Sage grouse become a factor in water right permitting

Hulett — Individuals and companies looking to develop water within core sage grouse areas will soon see an additional step in the permitting process at the Wyoming State Engineer’s Office (SEO).
    Sage grouse will be considered as a result of Governor Dave Freudenthal’s August 2008 executive order aimed at ensuring development in core sage grouse areas isn’t harmful to the bird. It’s one part of a larger effort to ensure the Wyoming population of the bird isn’t listed as threatened or endangered under the Endangered Species Act.
    Deputy State Engineer Harry LaBonde told members of the Wyoming Legislature’s Joint Agriculture, State and Public Lands and Water Resources Committee, meeting in Hulett mid-September, that two aspects of Governor Freudenthal’s order were central in developing the SEO’s new policy. First, said LaBonde, was the instruction that, “New development or land uses within Core Population Areas should be authorized or conducted only when it can be demonstrated by the state agency that the activity will not cause declines in Greater Sage-Grouse populations.”
    Second, he said, was, “State agencies should use a non-regulatory approach to influence management alternatives within Core Population Areas, to the greatest extent possible. Management alternatives should reflect unique localized conditions, including soils, vegetation, development type, climate and other local realities.”
    “We’ll have to demonstrate that we’re not going to harm the population,” said LaBonde of the SEO’s response to the directives. Beginning sometime Fall 2009, applications arriving at the State Engineer’s Office will first be assessed to determine if they’re within the boundaries of a sage grouse core area. The assessment will apply to all applications whether they’re for a water well, coal bed methane activity or a stock pond. LaBonde said an exact date for implementing the policy hasn’t yet been set.
    “If they fall within the core population area,” said LaBonde of proposed projects, “we looked at what we felt were reasonable options the applicant may want to select.” That discussion, he said, resulted in five options:
1.    Relocate the facility outside of the core population area. It’s an approach that LaBonde said is the easiest as it relates to those projects close to the boundary.
2.    In an option geared toward the oil and gas industry, LaBonde said a biological assessment can be submitted detailing how, under full development, the project will not affect sage grouse populations. If an applicant chooses this alternative, LaBonde said his agency would ask the Game and Fish to corroborate the findings in the assessment.
3.    Development within a set of parameters geared toward protecting the grouse is another option. Similar to BLM and Office of State Lands and Investments stipulations, LaBonde said applicants would agree not to develop the project between March 15 and June 30 and not within .6 miles of an occupied lek.
4.    Prove the project lies within an already disturbed area such as a farmstead or near an industrial site.
5.    For water development projects with minimal operation and maintenance, such as stock tanks and stock ponds, agree to a reduced set of conditions. Such developments can’t be made within .25 miles of an active lek. The agency recommends escape ramps on stock tank projects. Again, projects can’t be completed between the March 15 and June 30 timeframe.
    LaBonde doesn’t foresee the added step having too much of an impact on the permitting process timeline. With the grouse core areas within the agency’s mapping system, he said that review is quick. In the event the project is within a core area, a letter would then go out to the applicant for follow-up measures.
    “I have some real concern about whether you or the Governor have the authority to deny permits based on an executive order,” said Representative Matt Teeters in response to LaBonde’s presentation. “Has anybody questioned that or talked to the Attorney General. You’re basically writing law.”
    “Our intent is not to limit development within core areas, but to educate the folks working in those areas and work with them to mitigate the impacts,” said LaBonde. “These five options are not the limit. An applicant can propose other types of mitigation.”
    LaBonde said the fifth option resulted from discussions with the agricultural organizations. Representative Kit Jennings (R-Casper) said water development resulting from oil and gas projects could prove equally beneficial to wildlife, including grouse, and that similar concessions should be made to the mineral industry.
    The SEO has registered wells since the 1940s with 190,000 permitted wells currently within its database. Of those, LaBonde said 13,000 or 6.8 percent are within core sage grouse areas.
     Jennifer Womack is managing editor of the Wyoming Livestock Roundup. Send comments on this article to roundup@wylr.net.