California- Additional Comment period opens on ACECs in the DRECP (1 Viewer)

[65swb45]

As many of you know, I have spent the better part of the last two years from my seat on the BLM's Desert Advisory Council [DAC] challenging the Federal government's latest efforts to designate almost two million acres of the California Desert as Development Focus Areas [DFA's] for potential renewable energy development. In a nutshell, opponents [which include me] have challenged California's component participation in President Obama's Climate Action Plan [CAP], which is referred to as the Desert Renewable Energy and Conservation Plan [DRECP] for a number of reasons. Here are the ones that are most significant to me.



1. The plan is stale. This plan was originally developed in 2009 in a worthy effort to establish a better understanding and management of desert ecosystems [rather than making fragmented development decisions that would NEVER make proper accounting for cumulative impacts] as well as providing developers with a level playing field in which to make proposals that could be streamlined by having desert-wide quantifiable goals for species and habitat protection. However, we all know that commerce is dynamic, and as the original three year vision for creating the DRECP bloated into seven [and counting!] years, developers with money to spend have simply looked for ways to get around it. The uncertainty of it's legal future stands as a secondary impediment to developers actually making us of what seemed like, seven years ago, a good idea.



2. The plan is not really 'green' at all.



2a. Water. This has been one of my biggest heartburns, so I list it first, even though it has not been first on most participant's list. To meet the plan's 20,000MegaWatt target will require approximately 40 projects of an average of 4000 acres per project. Contrary to the imagination of those who spend no time there, the desert is neither flat or smooth. Every one of these projects would require substantial grading for roads and siting equipment. Grading makes dust. EPA dust control requirements for typical desert soils will require 500,000,000 gallons of water JUST FOR DUST CONTROL. Per project. That's 20 BILLION GALLONS to fully implement the plan.



And this is not water that is trucked in from some other place. That's too expensive. This water will come from ancient aquifers under or near these sites. Water that accumulated over the course of 16-17 million years. Water that will not likely be replaced by any known hydrologic process within the next millennium. And this proposal comes on the cusp of what could well be an altithermal, an extended drought with a precedent of lasting as much as 300 years.



Conversely, if solar projects were built in the cities, there would be almost no water required for dust control. Hmmm. Let's think about this.



2b. Carbon. The purpose of creating renewable energy projects is to try and lessen the carbon footprint of people's energy needs that would otherwise be met by carbon-producing methods. The 'dirty little secret' of wind and solar generating technologies is that if you add up the ENERGY costs of manufacturing the wind turbines or solar panels, the transportation ENERGY costs of moving them from where they are made to where they will be used, and the siting ENERGY costs that it will take to construct the project on a desert site, that total energy cost is estimated to eat up about the first 15 years of what those projects will produce in energy. That's basically saying 15 years to break even...before you ever flip the switch to turn them on.



That wouldn't be so bad if it weren't for a related estimate that these technologies only have a life expectancy of 20 years. Simple math says that's 75% of the value.



And it hasn't accounted for the ENERGY cost of transmission, getting that energy from remote locations where it is proposed to be generated to the cities where it will be used. Basically 100 miles of new transmission lines would have to be built, at an estimated dollar cost of $2,000,000,000 to get this 'green' electricity from point to point. I don't know what additional percentage of ENERGY cost BUILDING these additional transmission lines would cost, but I suspect it pretty much cancels out the remaining value of these projects, making them carbon neutral.



If this 'feel good' project was simply carbon neutral, it might still be somewhat palatable as another job-creating government subsidy. However, the carbon cost analysis is not complete.



The vast majority of desert soil is composed of a hard-pack substance commonly referred to as caliche, calcium carbonate. There's that carbon word again. It is no coincidence that carbon is a major component of caliche. Caliche is not on the Table of Elements as a primary building block. It is a product of a biological process. Micro-organisms in the desert soil actually pull carbon out of the atmosphere and sequester it in the ground, pulling it down exactly the same way trees and plants do. They produce accumulations of sub-surface caliche. People are much more familiar with the idea of ocean reefs, formed by coral polyps. Coral reefs are accumulations of calcium carbonate.



Monitoring technology developed with in the last two years has provided data that indicates the micro-organisms in typical desert strata sequester carbon at TWO THIRDS THE RATE OF A TROPICAL RAIN FOREST. And everyone understands the value of a rainforest to the earth's atmosphere.



Conversely, scraping 177,000 acres of the desert to build 'green' energy projects will destroy many if not most of these micro-organisms, along with their ability to perform this beneficial function. Their adaptability in the wake of a bulldozer blade is not known. Preliminary study of lands disturbed by grading has not been encouraging.



Then there is the simple fact that this now unearthed carbon has lost much of the bonding that kept it stable, in place. Dust control is not a perfect science. And while silica remains the primary particulate component of dust, this disturbed land will undoubtedly result in having a lot of carbon being returned to the atmosphere. A truly sad irony.



2c. Biology. As I stated earlier, the DRECP has been an enormous benefit to getting a much better understanding of desert flora, fauna and ecosystems. The federal agencies that gather data and formulate management plans for protecting these things have been perpetually underfunded, save for the intermittent PR opportunities like sage grouse or the vole. With the impetus of creating a plausibly 'safe' baseline for encouraging further development, serious money was put into gathering and analyzing data on flora, fauna and ecosystems. In my estimation, science that would have taken 20 years to gather under normal funding paradigms was accelerated and compressed into a 5 year period starting in 2007 and ending in 2012. We refer to this phenomenon as political will.



However, we know that science is a constantly evolving process of replacing good information with better information. Partially in response to the DRECP, the science of desert flora, fauna and ecosystems has been put on many more scientist's radar screens, and the momentum created by the DRECP has not diminished. What that means is that while the government had to 'close the door' at some point, establishing A baseline on which to make planning decisions, the ACTUAL data the government COULD have used has continued to progress, quickly eroding the value under which planning assumptions and ultimate decisions were made...in 2009. While SOME of the science can still readily be incorporated into management decisions when specific projects are proposed, some of it, like the caliche analysis, did not exist then, and fundamentally fractures the foundation on which planning assumptions were made, thereby undermining the value of several key planning decisions in the plan.



We would incur none of these 'green' costs if we sited solar in the city.



3. The plan institutionalizes old technologies at the expense of emerging technologies. The vast majority of energy planners today will tell you that the energy paradigm exemplified by the TVA [the first large-scale energy plan of the 1930s] is a planning nightmare of inefficiency, and that nobody in their right mind would imitate it. Yet that is exactly what our government has authorized and encouraged for the last eighty years. DRECP exacerbates that nightmare by committing the next thirty years of development to the same flawed strategy of remote siting, ridiculously unnecessary transmission costs, and ridiculously inefficient energy transmission losses caused solely by remote siting.



Further, DRECP effectively discourages other technologies by only offering the direct and indirect benefits of siting in the areas, and under the conditions identified by the plan. For as 'green' as wind turbines and photo-voltaic panels arguably are [see discussion above]
they are not as green as some of the technologies on the horizon, either by breaking the current inefficiencies of manufacture, transportation, siting and transmission costs, or simply by offering options with increased longevity. By incentivising a handful of 'old-school' existing energy technologies, DRECP strikes an eerie parallel to the accusations thrown at the oil, gas and automotive industries regarding the development of alternative vehicles.



There are other science-based objections. These will suffice for Part 1.

 

[65swb45]

In addition to the substantive challenges I made to the 'science' of the DRECP, I also made several procedural challenges.



1. The MUCs. My first challenge stemmed directly from my 36 year involvement in the off road community. From the time I started four wheeling in 1980, the desert lands managed by the BLM have been designated as either open, limited, or closed, under a very basic Multiple Use Classification [MUC] system of the original Desert Plan [CDCA]. The system was designed as an interim measure, but as we all know, temporary things can sometimes last a very long time.



The DRECP is a master-class planning document. It modifies and replaces substantial portions of the original CDCA. However, it escaped my intention for several months after the initial environmental impact statement [DEIS] was released that the plan would COMPLETELY ELIMINATE and REPLACE the MUC system. There are two very big problems with this. On the procedural side, the BLM did not specifically acknowledge in their Federal Register notice or the Executive Summary of the DRECP that the MUC system, the simple, east-to-recognize, easy to follow system that the ENTIRE recreating public has relied on for the last 35 years would be replaced. That is a due process issue. The second is that the new classifications that will be created by the DRECP are significantly vaguer, as well as having overlapping management goals and strategies. It will take the land managers a long time to figure out how to implement these new designations on the ground, and even longer to figure out how to educate the public.



In spite of these issues, I am personally in favor of these changes. I recognize that the original system was a temporary one, and as our understanding of the desert's fragility has increased, so too should responsive management strategies. I believe the new land designations will result in better long term management of the desert. But the problem remains: the only notice the public ever got was that there was a renewable energy and conservation plan being developed. They were not fairly and adequately notified that the primary basis by which they recreate was being replaced.



If you know anything about the history of land use plans in the California desert, then you would already know that recreation interests have taken a strong, front-row approach to EVERY management plan that potentially affects recreation. In stark contrast, virtually all public interest in this plan was focused on either the danger of potential renewable energy siting, or the science used to formulate plans for conservation. I for one think there is a direct correlation between the lack of public notice of the MUC replacement and the lack of participation from recreation interests.



2. The ACECs. ACECs are Areas of Critical Environmental Concern. Environment is a broad term. It does not exclusively refer to things like plants and animals. For example sometimes a significant accumulation of cultural artifacts, like an ancient Indian village, or a mining ghost town are designated as ACECs. In the DRECP, the well-known ghost town of Cerro Gordo is one such ACEC.



ACECs are blocked out and segregated from the rest of the management areas so that whatever qualified them for special treatment also gives the agency the latitude to develop specific management strategies for that particular area to try and maintain its special qualities. Again, an admirable goal. However, the ACECs proposed by the DRECP suffer from three problems.



2a. Single Mass Designation. Over the course of the 35 years the BLM identified just under 90 areas suitable for designation and management as an ACEC. That's an average of 3 a year. As you might well imagine, this was and is quite a manageable task, both for the agency formulating the plans, and for the public involved in reviewing them.



In contrast, the DRECP proposed to designate 140 ACECs....SIMULTANEOUSLY! The public was forced into a catch 22 of trying to evaluate 140 plans, over an area now estimated to exceed 5 million acres, under the same time limits they had for reviewing energy siting issues and flawed science for the conservation measures that kept them completely preoccupied. The records will show the ACECs received very little comment.



2b. Critical Missing Information. Adding to this unfairness, should the public have mustered the additional energy to investigate these 140 critical sites, they would have quickly discovered that the most critical piece of information needed to evaluate what kind of 'stress' could be put on these areas, via public access over roads and trails, was COMPLETELY MISSING. That's right: most of the maps of the ACECs don't show ANY roads on them, although every one of them is criss-crossed by them. How could this be? The answer is both simple and sad.



While the DRECP was being formulated, the BLM was simultaneously updating the route designations through a process called the West Mojave plan, or WEMO. WEMO has been involved in litigation since 2006, and the route designation process has not been completed. DRECP was developed with the anticipation that the WEMO process would be completed long before DRECP was finished, and the routes would simply be 'plugged in' once the information became 'official' as a final document. A series of logistical and legal issues has plagued the WEMO process ever since it was handed back by the federal court to the BLM to resolve. The BLM has been working very hard to make the new plan REALLY good; that kind of planning takes time.



Since the route designation information did not appear as planned, the public was left with a no-win situation of having a limited window of opportunity to make public comment on the DRECP in which there would be no road maps on which to make meaningful evaluations of these 140 proposals. I have an analogy that should be instructive. Lets say you are put in charge of protecting the contents of a building. There's something valuable inside. THE FIRST THING you would want to know is, WHERE ARE THE ENTRANCES AND EXITS? HOW DO PEOPLE GET IN AND OUT?



ACECs are places the government has decided need special protection. Their ultimate management decisions may well be to eliminate all public access. But in inviting you to comment on whether their protection plan is adequate, they won't even tell you where the entrances and exits are. And you're supposed to comment on whether the plan for protection is necessary or adequate. That's just not right.



2c. Federal Register notice. According to the government's own Code of Federal Regulations [CFR] each new ACEC they propose must be specifically identified. The whole time I was reading, formulating ideas and commenting on the DRECP, I was troubled by the twin facts that not only were so many ACECs being proposed simultaneously, but that they weren't even identified unless and until you made an effort to delve into one of the many Appendixes of the plan. While I did not know of the specific requirements of the CFR, I felt fairly certain that there was a 'notice' issue under the due process requirements of the 14th Amendment.



Due process requires the government to provide meaningful notice in a way that is reasonably likely to inform [or create a rebuttable 'should-have-known presumption] the public that a specific action is proposed. In this case, I take that to mean that if the government wants to create 140 ACECs, they should LIST 140 ACECs...by name. Sure enough, when I went digging into the CFRs, there it was: a statutory requirement to list them, individually, by name.



When the Final Environmental Impact Statement was released, it was obvious that the plan was going to move forward substantially unchanged. This left everyone with the feeling that once again everything would have to be litigated. The result: one more instance of 'management by decree', where the agency, unable to resist political pressure and provide truly independent decisions, leaves it to the court system to mesh land use planning with legal requirements.



In this context, I chose to be one of 43 who would write and ultimately file final protest letters with the agency in a last ditch effort to temper, modify or otherwise change the plan before it reached its Record of Decision [ROD]. The final protest period ended on December 14, 2015. Typically the protests are answered in 30 days. We expected that' owing to the size and complexity of the DRECP, responding to the protests might take a bit longer. As of March 5th, the responses had still not been filed. March 5th is a significant date to me, because it also marked the quarterly meeting of the BLM's Desert Advisory Council[DAC], on which I sit.



At that meeting, the District Manager announced that Washington was still considering my comment letter. This was a very pleasant surprise. I thought that I had done a reasonably good job of doing my homework to make sure my points were both clear and reasonable.

The following Tuesday, we [the members of the DAC] received a cryptic e-mail calling for a teleconference the next day. No agenda was given.



On the conference call it was announced that the BLM had decided to, and would shortly thereafter release a NEW Federal Register notice, opening an additional 60 comment period on the ACECs. I was right.



What should we do with this additional opportunity? Stay tuned for Part 3.

 

[Spike Strip]

Amazing. Who would have thought reason and logic and common sense might sway the U.S. Gov't.

Nice work.

Does this mean the Hoi Polloi can comment during the open period, or only Docents ?

 

[DSB345]

Makes sense to me

 

[65swb45]

Amazing. Who would have thought reason and logic and common sense might sway the U.S. Gov't.

Nice work.

Does this mean the Hoi Polloi can comment during the open period, or only Docents ?

Anyone can comment, and anyone who has an interest in continuing to recreate in any of the 5 million acres of land that will have this designation SHOULD comment.

Two of the more disturbing elements of the designation are as follows. First, the designation carries with it an automatic, RETROACTIVE disturbance cap of one percent. That's not very much. And EVERYTHING counts against that one percent cap, included ground that was leveled at some point for a cabin, even if that cabin, and everything associated with it are long gone. Either have to invest non-existant funds to restore that property to a 'natural' state, or start closing roads to bring the 'disturbance' down. Sound like a suspicious 'back-door' approach to de facto wilderness? It is.

The second issue is that I stated, the new designations are vaguer. They also overlap. There are also several million acres of land that will now be referred to as National Conservation Lands (NCL) Where that designation overlaps an ACEC, the new ruleset says which ever management paradigm is more restrictive will be applied. And despite our protests, we could not get recreation added as a consideration to the NCL ruleset.

 

[StaleAle]

Congratulations Mark! We are very fortunate to have someone so dedicated and capable focused on the mind-numbing bureaucratic mechanations of the BLM. Thank you for bringing to light the subterfuge with which the BLM pursues unpopular political agendas while allegedly managing our public lands "to sustain the health, diversity, and productivity of the public lands for the use and enjoyment of present and future generations".

Thank you for your service on behalf of all of us! I find it very difficult to understand how questionable so-called "green energy" initiatives that would irreversibly alter or destroy a unique and significant cultural treasure can be consistent with the BLM mission.

 

[65swb45]

Mark Twain said it best: There's three kinds of lies. Lies, damn lies, and statistics

Back in the '80s the government started a few programs referred to as 'cap' and trade'.
In the first instance I heard of, Los Angeles imposed a 12 story building height limit on the downtown area. Those who had already made the move to capitalize on property for parking lots all of a sudden found they had 12 vertical stories of air to sell to a developer who wanted more! Capitalism at its finest. On a darker front, someone who could not open a business because of pollution issues became capable of buying another business' pre-existing right to pollute. As long as the cap was not exceeded, it was ok.



With the DRECP, the government, in the name of science, set out to identify all the different plant and animal species across the desert in order to better understand the ecosystems necessary for their survival. Once the studies were concluded, they determined what the MINIMUM requirements were for species survival, allowing them to 'balance' further development on the back of the desert.
A minimum cap.

The statistical lie in all of this is using models that are too big in order to dodge how severe the potential disruptions are. I liken it to saying we can cut down all the trees in North America because there are still plenty of trees in South America. If you use big enough brushstrokes to paint the picture you want people to see, nothing looks unreasonable.


This self-serving subterfuge of altruism reminds me of the deadly mistake humans reached in translating the Kanamit's book 'To Serve Man' on that famous episode of The Twilight Zone.



@DSB345 made a very interesting point to me about this the other day. If all the people putting solar panels on their house had been encouraged to put up just 3 or 4 more panels, rather than the bare minimum to meet their personal requirements, we'd be a lot further down the 'supply' side of this road, without ANY talk about additional infrastructure. More food for thought.

 

[65swb45]

Update

I have put a lot of hours in over the last month formulating a strategy for explaining to the common man what my 'beef' is about the ACECs[ Area of Critical Environmental Concern]. I have been approached by several land use organizations to develop a simple powerpoint to explain. I created an analogy and spent basically the whole month beta-testing it in oral presentations. The image seems sound, so I have committed it to writing. Let me know what you think.

1. The process of creating an Area of Critical Environmental Concern [ACEC] is analogous to building a structure to protect a special asset inside. The public participation component of creating an ACEC is like asking the public for input on whether the building has been properly designed to accomplish its task of protecting that asset. The public process of the DRECP, wherein the request required the public to utilize maps with no roads on them amounted to asking an opinion on whether the structure was adequate without being able to identify where the primary vulnerabilities, the doors and windows, are.

Accordingly, here is my powerpoint:

1. The National Environmental Policy Act [NEPA] requires a threshold level of information to be provided in order to comply with legal requirements for meaningful public participation.
   
   
2. BLMs failure to provide maps for the ACECs in the West Mojave[WEMO] planning area that include route networks deprived the public of basic, critical information on which to provide meaningful participation and fact-based input. NEPA contemplates opinions, not guesses.
   
   
3. Knowing the route networks involved in each ACEC is a critical component of assessing the vulnerabilities associated with protecting the asset of the ACEC, and thereby whether the size and shape of the ACEC are adequate to the task.
   

1. 
   
   
   • 
     
     4. There is no overriding, overarching need on the part of the BLM to designate route-less ACECs at this time that have not had the substantive public participation contemplated and required by NEPA.
   • 5. BLM should therefore postpone designation of any and all ACECs for which route networks were not provided in the DEIS of the DRECP.
   • 6. The postponement should last until the WEMO route designation process has concluded.
   • 7. At that point, the applicable route networks should be added to the individual ACECs, a summary explaining the relationship of the route networks to the size and shape of the ACECs should be developed, and a new public process should be started.

I have no idea how to eliminate the strike feature!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

1. 
   
   
   • 
     
     

 

[65swb45]

1. The National Environmental Policy Act [NEPA] requires a threshold level of information to be provided in order to comply with legal requirements for meaningful public participation.
   
   
2. BLMs failure to provide maps for the ACECs in the West Mojave[WEMO] planning area that include route networks deprived the public of basic, critical information on which to provide meaningful participation and fact-based input. NEPA contemplates opinions, not guesses.
   
   
3. Knowing the route networks involved in each ACEC is a critical component of assessing the vulnerabilities associated with protecting the asset of the ACEC, and thereby whether the size and shape of the ACEC are adequate to the task.
   
   
   [*]There is no overriding, overarching need on the part of the BLM to designate route-less ACECs at this time that have not had the substantive public participation contemplated and required by NEPA.
   
   
   [*]BLM should therefore postpone designation of any and all ACECs for which route networks were not provided in the DEIS of the DRECP.
   
   
   [*]The postponement should last until the WEMO route designation process has concluded.
   
   
   [*]At that point, the applicable route networks should be added to the individual ACECs, a summary explaining the relationship of the route networks to the size and shape of the ACECs should be developed, and a new public process should be started.

1. Yet another computer snafu, eliminating numbers AND ADDING THE STRIKE FEATURE!!!!!!!!!AARGH!!!!!!!!!

 

[65swb45]

I tried e-mailing it to myself, and it seemed fine. Tried pasting from the e-mail and reloading; that created bullets without numbers.

 

[65swb45]

• 
  The National Environmental Policy Act [NEPA] requires a threshold level of information to be provided in order to comply with legal requirements for meaningful public participation.

• BLMs failure to provide maps for the ACECs in the West Mojave[WEMO] planning area that include route networks deprived the public of basic, critical information on which to provide meaningful participation and fact-based input. NEPA contemplates opinions, not guesses.

• Knowing the route networks involved in each ACEC is a critical component of assessing the vulnerabilities associated with protecting the asset of the ACEC, and thereby whether the size and shape of the ACEC are adequate to the task.
  

• There is no overriding, overarching need on the part of the BLM to designate route-less ACECs at this time that have not had the substantive public participation contemplated and required by NEPA.

• BLM should therefore postpone designation of any and all ACECs for which route networks were not provided in the DEIS of the DRECP.

• The postponement should last until the WEMO route designation process has concluded.

• At that point, the applicable route networks should be added to the individual ACECs, a summary explaining the relationship of the route networks to the size and shape of the ACECs should be developed, and a new public process should be started.

 

[Spike Strip]

65swb45 -Update

I have put a lot of hours in over the last month formulating a strategy for explaining to the common man what my 'beef' is about the ACECs[ Area of Critical Environmental Concern]. I have been approached by several land use organizations to develop a simple powerpoint to explain. I created an analogy and spent basically the whole month beta-testing it in oral presentations. The image seems sound, so I have committed it to writing. Let me know what you think.

1. The process of creating an Area of Critical Environmental Concern [ACEC] is analogous to building a structure to protect a special asset inside. The public participation component of creating an ACEC is like asking the public for input on whether the building has been properly designed to accomplish its task of protecting that asset. The public process of the DRECP, wherein the request required the public to utilize maps with no roads on them amounted to asking an opinion on whether the structure was adequate without being able to identify where the primary vulnerabilities, the doors and windows, are.

Accordingly, here is my powerpoint:

1. The National Environmental Policy Act [NEPA] requires a threshold level of information to be provided in order to comply with legal requirements for meaningful public participation.
   
   
2. BLMs failure to provide maps for the ACECs in the West Mojave[WEMO] planning area that include route networks deprived the public of basic, critical information on which to provide meaningful participation and fact-based input. NEPA contemplates opinions, not guesses.
   
   
3. Knowing the route networks involved in each ACEC is a critical component of assessing the vulnerabilities associated with protecting the asset of the ACEC, and thereby whether the size and shape of the ACEC are adequate to the task.

1. • 
     
     4. There is no overriding, overarching need on the part of the BLM to designate route-less ACECs at this time that have not had the substantive public participation contemplated and required by NEPA.
   • 5. BLM should therefore postpone designation of any and all ACECs for which route networks were not provided in the DEIS of the DRECP.
   • 6. The postponement should last until the WEMO route designation process has concluded.
   • 7. At that point, the applicable route networks should be added to the individual ACECs, a summary explaining the relationship of the route networks to the size and shape of the ACECs should be developed, and a new public process should be started.

(removed formatting)


Nice work, Mark. Even I understood it.

 

[65swb45]

D'oh

I forgot to give you the mailing information for your comment letters.

Snail mail:
DRECP Program Manager
2800 Cottage Way Suite W-1623
Sacramento, CA 95825

E-mail:
blm_ca_drecp@blm.gov

You don't have to do anything if you don't care.

 

[Solace in Solitude]

Very good analogy!! Excellent PowerPoint, Mark!!

 

[DSB345]

I agree! He has put a lot of effort forward for the public good. It's time some of us support the effort by writing in support of message.

Very good analogy!! Excellent PowerPoint, Mark!!

 

[DSB345]

I believe in renewable energy but not at the expense of our water table and waste of resources to get there.

 

[Spike Strip]

I'm going to send a snail mail, as I think it has more impact?

Is there a formal way to address the DRECP Program Manager? Or will a simple, Dear Sir/Madam do?

 

[65swb45]

The name of the program manager is Vicki Campbell.

 

[65swb45]

I agree! He has put a lot of effort forward for the public good. It's time some of us support the effort by writing in support of message.

Thanks guys. At last month's BLM meeting, the Ridgecrest Field Office manager gave me a Volunteer Pass for a year's worth of free admissions to all national parks and federal recreation lands. It's token recognition for the fact that I donated over five hundred volunteer hours last year.

 

[65swb45]

Here is my official comment letter. Not as snafu-ed as the last posting, but still not glitch free.


May 3rd, 2016
To: Vicki Campbell,
DRECP Program Manager
2800 Cottage Way
Suite W-1623
Sacramento, CA 95825

Dear Ms Campbell

This purpose of this letter is to provide formal comment on the proposed ACECs in the DRECP. For all of the following reasons [as well as others not appropriate for public comment] I do not feel that the ACECs should be designated at this time.

1. The ACECs were never properly noticed in the DRECP process. The procedural requirements are clear, and I put them in my protest letter. “The statutory authority covering the designation of ACECs can be found at 43 CFR 1610.7-2. The relevant subsection for discussion here is subsection(b) This subsection requires the State Director to "publish a notice in the Federal Register listing each ACEC proposed and specifying the resource limitations.... The notice shall provide a 60-day period for public comment on the proposed ACEC designation." The word “designation” is used in the singular for a very specific reason. The requirement is clear: one Federal Register notice for EACH ACEC. In contrast, the Federal Register notice that was finally provided still does not list them as separate notices; it is still a defective notice.
   
   
2. The ACECs were not adequately addressed by the DRECP process.
   
   a. They should not have been handled in bulk. As addressed in my original comment letter, ACECs have historically been generated at a rate of a handful per year, allowing for careful, deliberate consideration and planning. It is implicit in the Federal Register notice requirement that the ACECs be individually noticed that it would not be an onerous burden because it was never contemplated that the Bureau would attempt to designate 134 of them simultaneously.
   
   b. They should not have been handled as an 'also-ran' sidebar buried in an appendix. The bulk of the DRECP, and the bulk of what the participating public focused on, was and is the science that informed the conservation measures that would allow for designating DFAs. While the DRECP was and is a convenient platform for moving several management proposals forwards, it is not an appropriate one in every case, and especially in the case of the ACECs.
   
   c. The NEPA violation of designating ACECs by this process can be proven not just as a procedural flaw, but a violation in fact; the administrative record will bear out the fact that area-specific ACEC comments to the DEIS were virtually nonexistent. Most people did not even know this was happening.
   
   
3. The majority of the ACECs as described in the DRECP-DEIS [the public comment phase] were inherently defective from the standpoint that they contained virtually no route information.
   a. The heart of the ACEC designation is asset protection.
   b. You cannot begin to develop a plan for protecting an asset without knowing what its vulnerabilities are. Points of ingress and egress ARE the major vulnerabilities.
   c. While it could be argued that route designation within ACECs can be postponed to the implementation phase, it belies the fact that without being able to compare and contrast assets to vulnerabilities, neither the Bureau or the public can even assess whether the SIZE and SHAPE of the ACEC is adequate to the task. Sizing an ACEC requires an understanding of BOTH assets and risks.
   
   
4. The majority of the ACECs presented in the DRECP-DEIS were dependent on the route network provided for in the 2006 WEMO FEIS. After all, those route maps were the only ones available at the time the DEIS was being crafted [2009-2012]. Therefore it is safe to assume they were the basis on which the ACEC sizes and shapes were crafted.
   
   
5. There was no reason to believe at the time the DEIS was being crafted that the BLM would detour in any significant way from the 2006 WEMO FEIS, even though the summary judgement in the case basically ordered the Bureau to conduct a new route inventory.
   
   
6. Even after the publicly-generated results of the WMRNP were submitted, the Bureau maintained the position that it was enforcing the 2006 WEMO FEIS as a matter of consistent policy.
   
   
7. Therefore, the public commenting on the DRECP DEIS would have had NO OTHER BASIS on which to provide comments on the ACECs, had they the wherewithal to discover the footnoted mass designations, than to supply all the missing route information from the Appendix maps [which was not a fair burden in the first place] using the WEMO FEIS maps, THE ONLY OFFICIALLY SANCTIONED MAPS available.
   
   
8. Public review and comment on the DRECP DEIS closed February 23, 2015. This date is significant.
   
   
9. Over one year later, on March 11, 2016, the BLM reopened the comment period on the ACECs. The official press release regarding the reopening of the comment period treated this as only a correction of a ministerial error regarding publication in the Federal Register.
   
   
10. What neither the Federal Register notice or the Press Release for the reopening of the comment period addressed is the fact that in the meantime, on March 6, 2015, two weeks AFTER THE PUBLIC COMMENT PERIOD ON THE DEIS of the DRECP CLOSED, the BLM released the SEIS for WEMO. Without any hint of its coming, the BLM released to the public FOR THE FIRST TIME as a Preferred Alternative a Route Network of 15,000 miles. For those of you who are not math majors, that's approximately THREE TIMES as many routes as were in the 2006 WEMO FEIS, the 'most reliable' source of information on which the public could have used for reference in making comments on the proposed ACECs.
    
    
11. This leaves an unavoidable conclusion. The ill-prepared ACECs, which never should have been proposed for formal designation THAT REQUIRES PUBLIC REVIEW without any route information now, after the ability for public comment has passed, are in fact potentially subject to THREE TIMES as many vulnerabilities. This new and substantial information completely undercuts and undermines the adequacy of AND and ALL determinations as to the size and shape of the ACECs within the WEMO planning area. If you weren't sure if the size and shape of an ACEC was adequate to the task before, now you have the unenviable position of being three times as unsure!
    
    
12. This post-public review release of the WEMO SEIS itself is exactly the type of 'significant new circumstances or information” contemplated by 40CFR section 1502.9[c] in requiring the agency to make an analysis and determination of whether an SEIS needs to be prepared on the ACECs.
    
    
13. The Federal Register notice failed to even acknowledge the WEMO SEIS.
    
    
14. Therefore, it is reasonable to infer that no analysis of the significance of the expanded route network's effects on the ACECs was done.
    
    
15. A. Proposing ACECs without known routes of travel is simply an untenable position.
    B. Asking the public for reasoned comments and analysis on them without providing route information is a violation of NEPA. NEPA contemplates opinions, not guesses.
    C. Proceeding to designation with maps which are now VASTLY different to the ones the public had access to during the comment period is just a suicidal violation of due process.
    D. The lack of basic and critical information required for establishing meaningful participation required by NEPA has been compounded by the Bureau's insistence on closing public input without integrating this new and vital information.
    
    
16. To the idea that the routes identified in the SEIS are not relevant until an ROD, I would point out that the Bureau has already embraced them as a 'done deal' in other planning efforts. At the April 21st, 2016 meeting of the Consulting Parties to the Section 106 Programmatic Agreement, I specifically asked Bureau personnel if 106 planning efforts were made based on 2006 FEIS route inventory or the new SEIS inventory. The response was that all planning assumptions were made based on the SEIS inventory. Therefore, it would be disingenuous, hypocritical and just untrue for the Bureau to say that the SEIS was important enough to form the baseline for analysis in one setting and yet have no bearing on the public's opportunity to provide meaningful comments in another.
    
    
17. Due Process and NEPA requirements are clear. The public must be provided legally sufficient notice regarding proposed action and a meaningful opportunity to be heard. For that opportunity to be meaningful in a legal sense requires many elements, the most fundamental of which is SUFFICIENT information on which to provide meaningful comments. ACECs that lack the most fundamental information, that regarding the rationale for the choice of size and shape [which in turn are predicated on non-existent route networks] simply does not qualify as legally sufficient. IT IS DEFICIENT AS A MATTER OF LAW.
    
    
18. The NEPA issue with the ACECs of the DRECP is compounded by the fact that this is not an opportunity that can be made up for and/or corrected thru later proceedings. The NEPA analysis also considers how and where the public has opportunities for input. One of the main arguments offered by the BLM regarding the public's concerns over the designation of the DFAs is that the DRECP is a “programmatic” plan which does not approve ANY specific projects, and that the public will still have opportunity for review of individual projects. However, this 'post-designation' logic DOES NOT APPLY to the ACECs.
    
    Historically, the management of ACECs has been an exclusively ministerial function that the BLM carries out internally, making management decisions and adjustments as circumstances warrant. The public often does not even find out about them until months or years after the fact. This scenario is NOT LIKELY TO IMPROVE as a result of the BLM's 2.0 Planning efforts. One of the 2.0 Planning effort's stated goals is to streamline review processes across the board. This specifically includes ACECs.
    
    Therefore, RIGHT NOW, the time before the final designation of the ACECs is made, is qualitatively the ONLY time at which the public will have a meaningful opportunity for input on the overall framework of these designations. In the context of understanding and appreciating that this is the public's ONLY MEANINGFUL OPPORTUNITY to provide comment, it underscores how the lack of critical information negates NEPA compliance.
    
    
19. What is the answer?
    
    
20. Take this car off the train: Postpone the designation of the ACECs.
    
    
21. Postpone does not mean eliminate. Postpone means allow the WEMO process to proceed to a Record of Decision. Once the ROD is signed, the route inventory of the new SEIS will have the same force as that of the 2006 FEIS. The Bureau can proceed with a new, robust consideration of ACECs, even though the ROD is bound to be tied up in litigation just as its predecessor was. From an adjudicatory perspective, the postponement will probably prove a safer harbor in the long run for the ACEC process than the litigation that will follow the signing of the DRECP.
    
    
22. In the meantime, the pre-designation status of the ACECs as proposed in the FEIS will still act as a 'place-holder' that earmarks this land for management consistent with the conservation goals for which it was earmarked, in exactly the same way WSAs are managed, until a final determination is made.
    
    
23. The Bureau should in all fairness give due consideration that with the haste of helping carry the DRECP to its conclusion gone, that the ACEC process can be extended over the course of a few years to allow for the kind of robust public participation the public has come to expect in this process and implicit in the CFR's requirement that they be individually noticed.
    
    
24. As a second alternative, which is still subject to judicial scrutiny for due process concerns, the Bureau could consider postponing ONLY THOSE ACECs which were put in indeterminate status by the lack of WEMO mapping information. Should there be ACECs for which route networks WERE adequately provided [something of which I lack personal knowledge] then conceivably those ACECs could be moved forward. I still maintain that the public processes of the DRECP were insufficient for NEPA standards. At least there was SOME route information, as opposed to NONE!
    
    
25. Lastly, postponing official designation of the ACECs will allow the Bureau the opportunity to revisit the wisdom of proposing a blanket one percent disturbance cap on all of the ACECs. In all other respects, the DRECP was created to be an adaptive management tool that allows for feedback from the field to inform management direction and the flexibility to implement changes over time. In the face of this adaptive management paradigm, the fixed target of the disturbance cap is not only NOT ADAPTIVE, but unduly restrictive. While some areas may already be near the one percent goal, others could be extremely far off, requiring severe and draconian measures to reach this target.
    
    Some of the ACECs are proposed and designed to protect assets specifically associated with recreation. Here the disturbance cap would work at clear cross purposes to the reason for creating the ACEC in the first place by a prejudicial assumption that any routes in excess of the disturbance cap are inherently bad or otherwise unnecessary. In others, it could be readily found that adaptive management calls for more narrowly tailoring the boundaries of the ACEC to balance the needs for access and the ability to provide enforceable regulations against protection of the asset. In those cases, the 'bright line' of the disturbance cap is the equivalent of the tail wagging the dog. While this may be a cute attribute for a domestic animal, it has no place in an adaptive management plan for our desert.
    
    As a final thought on the blanket imposition of the one percent disturbance cap, I would like to share with the Bureau an apropos observation. As the philosopher Ralph Waldo Emerson put it two hundred years ago, “A foolish consistency is the hobgoblin of little minds.”

Thank you in advance for your careful consideration of my comments. If you or anyone else in the Bureau have questions or concerns about them you or they would like to discuss, I will be more than happy to do so after the comment period has ended.



Sincerely,





Mark Algazy, Esq.