The National Park Service is relying on an environmental assessment to determine the impacts of oil drilling in Big Cypress National Preserve/Kurt Repanshek file
Plans to drill for oil in Big Cypress National Preserve might not require an extensive environmental impact statement to be compiled by the National Park Service, which currently plans to review the proposal via a less intense environmental assessment.
Burnett Oil Co., which sent ponderous, 33-ton vibroseis trucks into the preserve that embraces the Everglades of Florida in 2017 and 2018 in a search for recoverable oil deposits, late last month applied to the state of Florida for requisite clean water permits for drilling, and also has applied for Park Service permits.
"The National Park Service has received an application for new drilling and production operations to access privately-owned oil prospects at Big Cypress National Preserve," preserve Superintendent Thomas Forsyth told the Traveler last week in an email. "NPS is processing the application under NPS non-federal oil and gas rights regulations and conducting a technical review, which includes preparation of an environmental assessment to analyze potential environmental impacts of the proposed action. When the EA is complete, it will be released for public commenting before a final determination is made.”
Under the preserve's 1974 enabling legislation, oil and gas exploration and production is permitted, as the federal government only owns the surface rights to Big Cypress, while the mineral rights are privately owned. However, under that legislation the Interior secretary retained the authority to acquire the mineral rights if their development would be "detrimental to the purposes of the preserve..."
While there was an effort during the administration of George W. Bush to have the federal government buy out the Collier family's mineral rights, that effort failed as Congress refused to fund the $120 million purchase.
Burnett's drilling plans entail construction of two well pads, one along Interstate 75 between Fort Launderdale and Naples and another a bit north of U.S. 41 where Collier, Broward and Miami-Dade counties meet. The company also plans to reduce potential impacts by using directional drilling to avoid the need for additional wellpads. Still, the plans are concerning to outside groups.
"The Miccosukee Tribe is deeply concerned whenever there is a request to potentially disturb and in some instances destroy cultural sites and adversely impact the environment," said Kevin Donaldson, the tribe's director of Real Estate Services and the appointed representative for Tribal Historic Preservation. "The area Burnett Oil is seeking to explore is within Indian Country in Big Cypress National Preserve which is very close to the Miccosukee Federal Reservation. This area is replete with known cultural sites which cannot be impacted. The tribe is looking at this application closely to fully evaluate the request and ensure that Miccosukee interests are protected and preserved for future generations."
Alison Kelly, a lands attorney with the Natural Resources Defense Council, was concerned by the Park Service's choice of an EA to assess potential impacts to the preserve's landscape and rare wildlife and vegetation.
"We do not have a current general management plan/EIS for the preserve. The one here is from 1991," said Kelly. "Therefore, there is no way that the plan analyzes and discloses to the public the impacts with new drilling technologies, like directional or horizontal drilling, which is being proposed by Burnett Oil, much less any well stimulation techniques they may use, such as fracking or acidizing. For contrast, we all complained about the age of the resource management plan in Chaco (Culture National Historical Park in New Mexico), which was from 2003, so imagine a general management plan for a NPS Unit from 1991 analyzing the impacts of oil development on climate change."
When Burnett approached the Obama administration for permits to do exploration, NRDC and others asked for an EIS to be conducted on the proposal. Instead, the Park Service in 2015 settled on 47 mitigation requirements the company must meet, such as reclaiming impacts from the vibroseis vehicles on a daily basis and restoring the disturbed grades back to existing grades, something NRDC and the National Parks Conservation Association maintain weren't done.
"I am certain we will again make the case with the Biden-Harris administration that an EIS is required," she said. "Either for the permit itself, or, in conjunction with a new General Management Plan, since the 'current' one from 1991 is clearly outdated and insufficient.
"As Alison articulated in detail, and from our perspective as well, there is a strong case to be made for why an EIS should be required with this application," said Melissa Abdo, NPCA's Sun Coast regional director.
Superintendent Forsyth did not respond when asked specifically why an EIS was not warranted in this case, which calls for roads of 1.5 miles or more in length across the preserve's marl prairie to reach well pad sites.
At the Coalition to Protect America's National Parks, Mike Murray questioned the legal position the Park Service was putting itself in by opting for an EA over an EIS.
"Is an EA legally sufficient under NEPA for the proposed drilling operations?" asked Murray. "Hard to say what the courts would decide, but such an approach certainly opens NPS up to legal challenge. One could reasonably argue that seismic exploring for oil and gas is less impactful than building access roads and drilling pads to enable drilling operations; and the latter may warrant more detailed analysis of its impacts."
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If you trust the NPS, in Florida, to implement the NEPA in the way it is "supposed" to be implemented in the face of the extreme corruption that runs rampant in Florida, then this ultimately "should" be less of an environmental protection problem and ultimately only a waste of time and money on the part of the NPS and Burnett Oil. One of the reasons that the corrupt rightwing (I guess that's redundant.) so hates the NEPA is that, if the NEPA is implemented and upheld the way the NEPA is "supposed" to be implemented and upheld, the NEPA is self-correcting. So, there are, or at least are "supposed" to be, several corrective mechanisms on this proposal.
First, any attempt by the NPS (in Florida) and Burnett Oil try to improperly tier these proposed activities under the provisions of the 1991 general management plan/EIS for the preserve, under a categorical exclusion, or under some interpretation of the 1974 enabling legislation that claims turning the preserve into an oil patch would not be "detrimental to the purposes of the preserve..." would require a truly delusional and corrupt rightwing review. That's certainly possible given how badly Senator McConnell and the republicans have infected, tainted, and skewed the judiciary; however, the fact that the NPS (in Florida) and Burnett Oil didn't just go that route and have already irretrievably shown their EA card indicates that they aren't sure they have that much corruption in the judiciary lined up, at least not for this caper.
Second, an EA, by itself, doesn't result in an unassailable decision; it can only result in a Finding Of No Significant Impact (FONSI) and there are many ways to challenge a FONSI. You can challenge whether it accurately portrays the "possible" or even "probable" impacts of the action; you can challenge whether the action will be properly implemented in the way it is portrayed in the EA; and you can challenge whether any of the impacts, whether they're direct environmental or secondary societal impacts, will be "detrimental to the purposes of the preserve..." in any significant way. This is a high bar when the standard is not whether the impacts are good or bad, but whether they are significant.
Again, you have to consider whether the NEPA will be implemented in the way it is "supposed" to be implemented in the face of the extreme corruption that runs rampant in Florida and given how badly Senator McConnell and the republicans have infected, tainted, and skewed the judiciary; however, in this case, it appears that Burnett Oil may have already screwed itself with its previous bad behavior. Looking at the unrepaired and potentially unrepairable environmental damage still lingering after Burnett Oil's previous exploration activities in the preserve, there "should" be a case that can be made that any future EA leading to a FONSI may not, based on past evidence, accurately portray the "possible" or even "probable" impacts of Burnett Oil's actions and, based on past evidence, there is no assurance that Burnett Oil's actions will even be properly implemented in the way portrayed in an EA. Again, as the article indicates, the NPS (in Florida) and Burnett Oil agreed, in 2015, "on 47 mitigation requirements" that Burnett Oil was "supposed" to have met, such as reclaiming impacts from the vibroseis vehicles on a daily basis and restoring the disturbed grades back to existing grades, in conducting their previous exploration efforts, mitigation that "NRDC and the National Parks Conservation Association maintain" wasn't done. And, the Miccosukee Tribe is already raising concerns about secondary societal impacts that could easily be "detrimental to the purposes of the preserve..." in a significant way. Any of these concerns, whether about the violations of the public trust resulting from the past actions of the NPS (in Florida) and Burnett Oil or the growing concerns of the Miccosukee Tribe, can clearly meet the standard for significance and easily support a challenge to a FONSI. The "wild card" here would be the extreme corruption that runs rampant in Florida.
Third, the only unassailable decision under the NEPA is a Record Of Decision (ROD) supported by a judicial finding that the EIS on which that ROD was based was itself truthful and complete and the actions covered by the ROD are themselves legal. If the NPS (in Florida) and Burnett Oil prepare an EA that results in a FONSI that is overturned, then they will simply have wasted the money they spent on that process and their recourse would be to do an EIS. So, if it's clear that an EA will only lead to a FONSI that can be successfully challenged, why would the NPS (in Florida) and Burnett Oil waste the money? Why not just go straight to an EIS? I suspect Burnett Oil's efforts are actually only a Trojan Horse, another Tom Chapman kind of scam, setting the stage to up the bid for a buy-out of the mineral rights.
Humphrey,
How does NPS mitigate for these environmental impacts that the oil drilling would cause? Is that only via an EIS to assess how much adverse impact there is?
I'm confused, because I thought under NEPA they required the EIS to properly assess the mitigation the oil company would have to provide. I'd read that the national park service can require them to do their mitigation ONLY on park property, which I think conflicts with FL state law (though I guess federal preemption would apply..?).
This is very concerning if they don't have to provide an EIS per NEPA. I don't even see how the park service could determine how much damage this drilling could cause otherwise.
Jefferson Mayhew, there are levels of "significance" in actions (Some are "significant" and others are not.) and levels of NEPA (tiered to or otherwise covered by an existing NEPA determination, categorical exclusion, Environmental Assessment (EA) resulting in a valid Finding Of No Significant Impact (FONSI), or full Environmental Impact Statement (EIS) resulting in a sustainable Record Of Decision (ROD)). It can get confusing. I'll try to untangle it; but, to do so, I might change the order of some of your questions.
You ask if an Environmental Impact Statement (EIS) is the only way that environmental impacts can be "assessed" and the answer is no. First, because and as I have already mentioned, there are several paths to "assess" environmental impacts even under NEPA and the applicability of each of these paths depends on any existing NEPA coverage and on the potential "significance" of the anticipated impacts. And, second, environmental impacts are investigated, assessed, and documented all the time through processes that are conducted by local jurisdictions, public health and safety authorities, landowners, lawyers, and private businesses and many, if not most, of these processes are not part of any formal NEPA process.
However, Big Cypress National Preserve is federal property and, as a result, federal law says it has to follow the NEPA process and stay compliant with NEPA, which is itself a federal law. So, anything Burnett Oil does on the preserve has to follow the NEPA process. What Burnett Oil has done in the preserve in past, what they want to do now, the "significance" of the impacts of their past actions, and the potential "significance" of the anticipated impacts of their proposed actions combine to dictate only two proper paths to now achieve NEPA compliance. They can try the cheap route, which is what they're trying now and which is to try to get away with preparing an Environmental Assessment (EA) and hope it results in a Finding Of No Significant Impact (FONSI) that doesn't get disapproved on review or in court. Their second option is to just go ahead and prepare a more expensive full Environmental Impact Statement (EIS), which would result in what is called a Record Of Decision (ROD), and hope to get that ROD approved.
A FONSI that could stand up to administrative and judicial review would allow Burnett Oil to proceed; however, getting such a FONSI would be doubtful, very doubtful in my opinion, given the established potential "significance" of the anticipated impacts of their proposed actions as well as the damage still remaining from their past actions. If that EA does not result in a defensible FONSI, they can still go back and prepare a more expensive full Environmental Impact Statement (EIS) and a Record Of Decision (ROD) and hope to get that approved. As I said in my previous comment, the only unassailable decision under the NEPA is a Record Of Decision (ROD) supported by a judicial finding that the EIS on which that ROD was based was itself truthful and complete and the actions covered by the ROD are themselves legal.
You ask how the NPS would mitigate the environmental impacts that Burnett Oil's activities would cause. The NEPA process is only a planning and decisionmaking support process. It only results in information, options, alternatives, and/or plans to support decisions that must then be acted upon through other processes. If the NEPA process is done properly, it will document the "mitigation requirements" that Burnett Oil or its contractors will have to meet, although those mitigation efforts may and probably would be done through separate contracts. But, these kinds of "mitigation requirements" are more properly contained in a ROD resulting from an EIS rather than an EA/FONSI effort because, if there is a need to impose "mitigation requirements" at all, it implies that there are "significant" impacts and, at that time, the propriety of a FONSI has pretty much already been ruled out. So, although we are, again, dealing with the NPS in Florida and an oil company that has already proven to be unreliable to say the least, this is the appropriate line of logic that a competent and honest administrative reviewer would use to validate your thinking, as stated in the second paragraph of your comment, that an EIS would be the proper venue for establishing mitigation and restoration standards that Burnett Oil should be required to meet. It is also why I doubted, from the beginning, that this would end with an EA and not have to proceed to an EIS.
I'm afraid that you may also be correct that, in fact, the NPS can or will only enforce "mitigation requirements" on Burnett Oil for impacts on park property. It's Florida; there is a state process; and you may need to seek other legal representation to ensure that you have a path to sue the NPS in order to reliably get to Burnett Oil for any impacts on private property. Again, NEPA is only a planning and decisionmaking support process. It only results in information, options, alternatives, and/or plans to support decisions that must then be acted upon through other processes and done through separate contracts.
Forgive me for being longwinded; but, please now refer to the second and tenth paragraphs in the article above, where you'll see that when, in 2015, Burnett Oil wanted to use massive 33-ton vibroseis vehicles, commonly known as "thumper" trucks, to pound the spongy, swampy, ground in the preserve in order to create shock waves that could be measured to map potential underground oil deposits, conservation groups and their experts wanted a full EIS done to 1) document the possible impacts of those "thumper" trucks moving across the spongy ground of the preserve and pounding it and 2) plan out the mitigation and repair actions Burnett Oil should have to complete or pay for as a result. But, instead of requiring that full EIS at that time, the NPS, relying on the inadequate language in that 1991 general management plan/EIS for the preserve, decided to just impose "47 mitigation requirements" that Burnett Oil had to meet, including requirements to repair, on a daily basis, the impacts of those "thumper" truck movements and their use, to recover some types of the vegetation, and to restore the compacted ground resulting from the heavy trucks and their operations, which is very important because, when the ground in the preserve is compacted, it changes both surface and subsurface water flows, results in longterm impacts to the vegetation, and initiates a destructive environmental cascade. Burnett Oil took that deal and avoided the need for a costly EIS; but, conservation groups and their experts, backed up by extensive photographic evidence, some of which has been posted in previous National Parks Traveler articles, say Burnett Oil didn't bother to do an adequate job of meeting the mitigation requirements they agreed to back in 2015 and the damage from those previous activities remans. You should see this as a cautionary tale, about the NPS in Florida, about Burnett Oil, and about trusting the legal/political system in Florida.
The is one of the last remaining strongholds of the endangered Florida panther. The biggest threat to this species is... ROADS! How can we possilby allow for roads through a National Preserve that will clearly have negative impacts to this and other native and imperiled species?
While I provided the following comments on another Big Cypress article, I thought I'd post it here at well since I beleive it very applicable.
Thank you for reminding anyone interested of the danger of continuous approval of oil and gas exploration via Environmental Assessments. As the first superintendent of Big Cypress National Preserve, I am very disappointed in the National Park Service's unwillingness to place greater importance on the many critical resources of the Preserve and recent emphasis on recreational use and minimal environmental review of oil & gas proposals. When Shell Oil proposed seismic testing in the 1980's, every levels of NPS Management stated that an Enviromental Impact Statement would be required before approval, especially to assure cummulative impacts were considered. When the NPS was directed to only complete an Environmental Assessment (EA) , environmental groups filed a law suit and the Shell dropped their proposal. This most recent seismic testing should not have occurred via an EA and now the subsequent oil & gas proposals mentioned here may also be approved via an EA? This is simply wrong and represents total failure to assess and address the full impacts, the cummulative impacts, that can occur after seismic and explorational drilling. The 1991 General Management Plan and specifically Appendix B emphasizes the significant impacts that can occur and most recently were experienced during the seismic testing. The enabling legislation of the NPS, the Redwoods Act and the enabling legislation for the Preserve provide significant authority to assure protection of the Preserve's resources. Why is the NPS not using the authorities that exist? When will NPS managers acknowledge that oil & gas exploration has stepped too far, Preserve resources are inappropriately being impacted and lost? When will NPS managers acknowledge that derogation will occur if these activities continue or are expanded?