December 23, 2015
Tamara Whittington, Superintendent
Big Cypress National Preserve
33100 Tamiami Trail East
Ochopee, Florida 34141-1000.
Subject: Burnett Oil Company Nobles Grade 3-D Seismic Survey Environmental Assessment
Dear Superintendent Whittington:
I am writing to you on behalf of the Coalition to Protect America’s National Parks (Coalition), a non-profit organization comprised of over 1,100 members; most are former and retired National Park Service (NPS) employees. Collectively, we have over 30,000 years of experience working in and managing America’s national parks. The Coalition studies, educates, speaks, and acts for the preservation of America’s National Park System. This letter provides comments on the Environmental Assessment (EA) analyzing the environmental impacts of an oil and gas seismic survey proposed by Burnett Oil Company, Inc. (BOCI) at Big Cypress National Preserve (BICY). The EA is a follow-up document to the Nobles 3-D Plan of Operations (POP) and analyzes the impacts of three alternatives:
- Alternative 1: No Action – Continue Current Management. Under alternative 1 no survey would be conducted.
- Alternative 2: Proposed Action – Seismic Survey Using Vibroseis Buggies. Under alternative 2 a 110± square mile area would be surveyed using special off-road vehicles with attached mobile plates which would be placed against the ground, vibrated, and then moved on to the next location. The vibrations, or seismic acoustical signals, would be detected by an array of receivers to allow mapping of the subsurface geology.
- Alternative 3: Seismic Survey Using Explosive Charges. Under alternative 3 the same 110± square mile area would be surveyed as in Alternative 2, but the acoustic signals would be produced by underground explosive charges instead of vibroseis buggies.
We have a number of concerns about the proposed seismic survey operation. Our concerns are related to the foreseeable adverse impacts to wetlands, soils, water quality, hydrology, and wilderness values at BICY. The EA downplays these effects primarily by relying on the vibroseis technology, which the EA claims will not cause significant impacts. NPS should be aware that use of similar equipment has not prevented damage in other NPS parks/wetland areas. In our judgment, the analysis of potential impacts in the EA is cursory at best, and sometimes careless in its lack of detail and candor. At a minimum, there should be more detailed and objective information about the potential effects to the hydrology, wetlands, soils, water quality, and wilderness values that could occur. In general, it does not appear that NPS has taken the required “hard look” at the proposed action as required under the National Environmental Policy Act (NEPA). Due to the potential impacts, NPS should prepare an environmental impact statement (EIS) that more effectively describes and evaluates the potential impacts, both potential and reasonably foreseeable.
We offer the following comments and concerns about specific sections of the EA:
CHAPTER 1: PURPOSE AND NEED FOR ACTION
Applicable Laws, Regulations, and Policies: “Oil, Gas, and Mineral Rights” section, page 5, states, in part: “The NPS is authorized to promulgate “rules and regulations governing the exploration for and development and production of non-Federal interests in oil and gas located within the boundaries of the Big Cypress National Preserve and Addition.” Id. § 698m-4(a). The NPS has not yet done so, which means that the general regulations at 36 CFR Part 9, Subpart B still apply.”
Comment: The NPS is in the process of revising its 9B oil and gas regulations; yet there is no mention of this in the EA under “Other Federal Laws and Executive Orders” on pp. 7-9. The comment period on the 9B proposed rule closes December 28, 2015. The proposed regulations, while not prescriptive, would probably not allow the proposed seismic survey operation as it doesn’t appear to use the technologically feasible, least damaging method and likely would cause significant impact to wetlands, soils, and surface hydrology. While the “technologically feasible, least damaging” standard is stated more clearly in the proposed rule, the current NPS 9B regulations impose essentially the same approval standards, which the proposed operation does not appear to meet.
Citation of Court Case Under Appeal: “Big Cypress National Preserve Establishment Act (1974) and Addition Act (1988)” section, p. 6, states, in part: “The U.S. District Court has ruled that “[t]he conservation mandate of the NPS Establishment Act [Organic Act] was tweaked by the subsequent Preserve Act and the Addition Act, both of which required multiple use management … striking a balance among the many competing uses to which land can be put.” NPCA v. U.S. Dept of the Interior, Case No. 2:11-cv-578-FtM-29CM (M.D. Fla. 2014).”
Comment: The Coalition is quite familiar with the case, as we have filed an amicus curiae brief with the U.S. Circuit Court of Appeals for the 11th Circuit regarding the district court’s statement in its decision that is quoted above. First, for NPS to cite an unresolved court case in an attempt to explain how BICY is meant to be managed is misleading, if not disingenuous. Many knowledgeable NPS supporters, including the Coalition, would argue that the court’s statements that the park’s enabling legislation “tweaked” the NPS Organic Act and that the respective enabling legislations required “multiple use management” is not only legally incorrect, but it is also inconsistent with NPS’s longstanding interpretation of its statutory mandate, as described at NPS Management Policies 2006, Sections 1.4.1 and 1.4.3. Furthermore, in the answering brief for the federal defendants-appellees filed on November 20, 2015, the U.S. Department of Justice (DOJ) attorneys representing the U.S. Department of the Interior (DOI) in the case have essentially agreed with the Coalition’s argument. The government’s brief states, in part:
“In the view of the federal appellees, the district court’s use of the term “multiple use management” was infelicitous and is susceptible to misinterpretation. “Multiple use management” is generally understood to be a term of art under the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. § 1701 et seq. The court’s citation to Norton v. S. Utah Wilderness Alliance suggests that the court used the term “multiple use management” in the FLPMA sense. If so, the court erred. FLPMA governs the management of public lands administered by the Secretary of the Interior through the Bureau of Land Management, not the Secretary’s management of the National Park System through NPS. Id. §1702(e). Moreover, NPS generally does not interpret the enabling legislation for an individual unit of the National Park System to alter (“tweak”) the Organic Act’s conservation mandate in 16 U.S.C. §1. See 2006 Management Policies 1.4.1.”
We urge NPS to remove the reference in the EA to the aforementioned district court’s statement and to refrain from referring to that statement in the future when preparing management documents for BICY.
Wilderness Stewardship: As described on p. 16, there are 71,263 acres in the Addition and 188,323 acres within the original Preserve that are eligible for proposed wilderness designation. As you know, NPS Management Policies 2006, Chapter 6 Wilderness Preservation and Management – Section 6.3.1 states, in part: “The National Park Service will take no action that would diminish the wilderness eligibility of an area possessing wilderness characteristics until the legislative process of wilderness designation has been completed. Until that time, management decisions will be made in expectation of eventual wilderness designation…This policy also applies to potential wilderness, requiring it to be managed as wilderness to the extent that existing nonconforming conditions allow.” This policy is quite clear – NPS must manage as wilderness the 259,586 acres it has recently determined to be eligible as wilderness. We are concerned that a number of aspects of the proposed action are incompatible with NPS wilderness stewardship policies and will describe these concerns later in our comments.
CHAPTER 2: ALTERNATIVES
General comment: In general, there is a lack of detail and quantification of the potential amount of off-trail vehicle use that would occur under either Alternative 2 or 3, which makes it impossible to prepare an accurate and effective impact analysis for either alternative in Chapter 4. We find the superficiality of the information provided in the EA itself to be quite puzzling. We note that “Appendix B: Wetlands Statement of Findings” (WSF) has very detailed and specific information that quantifies potential resource impacts and also analyzes possible avoidance and mitigation measures. For example, p. 23 of the WSF states, in part: “The theoretical distance that vehicles could drive to access the unmodified length of source points, receiver lines, and staging areas is 1,681± miles. Not all source and receiver lines will be accessible for survey, and the majority of the 1,171± linear miles of receiver lines will be accessed on foot. There will be two sets of three vehicles driving through the wetlands to access the source points. Assuming the entirety of the source lines is accessible, there is a potential for rutting, soil compaction, and vegetation destruction for a total two-track distance of 510± miles.” We wonder why NPS has not incorporated this same level of detail, quantification, and analysis into Chapters 2 and 4 of the EA itself.
Alternative 2 Description: Page 20 identifies Alternative 2 as the proposed action and preferred alternative. Alternative 2’s proposed survey using vibroseis trucks is described and mapped in great detail in the EA. It is clear from that description that Alternative 2 would involve an extensive level of large vehicle use across 110± square miles of BICY that would occur mostly off of and away from the existing designated ORV trails. Figure 2-6, p. 26, shows source lines laid out in an “Unmodified standard brick-grid” and Figure 2-7, p. 27, shows source lines laid out in a “Modified standard brick-grid.” Despite this illustration of the proposed spacing of grid lines, there is no quantification in the description about how many linear feet or miles of new vehicle tracks would occur off the established trails under the proposed action. Absent such information, it will not be possible for NPS to prepare an accurate analysis of the potential impacts of the unquantified amount of off-trail vibroseis truck use in Chapter 4.
Alternative 3 Description: The description of “Seismic Survey Using Explosive Charges” occurs on pp. 28-30 of the EA. The description of this alternative in the EA is vague and lacking in many details; however, we believe a well-designed 3D seismic survey using explosive charges could be significantly less damaging to park resources than the actions described in Alternative 2. A properly designed Alternative 3 would limit vehicle use to existing roads and trails and use helicopter supported drilling and “walk-across” methods in off-road areas, thus eliminating the inevitable and substantial impact that would result from extensive off-trail driving by vibroseis vehicles that is proposed in Alternative 2. A similar survey was conducted in BICY on a smaller scale in 1999 by Calumet Company. That survey was a combination of heli-portable off-road activities and vehicle operations only on existing roads/trails. The survey was closely monitored by NPS staff on the ground, including park and Geologic Resources Division (GRD) staff and did, in fact, result in minimal impacts to park resources. Based on past experience, we believe that Alternative 3 may be a better option than Alternative 2; however, it is not possible to make such a determination without better definition and description of the proposed methods and operations. What the EA is sorely lacking in Alternative 3 is an adequate description of the drilling method to be used; a description of the degree to which NPS would limit vehicular use and require helicopter supported foot travel to drill shot holes and collect data in off-trail locations; and a realistic quantification of the amount of off-trail vehicle use that would be allowed under this alternative. Also absent is a description of what drilling equipment would be used; how were the explosive depth and shot charge size determined; how many drill holes would be needed; and how many of them would be located away from designated trails? Lacking sufficient detail in the description of Alternative 3, it is impossible in Chapter 4 to quantify impacts or draw any reasonable conclusions about the relative impacts of the two action alternatives.
Environmentally Preferable Alternative: NPS has not identified the environmentally preferable alternative in the EA. The NPS NEPA Handbook 2015, Section 4.3 D. states: “The environmentally preferable alternative is the alternative developed and analyzed during the NEPA process that causes the least damage to the biological and physical environment and best protects, preserves, and enhances historical, cultural, and natural resources (46.30). An environmentally preferable alternative must be identified in a ROD and may be identified in EAs, FONSIs, and draft and final EISs (1505.2(b); 46.450).” As indicated above, NPS is not required to identify an environmentally preferable alternative in an EA and has apparently chosen not to do so in this EA. However, in order to improve the public’s understanding of the NPS’s decision making process, we believe that NPS should explain why it has not identified an environmentally preferable alternative, likely the no action alternative.
Mitigation and Minimization: In the “Minimization and Mitigation Measures” listed on pp. 33-37, there is no mention of any measures to avoid, minimize, or mitigate impacts to wilderness during the implementation of the survey. Chapter 4 describes a variety of potential impacts to wilderness values at BICY. Given that NPS is required by its own policies to manage the eligible wilderness at BICY as if it were wilderness, we urge that NPS describe at least a few practical measures that would minimize or mitigate some of those impacts.
CHAPTER 3: AFFECTED ENVIRONMENT
Wilderness Resources in the Preserve: Page 83, Figure 3-18, “Wilderness Areas within the Preserve,” illustrates that a considerable, but unquantified, amount of “Eligible Wilderness” lies within the 110± square mile project area. Given the 2011 wilderness study for the Addition and the 2015 wilderness eligibility assessment for the original Preserve are fairly recent and both processes included detailed geospatial mapping, we wonder why NPS has not identified the number of acres of eligible wilderness that would be directly or indirectly impacted by the proposed seismic survey. Doing so would involve a straightforward GIS mapping process. Lacking specific information in Chapter 3 regarding how many acres of eligible wilderness occur within the project area makes it nearly impossible for NPS to prepare a meaningful analysis or comparison of the relative wilderness impacts of Alternatives 2 and 3 in Chapter 4.
CHAPTER 4: ENVIRONMENTAL CONSEQUENCES
Insufficient Characterization of Impacts to Meet NEPA Requirements: On p. 6 the EA states, “[NPS] Director’s Order 12 requires that impacts to the Preserve’s resources be analyzed in terms of their context, duration, and intensity.” In Chapter 4, p. 84, the EA states again, “The analysis of impacts follows CEQ guidelines and Director’s Order 12 procedures. Potential impacts of all alternatives are described in terms of type, context, duration, and intensity.” However, throughout Chapter 4 the lack of impact “thresholds” or other systematic definition(s) of “intensity” renders the NPS characterization of impacts cursory at best and significantly hinders a meaningful comparison of impacts between the alternatives. Definitions that characterize impact thresholds (or intensity) are commonly included in NPS-prepared NEPA documents, but are inexplicably missing from the BICY EA. Description of such impact thresholds would provide the reader with an idea of the intensity of a given impact on a specific impact topic. The impact threshold is typically determined by comparing the effect to a relevant standard based on applicable or relevant and appropriate regulations or guidance, scientific literature and research, or best professional judgment. Because definitions of intensity may vary by impact topic, intensity definitions are typically provided separately for each impact topic analyzed in a NEPA document. For example, intensity definitions could be provided for each impact topic to characterize “negligible,” “minor,” “moderate” and “major” impacts. In this EA NPS has apparently concluded that most of the foreseeable impacts to a variety of resources are “short-term.” However, the relative intensity of those impacts is generally not defined or characterized. In a NEPA impact analysis, for example, there can be a significant difference between a “short-term, minor” impact and a “short-term, major” impact; but NPS has not provided sufficient information in this EA to identify or support such a distinction.
Impact Analyses for Alternative 2: Under Alternative 2, BOCI would conduct seismic exploration activities using vibroseis “buggies” within the 110± square mile survey area. As reported in the EA, there has been no prior use of such vehicles at BICY. As described at several places in the EA, during a limited field test of the vibroseis equipment at BICY “the test vehicle got stuck and had to be extricated by other equipment” (e.g., Chapter 4, p. 88). Granted, this is a limited sample size; but it certainly does not support the NPS conclusion that extensive use of the vehicles for the proposed survey would be relatively low impact, causing primarily “short-term” impacts as asserted in the EA. Rather, the field test results clearly indicates that extensive use of vibroseis trucks off-trail at BICY, an area renowned for its expansive wetlands, will likely result in numerous incidents of trucks getting stuck and having to be “extricated.” Potential impacts of the inevitable extrication(s) are not described. Stating the obvious, this will likely result in more extensive resource impacts than is acknowledged in the EA. We strongly recommend that, before making a decision to authorize the survey using vibroseis vehicles, NPS should require additional field testing of vibroseis trucks under varying field conditions in order to determine what operating conditions could reduce problems and what limitations and requirements may be needed to minimize adverse impacts during the survey. The impact analysis for Alternative 2 fails to provide an accurate, objective characterization of the potential impacts or a valid basis for comparing relative impacts between the action alternatives.
Wilderness Impact Analysis: The analysis on pp. 99-101 suffers from the same deficiencies described above for the analyses of Alternatives 2 and 3. The lack of quantification of the number of eligible wilderness acres that might be disturbed and the lack of meaningful characterization of the intensity of those disturbances precludes an effective analysis and the accurate comparison of the relative impacts likely to be caused by Alternatives 2 and 3. Given the level of wilderness planning at BICY in recent years, NPS should have been able to use existing information to provide a description of potential wilderness impacts that is similar in detail and specificity to the impact analysis contained in the Wetlands Statement of Findings. Also, on pp. 100-101 NPS provides a “Wilderness Minimum Requirement Determination” that briefly compares the potential wilderness impacts of Alternatives 2 and 3. However, given the concerns described above, the determination appears to be pre-determined, rather than a meaningful and well-reasoned finding based on thoughtful analysis. In addition, given the many controversies related to past NPS wilderness stewardship decisions at BICY, we are concerned that NPS is short-changing the protection of wilderness values by inappropriately interpreting and applying NPS wilderness stewardship policies. We provide a few examples of our policy concerns below:
- NPS Management Policies 2006 MP2006, Section 3.5 Minimum Requirement, states in part: “When determining minimum requirements, the potential disruption of wilderness character and resources will be considered before, and given significantly more weight than, economic efficiency and convenience. If a compromise of wilderness resources or character is unavoidable, only those actions that preserve wilderness character and/or have localized, short-term adverse impacts will be acceptable.”
Comment: NPS has failed to make a convincing case that the extensive off-trail use of vibroseis trucks would be less impactful to wilderness than a carefully planned and executed seismic survey using explosives and heli-supported walk-across access. As a result, it appears that the preference given to use of vibroseis trucks to conduct the survey is based primarily on the economic efficiency and convenience it provides to Burnett Oil, which would be at odds with the priorities stated in Section 6.3.5. Since the policy identifies “economic efficiency” as a secondary decision factor, it would be helpful if NPS included survey cost information for Alternatives 2 and 3.
- Director’s Order # 41: Wilderness Stewardship – Section 6.4 Minimum Requirements states, in part: “…whenever an environmental assessment or environmental impact statement is prepared for work projects within wilderness, a MRA should be included as part of the document. Under no circumstances may a MRA be used to allow permanent roads or commercial enterprise within wilderness. The use of motorized equipment and the establishment of management facilities are specifically prohibited when other reasonable alternatives are available.”
Comment: Based on BOCI’s website (http://www.burnettoil.com/) it is clear that BOCI is, in fact, a “commercial enterprise” by any definition of that term. We believe that the rationale for not following this policy should be explained.
- NPS Management Polices 2006, Section 6.4.9 Mineral Development states, in part: “Motorized use in wilderness is allowed only with an approved plan of operations on valid mineral claims and where there is no reasonable alternative. Motorized use for access can occur only on existing or approved roads. There will be no new roads or improvement of existing roads unless documented as being necessary for resource protection.”
Comment: As described in Alternative 2, NPS would allow extensive “motorized use” of vibroseis vehicles off of existing roads and designated ORV trails. We believe that the rationale for not following this policy should be explained.
LIST OF AGENCIES AND PERSONS CONSULTED
There appears to be reasons for concern about how and when the EA was written. For example, the difference in the quality of information and analysis between the Wetlands Statement of Findings and the EA itself raises questions about who (or what entity) prepared each of those documents. The inclusion in the EA of the reference on p. 6 to the district court decision, which is currently under appeal, raises doubts about when the EA was last reviewed. We have learned that the EA was initially prepared by a contractor, Passarella & Associates, for BOCI. Then, after some back and forth with Passarella, the NPS took over the EA process and adapted/adopted the document prior to release. However, there is no mention of contractor involvement anywhere in the EA. The “List of Agencies and Persons Consulted” on p. 102 does not mention any contractor involvement at all. Curiously, it lists former BICY Superintendent Pedro Ramos as the primary NPS point of contact for review of the POP, the revised POP, the revised EA, the last revised POP, and the last revised EA, all with 2014 dates. Of course, we know that Superintendent Ramos transferred to Everglades National Park almost a year ago. Given that the EA was not released for public comment until November 2015, does this mean that nobody at NPS or the U.S. Department of the Interior Solicitor’s Office reviewed and updated the document since Mr. Ramos left the park? Could that explain the inclusion of the aforementioned reference on p. 6? Given these concerns, we urge NPS to be more transparent in identifying who was involved in the preparation of the EA and strongly recommend that NPS follow the example of many other NPS NEPA documents that include a “list of preparers and consultants” at the end of Chapter 5, not just a list that equates to “points of contact.”
While legislation and property law clearly provides for the development of non-federal oil and gas rights at BICY, the NPS has the legal authority and legal obligation to manage such development in a manner that is consistent with the NPS Organic Act and related NPS Management Policies. NPS must ensure that all non-federal oil and gas operations at BICY, including the proposed seismic survey, are conducted in a manner that avoids or minimizes, to the greatest possible extent, adverse effects on natural and cultural resources and visitor uses and experiences. In light of the many deficiencies described above, the EA provides insufficient information and analyses to take the required “hard look” at the potential environmental impacts of the proposed seismic survey. A more effective and detailed analysis is needed to define and lead to the best possible decision that results in the lease harm to park resources. Due to the scope of proposed operations, we urge that NPS to prepare a full environmental impact statement (EIS). In closing, we appreciate the opportunity to comment on this important project.
Chair, Coalition to Protect America’s National Parks