an area’s classification, almost every new major source of emissions is

required to undergo a preconstruction review.

State Implementation Plans

The State role centers on the preparation and implementation of a plan, consistent with EPA guidelines,

that sets out control strategies for meeting and maintaining NAAQS in various parts of the State. States

have considerable discretion in deciding what emission limitations and other controls on individual

sources to use in cleaning up their air, as long as their

SIPS are shown to be capable of achieving the national

standards. State plans must include an enforceable

permit program for regulating construction or operation of any new major stationary source in nonattainment areas or significant modification to an existing

facility.

Prevention of Significant Deterioration

The 1970 Clean Air Act Amendments did not address the question of air quality in areas already

cleaner than NAAQS require. In 1972, environmental

groups brought suit against the EPA to prohibit the

administration’s approval of SIPS that failed to prevent

significant deterioration of air quality. The outcome

of the legal action was a court order that EPA develop

a program to prevent the degradation of air quality

in clean areas. In 1974, PSD regulations were promulgated and incorporated into all SIPS and in 1977 were

incorporated in the act with some changes.

In general, the PSD program divides clean air areas

into three classes. Certain National Parks, wilderness

areas, and monuments that existed when the Act was

passed were immediately designated as class I areas.

Class I areas are subject to the lowest PSD increments

and are primarily valued for their scenic beauty. All

other clean air areas were designated class II. In class

II areas, some additional air pollution and moderate

industrial growth were allowed. Individual States or

Indian Tribal governing bodies can redesignate some

class II areas as class III areas where major industrial

development is foreseen. In class III areas, air pollution up to one-half the level of the secondary standards would be permitted. The States or Indian Tribes

also can redesignate class II areas as class 1. Either type

of redesignation is subject to hearings and consultations with the managers of affected Federal lands, or

States in the case of Indian action, and approval by

EPA.

All SIPS must specify emission limitations and other

standards for each class area. Maximum allowable

concentrations for a specified period of exposure must

not exceed the applicable primary or secondary

NAAQS, whichever is stricter.
144 . Environmental Protection in the Federal Coal Leasing Program

To obtain a permit for a facility in a nondegradation area, a special preconstruction review must demonstrate that it will not cause air pollution in excess

of NAAQS or PSD standards more than once per year

in any AQCR. Best available control technology

(BACT) must be used for all pollutants regulated by

the Act, and the effects of the emissions from the facility on the ambient air quality in the areas of interest

must be predicted. Impacts on air quality that could

result from any growth associated with the facility must

also be analyzed. The PSD impact projections are

cumulative for the region of the source. Additional

assessments of the effects on visibility in class 1 areas

and on air quality-related values also must be included

in the PSD review.

Fugitive dust emissions currently are excluded from

the PSD regulations, and coal mines are not subject

to PSD review. State air permits are required for most

coal mines, but State PSD permits would only be required if projected emissions were very high (250 million tons per year or greater).

Mining Activities

Air quality concerns regarding coal mining activities focus on fugitive dust and its effect on total

suspended particulate (TSP). Thus far, air quality concerns have had only a minor effect on Western coal

development. For example, in some areas of the

Powder River Coal Region, fugitive dust emissions

have exceeded the National Ambient Air Quality

Standards, and mining operations have had to adopt

better dust control measures. However, the level of

production in this region has not been constrained by

air quality standards. Currently, emissions (88 million

tons annually) are far below the permitted air quality

capacity of 250 million to 290 million tons annually.

Roads are the major source of fugitive dust from surface coal mining operators. Other sources of fugitive

dust are trains, coal storage and processing facilities,

spoil piles, and reclamation areas. Methods for controlling fugitive dust emissions include: 1 ) periodic

watering and chemical stabilization of unpaved roads;

2) paving roads; 3) enclosing, watering, or treading

haul trucks and railroad cars; 4) substituting conveyor

systems for haul trucks; 5) minimizing the area of

disturbed land; 6) prompt revegetation of regraded

lands; and 7) covering coal storage areas. Each surface mine in the West employs at least one of these

methods. For example, many mines now enclose their

coal storage areas and all mines water haul roads and

revegetate topsoil stockpiles.

The Clean Water Act

The Clean Water Act establishes national water

quality goals that call for the protection and propagation of fish and wildlife, and the elimination of all pollutant discharges. The States have the primary responsibility for achieving these goals and for planning the

development and use of land and water resources

consistent with them. Each State is required to develop

and implement, subject to EPA approval, a comprehensive water quality management plan that includes

water quality standards, These standards consist of the

designated uses of the waters involved, including their

use and value for public water supplies; propagation

of fish and wildlife; recreational, agricultural, industrial, and other purposes; and navigation. In addition,

the standards include water quality criteria for the

waters based on these uses.

In general, the water quality standards are to be

achieved through effluent limitations on discharges

from point sources. However, for those waters for

which the effluent limitations are not stringent enough

to implement the applicable water quality standard,

the State must establish a total maximum daily load

for the relevant pollutants. This load must be set at

the level necessary to implement the applicable water quality standards with seasonal variations and a

margin of safety that takes into account any lack of

knowledge concerning the relationship between effluent limitations and water quality.

No comprehensive Federal policy for water resource management has been established. The availability of water and restrictions on its usage are the

responsibility of States and Interstate Water Commissions. In all Western States, water supplies diminished

or degraded by mining activities are required to be

replaced by the operator.

Effluent Limitations

Effluent limitations are restrictions established by a

State or EPA on quantities, rates, and concentrations

of chemical, physical, biological, and other constituents that are discharged from point sources. Effluent

limitations may be categorized by: 1) the sources for

which they have been established, 2) whether those

sources discharge directly into receiving waters or into

a publicly owned treatment works, and 3) the degrees

of control required for each category of sources or

pollutants and the dates those controls become mandatory. Effluent limitations for coal mines regulate

discharges of iron, manganese, and total suspended

solids, as well as the pH.
Appendix A—Environmental Laws ● 145

In general, the 1977 Amendments require all categories of point sources to apply the best practicable

control technology currently available in order to meet

the effluent limitations. Slightly more or less stringent

technological controls may be imposed, depending

on the source category and the type of effluent. In

determining the control measures and practices to be

applicable to point sources, EPA must take into account: the age of equipment and facilities involved;

the process employed; the engineering aspects of the

various types of control technologies; process

changes; nonwater quality environmental impacts (including energy requirements); and the total cost of

achieving the limitation in relation to the effluent reduction benefits to be achieved.

Permit Systems

Effluent limitations and water quality standards are

implemented through State certification programs and

through the National Pollutant Discharge Elimination

System (NPDES). An applicant for a Federal license

or permit to conduct any activity that may result in

a discharge into navigable waters must obtain State

certification that the discharge will not violate any effluent limitations, water quality standards, or New

Source Performance Standards (NSPS). Where the discharge will affect more than one State, the Federal

licensing or permitting agency must condition the permit to ensure that all water quality requirements will

be met. In addition, when Federal regulations require

only a construction permit, the certifying State must

be given an opportunity to review the manner in

which the facility will be operated in order to ensure

that water quality requirements will not be violated.

If the State finds that the operation of the facility will

result in violations, the Federal agency may suspend

the license or permit.

NPDES is designed to ensure the orderly and timely

achievement of water quality goals without sacrificing economic or energy growth. Under NPDES, a facility may be issued a permit for a discharge on the

condition that the discharge will meet all applicable

water quality requirements, NPDES permits are issued

under EPA-approved State programs, or, where a State

program has not been approved, by EPA. The permits

are for fixed terms not to exceed 5 years and can be

terminated or modified for violations. Compliance

with the conditions under which an NPDES permit is

issued is deemed compliance with the effluent limitations and water quality standards promulgated under

the Clean Water Act.

Water Availability and Quality

Impacts from Mining

Coal mining activities disrupt groundwater flow and

quality. Opening a pit for surface mining affects the

level and flow of groundwaters. The mine pit will intercept all groundwater found above the pit floor.

Groundwater may change direction or even reverse

as water surrounding the pit flows toward the pit. As

water flows into the pit, water levels in surrounding

areas will fall. Ultimately, an equilibrium condition will

be established. When this condition is reached, however, depends on the characteristics of the aquifers

(water-transmitting rocks) and the length of time the

pits are open.

Water quality also can be affected by coal mining

activities. Groundwater moving through backfilled surface mines is known to have substantially increased

concentrations of total dissolved solids and other constituents. In addition, erosion of mine and reclamation areas can increase sediment loads in streams.

Also, surface waters can be affected by slippage of

polluted groundwaters into receiving streams.

Because of these impacts, effluent limitations have

been established for mining operations, broken down

into those applicable to acid drainage and alkaline

discharge. Under the Clean Water Act, mining operations must obtain discharge permits and comply with

EPA or State effluent limitations for point source

discharges of pollutants to surface waters. However,

the Clean Water Act permit system applies only during the active phase of mining including secondary

recovery facilities and preparation plants; it does not

extend to reclamation, nor does it cover nonpoint pollution sources or consider discharges to groundwater.

These impacts must be addressed through the mining and reclamation permit under SMCRA.

The EPA may modify any of the limitations for a

point source if the owner of the source demonstrates

that the modified requirement will represent the maximum use of technology within his economic capability and will result in reasonable further progress

toward the discharge elimination goal. The 1977

amendments provide that such a modification is mandatory if the owner also demonstrates that it will not

interfere with attainment of a water quality standard,

and it will not result in additional requirements on any

other point source.
Appendix B

Formulas 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 requirement

Inventory requirement – Productive capacity = Annual shortfall

Contracting Rate Method:

Productive capacity – Contracted coal = Residual capacity

Annual new contracting * Years between sales = New contracting

Average new contract * (Inventory factor * Competition factor) = Minimum inventory

Minimum inventory + New contracting = Full inventory

Full inventory – Residual capacity = Annual shortfall

Expressions of Interest Method:

Expressions of interest – Nonthorough expressions = Thorough expressions

Thorough 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 TY

Average mine life

Percent Federal ownership

Years between Federal

lease sales

Annual production from

new contracting

Inventory factor

Competition factor

Annual production from

average new contract

Expressions of interest

Nonthorough expressions

Duplicate expressions

Maintenance tracts

Bypass tracts

= 199 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 (low )

= 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 tracts

New 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 MT

100 + 200 + 100 = 400 MT

Summary of Results of Formulas (million tons recoverable resource)

Method Low Medium High

Production . . . . . . . . . . . . . . . . . . . . . . 0 112.5 315.0

Inventory . . . . . . . . . . . . . . . . . . . . . . . 1,080.0 1,350.0 1,755.0

Contracting rate . . . . . . . . . . . . . . . . . 337.5 382.5 436.5

Expressions of interest . . . . . . . . . . . . . 900.0 —

Minimum leasing. . . . . . . . . . . . . . . . . 300.0 — 400.0

DOI initial leasing level range:

From these formulas . . . . . . . . . . . . 300.0 — 1,700.0

From 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 concern

AVF — alluvial valley floor

BIA – Bureau of Indian Affairs

BLM – Bureau of Land Management

BOM – Bureau of Mines

Btu – British thermal unit

CEQ –Council on Environmental Quality

CERT –Council of Energy Resource Tribes

CFR – Code of Federal Regulations

DOE – Department of Energy

DOI – Department of the Interior

EA — environmental assessment

EIS — environmental impact statement

EMARS – Energy Minerals Activity Recommendation System

F&WS – Fish and Wildlife Service

FCLAA – Federal Coal Leasing Amendments Act

of 1976

FLPMA — Federal Land Policy and Management

Act of 1976

LMU – logical mining unit

MFP – Management Framework Plan

MLTF –Mineral Lease Task Force (Utah)

MMS — Minerals Management Service

NEPA – National Environmental Policy Act of

1969

NO x – nitrogen oxide

NRDC – Natural Resources Defense Council

OSM – Office of Surface Mining

OTA – Office of Technology Assessment

PRLA – Preference Right Lease Application

RCT – Regional Coal Team

RMP – Resource Management Plan

SID – Secretarial Issue Document

SMCRA – Surface Mining Control and

Reclamation Act of 1977

so2 — sulfur dioxide

SSA — site specific analysis

TSP — total suspended particulate

usc – United States Code

USFS – United States Forest Service

USGS – United States Geological Survey

WSA — wilderness study area

Glossary

Activity planning: Planning for the development or

use of specific resources on public domain lands

(e.g., for a coal lease sale).

Alluvial valley floor: Those stream valleys located

west of the 100th Meridian which: 1 ) are underlain

by unconsolidated gravel, sand, silt, and clay; 2)

have a stream flowing through them; 3) have a

generally flat valley floor topographic surface; and

4) are agriculturally important. The relative importance of these valleys is a function of the water supplies available in the specific valley area. The agricultural activities generally include irrigated or

subirrigated hay lands, developed pasture lands,

critically important grazing areas, or lands that

could be developed for any of these purposes.

Areas of critical environmental concern: Areas within

the public lands where special management attention is required (when such areas are developed

or used, or where no development is required) to

protect, and prevent irreparable damage to, important historic, cultural, or scenic values, fish and

wildlife resources or other natural systems or processes, or to protect life and safety from natural

hazards.

Aquifer: A subsurface zone that yields economically

important amounts of water to wells; a water-bearing stratum or permeable rock, sand, or gravel.

British thermal unit: The quantity of heat energy required to raise the temperature of 1 lb of water 1“F

at or near its point of maximum density.

Bypass coal: An isolated coal deposit that cannot, for

the foreseeable future, be mined economically and

in an environmentally sound manner either separately or as part of any mining operation other

than that of the applicant for either an emergency

lease or a lease modification.

Certificate of bidding rights: A right granted by the

Secretary of the Interior to apply the fair market

value of a relinquished coal or other mineral lease,

or right to a preference right lease, as a credit

against the bonus bid or bids on a competitive lease

acquired at a lease sale, or as a credit against the

payment required for a coal lease modification.

Continuous operation: Requirement that a Federal

lease must produce at least an annual average of

one percent of logical mining unit reserves after

diligent development has been achieved.

Development potential: The prospects for a lease or

lease block being developed and mined within the

next decade, taking into consideration the reserves,

mining conditions, geographic location, status of

adjacent properties, surface resource values, environmental impacts, potential markets, transportation availability, and community infrastructure.

148
Appendix C—Acronyms and Glossary ● 149

Diligent development: Actual production of commercial quantities of coal from a Federal lease or the

logical mining unit of which the lease is a part within 10 years after the lease is issued.

Land use planning: Development of a multiple resource use management strategy for the administration of public lands through identification of all

potential land and resource uses and of opportunities for the development of particular resources

based on their relative values.

Management Framework Plan: A land use plan prepared prior to passage of the Federal Land Policy

and Management Act of 1976.

Mine plan: A detailed description of the operator’s

proposed method, rate, and sequence of mining,

environmental protection measures, and reclamation strategies for a coal mine with Federal leases

submitted to the Office of Surface Mining or State

regulatory authority pursuant to the Surface Mining

Control and Reclamation Act of 1977.

Multiple use: Management of the public lands and

their various resource values so that they are utilized in the combination that will best meet the

present and future needs of the American people;

making the most judicious use of the land for some

or all of these resources or related services over

areas large enough to provide sufficient latitude for

periodic adjustments in use to conform to changing

needs and conditions; the use of some land for less

than all of the resources; a combination of balanced

and diverse resource uses that takes into account

the long-term needs of future generations for renewable and nonrenewable resources, including,

but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural

scenic, scientific and historical values; and harmonious and coordinated management of the various

resources without permanent impairment of the

productivity of the land and the quality of the environment, with consideration being given to the

relative values of the resources and not necessarily

to the combination of uses that will give the greatest economic return or the greatest unit output.

Preference right lease application: An application for

a noncompetitive coal lease issued to the holder

of a prospecting permit who discovers coal in commercial quantities on the land for which the permit

was issued.

Resource Management Plan: A land use plan as

prescribed by the Federal Land Policy and Management Act of 1976.

Split estate: Land in which the ownership of the surface is held by persons, including governmental

bodies, other than the Federal Government, and

the ownership of underlying coal is, in whole or

in part, reserved to the Federal Government.

Threshold levels: Specific defined levels of resource

use, production or development which are established as maximum or minimum constraints in the

resource management plan. Threshold levels are

usually established to ensure that the plan does not

permit an unacceptable level of cumulative impacts.

Index

Burns Creek tract, 79, 80

Colorado, 73, 93

Commission on Fair Market Value, 63

Congress:

House Appropriations Committee, 4, 11

Senate Appropriations Committee, 4, 11

Council of Energy Resource Tribes, 117

Council on Environmental Quality (CEQ), 4, 78, 79, 93

Department of Energy (DOE), 59, 62

Department 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, 20

Fish and Wildlife Service, 84, 93, 114

Geological Survey, 67, 72, 88

National park Service, 93

Office of Surface Mining 45, 57, 84

Dunn Center tract, 64, 65, 84

Electric Power Research Institute, 26

environmental 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, 33-51

coal leasing program, 33-46

activity planning and lease sales, 44-45

Iand use planning, 34-44

coal development screen, 40

lands for mining, acceptability of, 40

20 unsuitability criteria, 41

multiple resource use screen, 42

surface owner preference screen, 42

post-leasing, 45

environmental protection, 50

preference right lease applications, 46-50

findings and policy options:

adequacy of Federal coal leasing program, 11

adequacy of pre-sale data and analyses, 13

characteristics that are incompatible with coal mining,

16

cumulative environmental effects, 19

mitigating environmental concerns, 20

comprehensive area planning, 25

data base improvement, 26

decentralize decisionmaking authority, 22

guidelines and standards for assessing data base, 27

policies and procedures for environmental lease exchanges, 28

policies and procedures for leasing on split estate

and checkerboard lands, 28

public participation, 24

reduce lease rates, 22

summary of policy goals and options, 23

uniform procedures for environmental evaluation of

PRLAs, 28

Forest Land and Resource Management Plans, 13

GeneraI Accounting Office, 44

legislation:

Antiquities Act of 1906, 50

Archaeological and Historical Preservation Act of

1974, 50

Archaeological Salvage Act, 50

Bald Eagle Protection Act of 1969, 50

Clean Air Act, 3, 5, 33, 50, 90

Clean Water Act, 3, 5, 33, 50

Endangered Species Act, 40, 50

Federal Coal Leasing Amendments Act of 1976, 3, 12,

33, 41, 43, 46, 70, 93, 110, 114, 117

Federal Land Policy Management Act of 1976, 3, 12,

33, 41, 43, 70, 93, 114, 117

Fish and Wildlife Coordination Act of 1934, 50

Historic Preservation Act of 1966, 50

Interior and Related Agencies Appropriations Bill,

1984, 4

Migratory Bird Treaty Act of 1918, 51

Mineral Leasing Act of 1920, 3, 46, 47

Multiple Use-Sustained Yield Act of 1960, 51

National Environmental Policy Act, 3, 4, 5, 20, 33, 43,

50, 78, 93, 110, 114

National Forest Management Act, 13, 75

Noise Control Act of 1972, 51

Resource Conservation and Recovery Act, 51

Safe Drinking Water Act of 1977, 51

Soil and Water Resources Conservation Act of 1977,

51

Surface Mining Control and Reclamation Act of 1977,

4, 18, 53, 41, 45, 50, 69, 81, 87, 91, 93, 97

Wild and Scenic Rivers Act, 51

Wilderness Act of 1964, 51

logical mining units, (LMUs), 3

Manti-LaSal National Forest, 75, 76

Management Framework Plans (MFPs), 25, 56, 75, 94,

96

Minerals Management Service, 67

Montana, 77, 124

National Coal Association, 62

National Coal Model, 61, 62

National Continental Divide Scenic Trail, 82

National Register, 42, 97

National Resources Defense Council, 91

National Resources Defense Council v. Berklund, 47

Natural Resources Defense Council v. Burford, 68

National Wildlife Federation v. Burford, 68

New Mexico, 90, 96, 98

153
154 . Environmental Protection in the Federal Coal Leasing Program

North Dakota, 77, 124

Northern Cheyenne Tribe v. Watt, 68

planning and environmental assessment, 55-135

coal exchanges, 130135

major issues, 131

types of, 131

data and analysis, 68-80

adequacy of, 74

land use planning, 74

policy implications, 78

sources of data, 69

tiered process, 68

deferral of decisionmaking, 105

environmental implications of leasing rates, 67-68

environmental issues of Indian Tribes, 117-124

Fort Union Coal Region, 119

Green River-Hams Fork Region, 122

Powder River Coal Region, 120

San Juan River Coal Region, 122

lease sale schedules, 64-67

leasing levels, 60

contracting rate, 62

expressions of interest, 62

high leasing levels, effects of, 63

inventory method, 62

methodology, 61

minimum leasing, 63

past sales, 63

process, 60

production method, 62

leasing on split estate and checkerboard lands,

124-129

leasing program, 55-59

administration, 56

implementation, 58

public participation, 59

stability and predictability, 55

economic risk, 57

environmental risk, 57

mitigation requirements, 91-105

origins of, 93

activity planning, 96

land use planning, 94

mine plan review, 97

Secretarial issue Document, 97

reasons for and types of, 97

detailing techniques, 101

raising red flags, 100

resolving conflicts, 100

resolving data inadequacies, 98

role of, 93

public participation, 114-117

regional coal teams, 110114

actions by, 112

forum for public participation, 113

role of BLM, 113

task groups, 112

regional leasing rates, 59-68

unsuitability criteria, 81-91

application, 81

expansion, 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, 97

Sierra 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, 114

Surface, Environment, and Mining (SEAM), 74

U.S. Supreme Court, 3

Utah 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, 127

Green River-Hams Fork, 5, 6, 17, 18, 20, 66, 87, 89,

92, 98, 100, 101, 109, 122, 124, 127

Powder River, 5, 6, 17, 18, 19, 20, 59, 64, 66, 74, 77,

83, 95, 97, 98, 108, 120, 124, 127

San 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

0