Court throws book at BLM over fracking Chaco

The agency failed to consider water use.

 

When locals in northwestern New Mexico’s Chaco region give directions to places on the maze of roads out in the high desert here, they often refer to “the cornfield,” as in: “Turn left at the cornfield.” While that wouldn’t be much help in a corn-covered place like Iowa, a single field can serve as a landmark here. There are very few since rainfall is scant, irrigation ditches don’t exist, and farming is of the dryland variety.

So it’s disconcerting to see truck after truck pass that same cornfield loaded down with water, bound for newly drilled oil wells that will be hydraulically fractured. Over a few days, the frackers shoot 1 million or more gallons of water — at least twice as much as that cornfield needs in a year — mixed with sand and chemicals into each of the hundreds of horizontal wells here. When the water bubbles back up, it is tainted with hydrocarbons, fracking chemicals and brine.

Navajo Nation Council Delegate Daniel Tso overlooks a well pad close to his family's land near Chaco, New Mexico. The BLM has issued 40 new drilling permits, despite losing a lawsuit centered on previous permits.
Nina Riggio

This water gluttony now has the industry, and the federal agency charged with overseeing it, in trouble. In May, the 10th Circuit Court of Appeals ruled that the Bureau of Land Management had failed to consider cumulative water use when it allowed drilling in the Chaco region, therefore violating federal environmental law. Yet the agency continues to issue new drilling permits, in defiance of the court’s decision.

The court’s ruling concerns the BLM’s Farmington Field Office’s 2003 resource management plan for the San Juan Basin, a 10,000-square-mile geological bowl replete with natural gas, oil and coal. The plan gave the preliminary go-ahead to 9,942 natural gas wells, drilled vertically, primarily in the northeastern corner of the office’s jurisdiction, far from Chaco Culture National Historic Park.

But several years after the plan came out, “fracking” — the horizontal drilling and multistage hydraulic fracturing used to extract oil and gas from shale formations — arrived in the San Juan Basin. Armed with bigger, shale-busting drill rigs, companies shifted their attention south, toward the oil-bearing Mancos Shale near Chaco Canyon and several Navajo communities. The BLM predicted that 3,960 new horizontal wells would be drilled in coming years, and in 2014, it launched a multi-year process to amend the old plan with regard to the shift in drilling techniques and geographical and geological targets.

Environmentalists and community advocates begged the agency to hold off on issuing any new permits for horizontal drilling until the amendment was complete. But the Farmington office, which has a reputation for kowtowing to industry, paid no heed. BLM officials told me in 2014 that they would keep permitting under the old plan until they hit the 9,942 well limit, with or without an amendment. They’ve already leased out more than 50,000 acres and issued over 500 permits over the last decade. “If they (critics) think it’s illegal,” said David Mankiewicz, assistant field manager of the Farmington office, “then sue us and lose.”

In 2015, four environmental groups, including local nonprofits Diné CARE and the San Juan Citizens Alliance, did just that, alleging that the 2003 plan did not adequately account for the effect the new horizontal wells would have on the cultural resources, land and communities in the Chaco area. They lost in one court, and lost again. Then, last year, the case made it back to the Court of Appeals, which handed down its ruling on May 7. Although the environmentalists lost on two other issues, the court ruled in their favor when it came to water.

Virtually every oil and gas well drilled over the past several decades, whether conventional or not, has been hydraulically fractured. The BLM’s plan took that into account. But the multi-stage hydraulic fracturing conducted in horizontal wells that extend for miles underground requires far more water — upwards of 1 million gallons (enough to fill two Olympic-size pools) compared to just 200,000 gallons for a typical vertical well. Multiply the difference by the number of horizontal wells expected to be drilled in coming years, and the oil companies will end up gulping down some 3 billion gallons of extra water — all water that the BLM failed to consider in its 2003 plan.

The court issued a stern rebuke, concluding that the federal agency “needed to — but did not — consider the cumulative impacts of water resources associated with the 3,960 reasonably foreseeable horizontal Mancos Shale wells.” The permit approvals were therefore “arbitrary and capricious and violated NEPA (National Environmental Policy Act).”

Kathleen Sgamma, president of the Western Energy Alliance, told KJZZ Radio that the ruling’s impact is limited to the 25 permits that were presented in the case, so it only requires the BLM to redo those particular analyses. But the court’s language contradicts her words. The ruling refers to the “cumulative impacts” of all the horizontal wells expected to be drilled, and therefore implies that any permits issued for horizontal wells under the 2003 plan — the update is scheduled to be released sometime this year — also violate federal environmental law.

That apparently isn’t stopping the BLM, however. The Farmington office is moving forward, permitting 40 new wells, 22 miles of pipeline and 6 miles of access road in the Crow Mesa Wildlife Area some 30 miles from Chaco Canyon. It’s as if BLM officials are, once again, daring environmentalists to sue. But this time, given the precedent set in May, the environmentalists are likely to win.

Note: This story has been updated to reflect that the 10th Circuit Court of Appeals ruled that the Bureau of Land Management failed to consider cumulative water use when it allowed drilling in the Chaco region, not 10th District U.S. Court of Appeals.

Jonathan Thompson is a contributing editor at High Country News. He is the author of the new book, River of Lost Souls: The Science, Politics, and Greed Behind the Gold King Mine Disaster.

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