Sharon

Marshall Fire Update: Two Ignition Sources, Buried Fire and Power Line, Coal Seam Not Ruled Out

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Later today the Boulder County Sheriff’s Department will post their analysis on their website.
Here’s a good story on it from the Colorado Sun.

It’s an interesting story of how homeowners burned material, put it out and buried it, and the wind came up a week later and blew the soil off and it started dry grass on fire. In dry areas with grasslands, dry grass is a natural feature for part of the year. Mountain View Fire determined that the reidents’ plan to extinguish it was reasonable and responsible. The Forest Service investigators and the Missoula Fire Lab were both mentioned as helping in the investigation.

We were talking about continuous improvement with regard to the NWFP; in this case, Boulder changed their rules to focus on water putting out fires.

So if we were to build a model of why this fire happened, we’d have:

Ignitions
Suppression Forces Stretched Thin by Several Ignitions, Covid
Wind- spread fire, plus air resources couldn’t be used.
Fuels- In many places with dry grass, grasses are eaten in the summer when they are green by grazing animals which reduces surface fuels. In fact, one one TV show I watched that day, the fire stopped at a rancher’s grazed area.

In our part of the country, these conditions are fairly common in the fall and winter and our county’s strategy is robust initial attack.
Originally coverage of this was all about climate change.

You might want to go back to my previous post on the Marshall Fire.

OK, so after unusually wet spring (is that AGW also?) precipitation below average and temperatures above average.  But of course averages are averages because.. some observations are higher and some are lower.  I would have said “the dry conditions we experienced (not the wet ones that encouraged plant growth?) are predicted to become more likely under AGW.”  That is very different from being a “result” of climate change.  Also there is a difference between the same conditions that used to happen, happening more frequently (we know how to adapt, and have to just do those things more often) and things that never happened before happening (where we need to respond differently). I’m not sure that distinction is often made.

 

I recommend Roger Pielke, Jrs. somewhat wonky but very thoughtful take on causality as it relates to the Marshall Fire.

Common narratives possibly contradicted by this example:

Current thinking: Cows are bad. And yet, they reduce grassy fuels and convert them to food.
Current thinking: Individual cars should be replaced by public transportation. And yet, people amazingly evacuated themselves and their animals quickly using.. individual vehicles.
Current thinking: Let’s build and maintain lots more power lines in dry places. And yet, maybe we should get better at maintaining the ones we have?
Current thinking: High density housing is best. And yet, house proximity caused fire transfer as in this Denver Post story.

Maybe communities in dry fire-prone ecosystems need to develop their own visions of how best to live with fire.

SUPERIOR – Too many houses built too close together on the tinder-dry high plains between Denver and Boulder led to the record Marshall firestorm losses topping $1 billion, insurance industry researchers found this week as they sifted through ashes and charred ruins.
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“Conflagration happens when you get that proximity,” Roy Wright, chief executive of the insurance institute, said Thursday as his team began their investigation.

Spacing closer than 12 feet favors fire, researchers have established, and gaps between homes of 50 feet or more are advisable, Wright said. “Dispersion is one way to eliminate the domino effect” and with greater spacing “you would not have had so many structures lost.”

Re-making Colorado suburbs to endure worsening fires also will require clearing buffers at least five feet wide and “impeccably” bare, Wright said, along with screens on vents and retro-fitting with non-flammable roofing, siding and vegetation. Well-watered green lawns are less likely to burn than native grasses, he said.

And the mulch that residents increasingly use to help plants endure as temperatures rise “is like spreading match sticks around your home.”

From that story:

The question is what hardening would entail. A fire safety push for lower-density housing would collide with a push by some planners and developers toward higher-density “mixed-use” communities. Population growth in Colorado and other parts of the arid West has led some planners to encourage housing “units” clustered tightly like integrated circuits and surrounded by native vegetation that requires less water than lawns and parks.

Closer spacing and vegetation management for fire protection could clash with water conservation and other long-term objectives, said Molly Mowery, director of the Community Wildfire Planning Center, a nonprofit that guides town officials.

Looking at limits on growth opens “a huge can of worms,” Mowery said, anticipating that boosting fire resilience will require balancing climate warming preparedness measures. “There’s not going to be a solution that satisfies everything.”

BLM Proposed Rule II. Abstractions Run Amok: A Regulatory “Situation That Shouts “Watch Out””

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As far as I’m concerned, abstractions are hatchways to hokum.. and portals to privilege- because you can be pretty sure you won’t be in the room when the details of who benefits and who loses from the definition is hashed out. There’s a common concept of “over-thinking” something; perhaps there should also be a concept of “over-wording.” It would include

1. Making up new words when all the concepts already exist,

2. Using plain English words to mean something else,

And for feds in particular

3. Making up new meanings for words already used by other federal agencies.

In this rule, a few abstractions that raise red flags:

“FLPMA’s (Fip-ma) declaration of policy and definitions of “multiple use” and “sustained yield” reveal that conservation is a use on par with other uses under FLPMA.” Hmm.. somehow this revelation.. that “conservation” is a “use” lay unrevealed for lo these 47 or so years. So let’s start with the definition of conservation:

Conservation

The proposed rule would define “conservation” in the context of these regulations to mean maintaining resilient, functioning ecosystems by protecting or restoring natural habitats and ecological functions…. Within the framework of the proposed rule, “protection” and “restoration” together constitute conservation.

That’s not what partner agency on intermingled private lands, the Natural Resources CONSERVATION Service might mean by conservation.

Let’s check out what USDA means by the word “conservation”.

The protection, preservation, management, or restoration of natural environments and the ecological communities that inhabit them. Conservation is generally held to include the management of human use of natural resources for current public benefit and sustainable social and economic utilization.

Whoa! Major #3 (other federal agency) foul. Yes, says the BLM,  we want to work as partners, yes we want the public to be involved, but we can’t help but define commonly used words differently. Our behavior does not seem to match our words.  Our behavior seems to say “we want people to be confused about what we are trying to do.”

So a “conservation lease” is a protect and restore lease, not at all like the Conservation Stewardship Program at USDA..nor the Forest Service Conservation Finance Program (which is pretty interesting to check out).


Intact Landscape

means an unfragmented ecosystem that is free of local conditions that could permanently or significantly disrupt, impair, or degrade the landscape’s structure or ecosystem resilience, and that is large enough to maintain native biological diversity, including viable populations of wide-ranging species. Intact landscapes have high conservation value, provide critical ecosystem functions, and support ecosystem resilience.

That seems like any large tract of federal land.. “Permanently or significantly disrupt” it could be argued, I suppose that while oil and gas rigs are not permanent, they could be  “significant” and solar arrays and wind turbines could be decided to be permanent, but not “significant.”  So what’s a landscape?

Landscape

means a network of contiguous or adjacent ecosystems characterized by a set of common management concerns or conditions. The landscape is not defined by the size of the area, but rather by the interacting elements that are relevant and meaningful in a management context. Areas described in terms of aquatic conditions, such as watersheds or ecoregions, may also be “landscapes.”

So an entire ecoregion might be an intact landscape depending on judgments of “permanent” and “significant.” People might wonder who exactly will be making those judgments..

Land health: The idea is to take land health- a concept from the grazing program and apply it to renewable resources (should meet at the watershed scale). They want comments on how it will interact with non-renewable resources.

§ 4180.1 Fundamentals of rangeland health.

Standards and guidelines developed or revised by a Bureau of Land Management State Director under § 4180.2(b) must be consistent with the following fundamentals of rangeland health:

a) Watersheds are in, or are making significant progress toward, properly functioning physical condition, including their upland, riparian-wetland, and aquatic components; soil and plant conditions support infiltration, soil moisture storage, and the release of water that are in balance with climate and landform and maintain or improve water quality, water quantity, and timing and duration of flow.

(b) Ecological processes, including the hydrologic cycle, nutrient cycle, and energy flow, are maintained, or there is significant progress toward their attainment, in order to support healthy biotic populations and communities.

(c) Water quality complies with State water quality standards and achieves, or is making significant progress toward achieving, established BLM management objectives such as meeting wildlife needs.

(d) Habitats are, or are making significant progress toward being, restored or maintained for Federal threatened and endangered species, Federal proposed or candidate threatened and endangered species, and other special status species.

and related standards and guidelines to all renewable-resource management, instead of just to public-lands grazing. Broadening the applicability of the fundamentals of land health would ensure BLM programs will more formally and consistently consider the condition of public lands during decisionmaking processes. Renewable resources on public lands should meet the fundamentals of land health overall at the watershed scale. The proposed rule recognizes, however, that in determining which actions are required to achieve the land health standards and guidelines, the BLM must take into account current land uses, such as mining, energy production and transmission, and transportation, as well as other applicable law. The BLM welcomes comments on how applying the fundamentals of land health beyond lands allocated to grazing will interact with BLM’s management of non-renewable resources.

To implement the fundamentals of land health, the proposed rule directs BLM programs to use high-quality information to prepare land health assessments and evaluations and make determinations about the causes of failing to achieve land health. Such information is derived largely from assessing, inventorying, and monitoring renewable resources, as well as Indigenous Knowledge. The resulting data provides the means for detecting trends in land health and can be used to make management decisions, implement adaptive strategies, and support conservation efforts to build ecosystem resilience.

I’m not exactly sure what “renewable resources” are in this context, maybe someone from BLM could help out?

The BLM Proposed Rule I. Some General Observations

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I’m going to do a series of posts on the BLM proposed rule, don’t know how many yet. I was intrigued by a couple of things… first, the coverage by some was “the best thing since sliced bread” and by others “potential to kick out current users.”  Of course, some people think that kicking out current users is the best thing since sliced bread, so there’s that.  Then I happened to sit by some BLM retirees, who pointed out “we can already do this, and have done so.” In fact, they gave me all kinds of examples of conservation lease-like stories, which I am hoping to inveigle someone to write about (either for TSW or reporters) because they are stories that haven’t been covered as far as I know.

Anyway, I attended the Denver/Golden public meeting on the Proposed BLM Rule. There were folks from various other States (state government) there, and the folks from Utah Diné Bikéyah- those are just the folk I spoke with, not a random sample. I counted about 70 folks there.

The BLM Director and Nada Culver were there as was the State Director, Doug Vilsack. Career folks gave the presentation. We submitted questions on file cards, and they answered some. Then we broke up and there were lines for questions on different topics. I tried to overhear other peoples’ questions, but the acoustics made that fairly difficult. They said that the questions that weren’t answered would be answered in the online Q&A’s. I learned many things, including how to pronounce ACEC’s… ay cee eee cee’s.

The other thing they mentioned was that they had asked local managers to do sensing with their partners in addition to the formal meetings. It would be interesting to see how this is being carried out. Please comment if you’ve been involved.

It seemed like the audience, based on the questions, was curious about the rationale for this rulemaking. The argument from the BLM is that “we can manage better with these regs in place.” Questioners thought that many of the things in the rule were already being done. I heard a couple of answers “this is a framework” “it provides consistency” but my guess is that it’s protection-by rulemaking- to narrow the decision space of future administrations.  It would take time to undo a reg.. and groups would argue that it would be the end of life as we know it if the reg were removed.  I guess if that’s really true, they can’t say it out loud, and so that makes for fuzzy answers. It is 2023 and we all know what happens next year.

It seems to me that the Biden Administration is between a rock and a hard place.  If we think of politics as being about “rewarding your friends and punishing your enemies”, the Biden folks have two sets of friends with different goals.. one wants to “protect” federal land acres, and the other wants to cover federal lands with solar panels and wind turbines.  Both sides probably want to kick out oil and gas, OHVs and perhaps cattle grazing.  If we were logical about this.. when the Admin came in they could have set up a national program to pick out places for each. My guess is that we would find out it’s impossible to do 30×30 with protected areas and have the number of renewable installations and powerlines desired.  So perhaps the easiest thing for them was to kick the can down the road and have us hash it out place by place.

Here’s an example of rewarding your friends, from last year

Shortly after Secretary Haaland’s announcement, BLM posted an updated rent manual chapter, which adjusts downward the amounts charged to existing and new wind and solar energy projects located on public lands.1 BLM expects the revised rates to reduce bills by over 50 percent on average.

Now we know that those industries already get many regulatory and tax relief advantages as well.

And then there’s Monumentizing.

“The president’s actions today show that he is listening to communities and tribal nations that have been calling for the protection of natural and cultural resources and for safe, equitable access to more public lands,” Jennifer Rokala, executive director of the Center for Western Priorities, said in a statement. “But he still has a long way to go to reach the 30×30 goal.”

Now if you do the math, and you define “protection” as being in some kind of specially “protected” area, and you also have a goal of increasing wind, solar and transmission lines, there might not be enough land at all, let alone much left for the rest of us.

So one way of looking at this proposed regulation is “does it change who will be calling the shots on what uses will be favored?” Can the tools in it be used to divvy up land between “protection” interests and renewable corporate interests?  And some people are reacting in a non-trusting manner to assurances that their uses won’t be affected.  I have some ideas as to why they might not be trusting. This might be helpful during the next election cycle, and for the next Admin.

1. If the President goes after certain uses (most notably the Prez promising to end oil and gas leasing on federal lands), and then have a reg that you say “will have no impacts”; it’s going to be hard for people to trust you. The choices of political appointees and the organizations they came from speak for themselves, as folks on TSW have pointed out.  But that’s water under the proverbial bridge, so..

2. Focus on one thing. As this shows, it’s a three-part rulemaking. This reminds me a bit of the kitchen-sinkery MOG ANPR; one wonders if this is a new rule-making strategy..maybe people won’t find the parts they won’t like if you throw enough different ideas into the mix.

3. So you can’t/won’t make “wise” decisions without the reg?  Decisions now aren’t based on “science” nor “data”? This is a bit puzzling. Because I thought they always have been.. it also doesn’t place current employees nor the current Admin in a particularly good light.. are they making “unwise” decisions now? This does not sound right.. so doesn’t lead to trust.

Next post: Abstractions Run Amok

Cottonwood: Some Observations from the March 23, 2023 Hearing and a PERC Post

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I am not a fan of watching Congressional Hearings because there are many people quite full of themselves with various axes to grind, who waste our time blathering on about unrelated things or giving political speeches about why the other party is bad.   It would be more fun if the videos had a chat function and we could throw virtual flags on things  like “unnecessary pontificating” and “completely off the topic of this hearing”.  Of course, both sides do it. Congresswoman Kamlager-Dove, from LA (my native district) was filling in for Joe Neguse (from Boulder, Colorado) as the ranking member. She’s in her first term. On the House Natural Resources Committee. From LA. If I were Joe, I would ask Congressfolk with skin in the national forest game or some knowledge thereof to fill in for him at a hearing like this.. but that’s just me.

Anyway, I watched this one in March and picked out some interesting wonkish parts for you.

It’s fun to watch Representative Kamlager-Dove (with a unique pronunciation of “salmon”)  grill (so to speak) Chris French on Cottonwood. Starts at 1:50:32.  It did make me wonder whether short timeframes (11 days) in the Sierra for reconsultation might have to do with pressure from important Congressfolk in California?  Anyway, Rep. Kamlager-Dove cuts Chris off before he has time to explain his views.

Chris also says that at a recent Regional Forester meeting, Cottonwood was thought to be a #1 problem, and also something like “every little thing that diverts natural resource biologists and others holds up implementation of wildfire risk reduction projects.”

At about 2:05:56 Susan Jane makes some statements about Plans making final decisions “binding decisions in plan level documents.” “Off-road vehicle use is authorized in forest plan with no further authorization.” 2:06:21. I thought OHV use was authorized in “travel management” decisions, which tend to be separate from forest plans. For example, the PSICC has a travel management decision we’ve discussed previously, but its forest plan is from 1984.. after doing the travel management plan would they have to reconsult on the forest plan? How is winter travel different from summer travel?  If there are final decisions made in plans, wouldn’t it be better to strip plans of final decisions so you wouldn’t have to reconsult on them all the time?  Oil and gas leasing availability decisions, travel management decisions, and so on seem to do just fine outside the forest planning process.  It seems like they’re done when they’re needed (or forced to via litigation) not on some plan revision timeline which may put a given forest 10 or more years out.

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Here’s a blog post from PERC that summarizes some of Cottonwood:

This week, multiple forest management bills passed out of committee in the U.S. House and Senate with bipartisan support. One of the bills passed by both chambers offers a permanent fix to a controversial Ninth Circuit Court ruling known as Cottonwood. This tiny provision carries huge implications for conservation, impacting the speed at which the Forest Service can mitigate the wildfire crisis and restore healthy forests.

What is Cottonwood? 

The ruling requires the Forest Service to halt forest restoration projects throughout a forest whenever a new species is listed, critical habitat is designated, or other new information is discovered about a species in that forest. The projects can’t proceed until the Service consults with the Fish and Wildlife Service over whether to change its overarching forest plans, a slow and expensive process.

Pausing projects to protect vulnerable species may sound reasonable, but the reality is that this is a duplicative and distracting process. The Service already analyzes this new information before proceeding with specific projects, ensuring that no harm can come to species. The additional plan-level analysis is a duplicative bureaucratic obstacle.

And the pause itself is no small matter.

Consider the case of the Bozeman Municipal Watershed Project in PERC’s headquarters in Bozeman, Montana. The project was intended to create critical fire breaks and insulate Bozeman’s watershed from wildfire risk, but the urgently needed restoration work was delayed by 18 years. Once one suit filed under the Cottonwood precedent was resolved, another would be put forth, creating delay after delay and leaving Bozeman’s drinking water vulnerable to a wildfire.

Such examples explain why the Obama administration said the Cottonwood ruling would “cripple” the Forest Service.

How can this hurdle be addressed?

A temporary legislative fix was put in place in 2018, but it expired in March 2023. With Cottonwood left unchecked, Forest Service Deputy Chief Chris French estimates projects could grind to a halt in 87 forest plans across the West. According to French, completing duplicative analysis for all of these forest plans would take “somewhere between 5 and 10 years and tens of millions of dollars.” With an 80-million-acre forest restoration backlog, that’s time and money the Forest Service does not have.

That’s why this bipartisan congressional action is so welcome. It’s past time Congress establishes a permanent fix for Cottonwood.

“Wildfires move fast, and they don’t wait around for bureaucracy that’s slow,” notes PERC CEO Brian Yablonski. “The bipartisan Cottonwood fix will foster more resilient forests, nurture healthy wildlife habitat, and play a critical role in tackling the wildfire crisis. With larger, hotter wildfires fueled by a backlog of forest restoration projects, it’s critical we remove needless and redundant obstacles to this urgent conservation work.”

PERC stands with other conservationists in thanking Sen. Steve Daines (R-MT) and Chairman Joe Manchin (D-WV) in the Senate and Chairman Bruce Westerman (R-AR) and Rep. Matt Rosendale (R-MT) in the House for their leadership in protecting our forests.

What happens next? 

Now that the bills have committee approval, they move forward for votes by the entire House of Representatives and Senate, after which they go to the President for his signature.

PERC will continue to support this bipartisan effort and move us farther down the path to fixing America’s forests.

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The FS testimony for the above hearing includes the fact that the two circuits disagree.  Since I live in 10th circuit territory, I thought that that was worth mentioning.

The pair of Ninth Circuit court decisions, commonly referred to as Pacific Rivers Council (PRC) and Cottonwood, which held that a new ESA listing of a species or critical habitat designation required the Forest Service to reinitiate consultation on approved land management plans because either the plan was an “ongoing action” (PRC) or because the agency retains discretion to authorize site–specific projects governed by the land management plan (LMP) (Cottonwood), have no basis in the ESA or its implementing regulations. LMPs provide general management direction for an entire national forest or grassland. This direction is then integrated into projects, which normally requires a second decision and ESA consultation to dictate what on–the–ground actions can be taken. A Tenth Circuit decision (commonly known as Forsgren) reached a different conclusion than the Ninth Circuit’s conclusions in Cottonwood, and instead held that the Forest Service did not need to reinitiate consultation on an approved plan with the Services because LMPs are neither ongoing nor self–executing actions for purposes of the ESA.

I don’t know why we would assume that the 9th Circuit is right and the 10th Circuit is wrong. In case you’re curious,there are many National Forests outside the 9th Circuit.

 

TGIF TSW Random News Roundup

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F to WaPo on State Farm in California Story: A to  E&E News

WaPo is not the only one, but their “analysis” (?) tells us it’s all about climate change.  But no mention of California’s unusual legal requirements, and no skepticism about the insurance companies potentially using climate to pad their estimates.    Best coverage so far goes to E&E News, and special kudos to them for making that article public.

Pielke, Jr. on Hurricanes

In the WaPo article, they pivoted to hurricanes.  Which reminds me that Roger Pielke, Jr. had a Substack piece on hurricanes this week that rounded up some current information. There are National Forests that are affected by hurricanes, so it is part of TSW country.

Still No Articles on “Feds are already allowing proponents to fund NEPA”

I have seen many more articles on the Debt Ceiling NEPA changes, but none so far that address this.  If you have read one, please link in the comments.  Curious minds need to know..are all other agencies able to do this? What’s their track record.

Write Legislation  in Haste, Litigate at Leisure

Speaking of the Debt Ceiling NEPA, I asked Dan Farber of UC Berkeley Law, about some of Center for Biological Diversity’s claims.  Many thanks to him for answering my qeustions!  He wrote a post exploring some of the text (NEPA ites will find the entire post interesting)  it and concluded:

In addition, given the rest of the garbled language, it’s not clear whether dropping the word “potential” was just another glitch, or was done to make the definition more concise, or was really intended to change the meaning. It’s equally unhelpful to compare the rule to the current, post-Trump version, which is much simpler, does drop potential, but also revamped the rule in other ways different from the new bill.

I suppose the bill might be amended somewhere along the way to fix the problem. But given the lack of time, and the dangers of opening up the bill to changes, I’m not sure whether that’s at all feasible. A later “technical corrections” bill would also be possible, but I think Democrats would oppose any effort to redraft the section in a way that limited the application of NEPA, while Republicans might oppose any fix that restored the current status quo as a back step,

In the absence of a quick legislative fix. I predict lots of fun litigation. Maybe the upshot will be to ignore the definition entirely and only give effect to the exclusions. In the meantime, however, all that litigation is only going to increase delays, which is ironic given that the whole purpose the NEPA changes is supposed to be speeding up the process.

A final thought: I stumbled into this drafting disaster by chance. How many similar glitches are lurking in the bill?  The moral may turn out to be: “Draft in haste. Repent at leisure.”

Red line Analysis of Debt Ceiling NEPA by Bipartisan Policy Center.

Thanks to Xan Fishman..”We don’t need legislative doomerism any more than we need climate doomerism.”

Here’s a link to a red line analysis and it also points to BPC and One Federal Decision recommendations.

 Legislators (or Their Staff) Who Cry Wolf

There’s a reason The Boy Who Cried Wolf is such a longstanding and popular story. Aesop lived between 620 and 564 BC and the story is still popular today. Question: is there any change to  NEPA or to its implementing regulations that according to Grijalva’s office, does not “gut environmental laws”?  How would we know what a real “gutting” would look like, if everything is “gutting?”  What other adjectives might be left on the table for future use? Here’s their “fact sheet”. It’s interesting to contract with the Bipartisan Policy Center and Dan Farber’s analyses.

No Wolves for You, Colorado

Perhaps this has been resolved, but there is a complex story behind Colorado’s initiative based wolf reintroduction program. It wasn’t supported by CPW wildlife managers, but thrust upon them.  Then the state legislature and the Governor got involved in the 10j question. This article in Colorado Politics by Marianne Goodland was over my head about the 10j stuff so good for her, unless Jon and other experts think she missed something.

Context: wolves have been migrating down from Wyoming anyway.  So why reintroduce? Many of us asked the same question, but it was on a ballot initiative.

Back to reintroduction. Below is from an article in gohunt.com by Kristen Schmitt.

The draft wolf reintroduction plan includes sourcing wolves from Idaho, Wyoming and Montana; however, that’s where it gets a bit tricky. In fact, language within the plan states that “[s]pecific agreements regarding donor populations have been discussed with these three states but final agreements have not yet been concluded.”

But that doesn’t seem to be true.

“We have not been and are not in conversations about moving wolves to another state. To be clear, we have not talked and are not talking to Colorado about moving wolves,” said Greg Lemon, a spokesperson for Montana Fish, Wildlife and Parks.

Idaho noted that “the states have not had any formal conversations” and Wyoming Gov. Mark Gordon is against Colorado’s reintroduction effort, which means that they don’t plan on relocating any wolves to the Centennial State. Period.

“Our current wolf management plan is working, and it works because it is designed to manage wolves in biologically and socially suitable habitats and to keep wolves out of areas of the state where conflicts would be highest,” said Gordon. “Our border with Colorado is an unsuitable area for wolves, and that would mean more human conflicts. Resolution of conflicts are almost always deadly to wolves.”

Oregon and Washington are suggested as possible alternatives though no formal discussions have occurred, according to Channel 9 News. The same goes for Utah.

“There are currently no established wolf packs in Utah, which would likely not make us a viable candidate for providing wolves,” said a Utah Division of Wildlife Resources spokesperson.

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Feel free to add your own “news of the week” in the comments.

State Farm and California Insurance-E&E News Story

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When I first read about California and State Farm wanting to get out of the market, it was couched as being about climate change and wildfire.  Well, being a native Californian, I thought of downtown San Fran and LA, and Palm Desert and Barstow, and thought “huh, can’t be about wildfire.”  I guess insurance companies want to use climate models to set rates.. I’d guess they’d prefer RCP 8.5 as well.  I wouldn’t blame them.  1. Scientists tell us, 2. It’s good for business, 3. Let’s go with it!

Anyway, I thought this story was more holistic about the many factors involved, which not surprisingly, has to do with state regulation. The story is from E&E news and isn’t paywalled.

For property insurers, Prop 103 has made it almost impossible to set premiums based on computer models that project future risks including climate impacts, said Mark Sektnan, vice president for state government relations at the American Property Casualty Insurance Association. That’s because Prop 103 requires modeling used by insurers to be made public, which modeling companies want to avoid, Sektnan said.

Instead, insurers are setting rates based on their losses over the preceding 20 years.

“It’s a little bit like driving your car using the rearview mirror when your windshield is right there in front of you,” Sektnan said.

When insurers analyze the past 20 years to set rates, they are not fully capturing recent increases in California’s wildfire risk as climate-driven hotter temperatures have made the state’s forests and grasslands drier and more combustible, experts say.

For example, in the 20 years from 2003 through 2022, wildfires burned an average of 1 million acres a year in California, according to an E&E News analysis of data from the state Department of Forestry and Fire Protection.

But in the six years from 2017 through 2022, California wildfires burned an average of 1.8 million acres a year and destroyed or damaged nearly 51,000 structures in total.

“The problem in California is that the risk is changing pretty quickly, especially if you think over two decades. Two decades is just not fit for the problem,” Wara said.

Nancy Watkins, a California-based principal at Milliman insurance consultants, said the retrospective method “is an extremely simple rate-making model that in practice has totally failed to anticipate the growing risk in California due to factors like housing growth in high-risk areas, vegetation build up, the effect of climate change on longer fire seasons, hotter temperatures, drier air.”

“None of that is factored into a backward-looking formula,” Watkins added.

I don’t know what “making modeling public” entails versus having insurance regulators review the models, but it seems like an area that could lead to a potential lack of trust.

Three national forests in Colorado receive nearly $47 million for wildfire barriers: Colorado Sun

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I’ve got more on NEPA and the debt ceiling but everyone’s probably tired of that.. so here’s a nice article by reporter Shannon Mullane of the Colorado Sun on Colorado getting $ for PODs and fuel breaks.

On May 4, Secretary of Agriculture Tom Vilsack visited Durango, roughly an hour west of Pagosa Springs, to announce a total of $63 million for fuel breaks from the $1 trillion Bipartisan Infrastructure Law, passed in 2021, and the $700 billion Inflation Reduction Act of 2022, which reflect a historic amount of investment, he said. The funds will go to Colorado, Montana, Oregon, South Dakota and Wyoming.

According to the story, if there is 63 mill total and Colorado is getting 46.7 mill. that’s about 74% of the $ that are supposed to go to five states.  Maybe the other states got more of the other BIL and IRA funding? Sure, we’re special (and Secretary Vilsack’s son was hired from the State government to be BLM Director) but are we that special?

The article discusses PODs and how they’re developed. There’s also a discussion of the importance of protecting municipal water supplies.

That’s what the San Juan Headwaters Forest Health Partnership, a collection of land managers, government officials and community partners working across sectors and jurisdictions, was discussing during a 2018 tour along Fourmile Road.

Members of the incident management team develop a plan of attack in response to the Plumtaw fire, which started May 17, 2022, north of Pagosa Springs in Archuleta County. (U.S. Forest Service, Contributed)

The group mapped out vegetation types, terrain and the locations of roads, rivers and rocky turf — the same process used throughout San Juan National Forest and some nearby lands to identify areas where crews would have the best chance of containing a potential fire, called potential operational delineations, or PODs.

“You get all the fire experts in a room and say, ‘Hey, we don’t have a fire now, but if we hypothetically had fires all over this landscape, piece by piece, where would you start?’” Lawhon said.

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On the first anniversary of the fire, the fuel break project was an important “invisible success,” said Guinn, who helped put together a documentary about the fire for the headwaters partnership. The fact that a community group identified it as a way to protect municipal water supply — and that the Forest Service jumped in to partner on the project — was significant, she said.

“This fire could have turned into something that was a much more challenging event for our community down the line,” Guinn said. “But because we had done some pre-planning, and a variety of other factors came together, we were able to be prepared as a community and help our emergency responders help us.”

With the influx of funding, other fire mitigation and fuel break projects are set to start as soon as this summer, said the Forest Service’s Lawhon. From Dolores to Pagosa Springs, no watersheds that the San Juan National Forest works in are owned by a single entity. The POD units, which have been mapped across the region, break the landscape into manageable chunks and help agencies work across complex jurisdictional boundaries.

It’s a whole-system approach that could make a significant difference in how effectively communities prepare for an increasingly long and intense wildfire season, Lawhon said.

“You have to do this cross-boundary, multipartner approach, or you won’t be successful,” he said.

It’s interesting to think about where we read about PODs and where not.. is everyone delineating them across the country? And for Jon, do they/should they require plan amendments?

Dan Farber Weighs in on NEPA Permitting Reform

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We had a good discussion here with LM and Jon, but I thought I’d post this one.

UPDATE: I heard back from Dan Farber on the “do these changes apply to NEPA for everything” question.. here is what he said.

 So far as I can tell, the NEPA-related provisions are all amendments to NEPA itself and aren’t limited to particular types of projects. Most of the changes seem pretty consistent, however, with caselaw and CEQ regs. So except in a few places, I don’t think they’re going to have substantive impact. The deadlines, page limits, and lead-agency requirements may make a difference at the operational level, however.

Here’s Dan Farber of Berkeley Law’s take .. he seems pretty level-headed on this, which is perhaps to say, I tend to agree with him :).

The original version of NEPA is very brief. It lacks definitions or any indication of the process to be used in deciding whether a project requires an impact statement. Over the years, those gaps have been filled in by a combination of court decisions and guidelines from the Council on Environmental Quality (CEQ) in the White House. In general, the FRA version of the Builder Act writes in the statute the rules worked out by courts and the CEQ.

There are some exceptions, however, where the changes may be more significant. Here are some significant changes that have been identified in discussions by legal scholars:

  • Extraterritoriality: No environmental review is required for actions or decisions with impacts entirely outside the U.S., such as funding a dam in another country. This appears to be a more rigid standard than courts have applied.

  • A somewhat more restrictive rule about how much control a federal agency has to have over a project before an environmental review is required.

  • A government agency considering a project can outsource preparation of the environmental review documents to the project sponsor, though the agency is required to exercise oversight. In practice, this would mean having the project sponsor pay for an independent consulting firm to do the work.

  • Page limits 150 or 300 pages depending on complexity and deadlines (2 years) for environmental impact statements. (Who uses page limits anymore instead of word counts?) One effect could be to discourage the use of graphics and maps that might actually make the statement much more understandable to the public.

  • Providing for appointment of a lead agency to be responsible for the impact statement when multiple agencies have jurisdiction over parts of the project. This is probably a good idea, but probably could have been implemented administratively even without a statute.

…..

How significant are the NEPA changes?

On the one hand, the NEPA provisions of the FRA seems fairly innocuous, and it may be helpful to have the rules clarified by statute. That provides a clear anchor point for judicial decisions and puts some limits on how much particular presidential administrations can play games with the statute. Thus, putting the rules into statutory form provides a bit of protection against the likes of Trump or Alito trying to gut longstanding practices.

SF- One person’s “playing games with the statute” or “gut longstanding practices” could be another’s “clarifying” such as BLM’s proposed rule and MUSYA. It’s all in your perspective..

On the other hand, it’s not clear how much the NEPA changes will actually speed up permitting. Deadlines for agencies to act sound good but experience has shown they’re very hard to enforce. The page limit is meaningless, since all the extra stuff will just go into the appendices.

In terms of speeding up permitting, the most promising change may be the ability to get applicants to pay for outside experts to draft the impact statement. The environmental review process is often slow simply because agencies don’t have the budget or staff to get it done faster. Outsourcing could really speed things up, but it will be crucial for agencies to exercise serious oversight. Otherwise, companies will find friendly consultants to paper over any environmental problems.

Overall, the NEPA provisions don’t seem to pose major problems. Or at least, none that we’ve been able to find so far. From an environmental perspective, that’s probably about the best we could expect from the fraught negotiations over the debt ceiling.

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My thoughts..

It seems like agency NEPA practitioners were not involved in many of these policy discussions. Wouldn’t they be the first people you would ask for ideas? Oh well.

I agree with Dan that page limits are pretty meaningless.

Don’t we already have the ability to have applicants pay for NEPA? I seem to remember a project (I’m sure Mike remembers) I used to call “Reasonable Access for Unreasonable People” with TetraTech as the contractor.  In my mind, and with decades of experience, it’s much easier and less time-consuming  to review someone else’s work than to do the initial work yourself. As long as the agency calls the shots on analysis, that should be the determining factor.  As I recall, the applicant was not allowed to communicate directly with the contractor.. anyway perhaps someone out there has more experience.  My point being 1) maybe that’s not as new as some people think and 2) maybe there are different ways of doing it, some that have worked out better than others.

It’s great to make a lead agency more accountable, if that would actually work.. except that when agencies disagree.. will only the lead agency have skin in the game?

It continues to sound as if these NEPA changes are more general than just energy projects, so I’m trying to find out more.

It also seems to me like OGC and FS NEPA folks have generated something on “what this means for the FS” which would be much better than my ramblings.. so if you run across this, please email me.

Finally.. a bit of cross-agency context.. one agency of DOI, the BOEM, used an EA for a 30 million acre swath of the Gulf of Mexico for wind energy, according to Greenwire.

House Bill and Permitting Reform

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Anyone not doing something more enjoyable this weekend might want to take a look at this draft House Bill, specifically for us, “permitting reform”. I couldn’t spend much time on it.. but my first take was 1) it isn’t specific to energy permitting (could be wrong, so many clauses, so little time!) and 2) it’s mostly about getting federal agency practitioners to speed up- not so much about other sources of possible slowness, and 3)

‘SEC. 106. PROCEDURE FOR DETERMINATION OF LEVEL OF
11 REVIEW.
12 ‘‘(a) THRESHOLD DETERMINATIONS.—An agency is
13 not required to prepare an environmental document with
14 respect to a proposed agency action if—
15 ‘‘(1) the proposed agency action is not a final
16 agency action within the meaning of such term in
17 chapter 5 of title 5, United States Code;

I wonder whether that might apply to NFMA plans. Hopefully someone will have time to take a gander at all this. Maybe so much has been negotiated that the changes are relatively meaningless (other than shortening NEPA docs and accountability for timelines). I’d appreciate others’ thoughts on this (plus links to others’ analyses).

Questions for Legal Folks on the Fire Retardant Order

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Here’s (5-26-2023) a link to the order.. the FS has to work with the EPA and apparently needs to check in with the judge regularly as to how it’s progressing.

Some people have asked questions, to which I do not know the answer. I know that there are highly knowledgeable people (including a/the plaintiff) so hopefully we can get all our questions answered.

1. This is a Forest Service case, so it doesn’t seem to apply to BLM or other federal lands (?). Is it the airplane or the landowner that controls? So States with airplanes/retardant don’t need permits? Or perhaps they will also be incorporated somehow in the new permitting process (if they want to be?). And shared resources over interlocking ownerships (common in many places) sounds like the Nightmare on Checkerboard Street.

2. The ruling only applies to some states (Oregon, California, Montana, Idaho, Wyoming, Colorado, Nevada, Arizona, New Mexico, and Alaska) also,apparently not Washington nor Utah, and none of the Eastern, Midwestern or Southern states. It seems like this would be very difficult for the FS to keep track of. Perhaps this is an example of lawsuits don’t always lead to coherent policy outcomes.

3. Since some of these releases are accidental, will the EPA just estimate how many accidents have been happening and permit that.. or require some kind of compensatory mitigation? Will the proposed Fed/State regulatory approach be subject to rulemaking and public comment? Or is that all unknown at this point?

4. Mr. Wuerthner’s declaration seems important. Is this the “usual suspect” Wuerthner? Does someone have a copy of his declaration? It might be interesting.

Here are a few paragraphs about the injunction:

FSEEE has not offered sufficient evidence on the hardships to the parties and has failed to demonstrate that the public interest would not be disserved by a permanent injunction. The USFS explains that the 213 recorded intrusions only occurred where it was necessary “to protect human life or public safety (23intrusions) or due to accident (190 intrusions).” (Doc. 12 at 9.) Although the injunction would presumably allow the USFS to continue to aerially deploy fire retardant, it is unclear how the agency would proceed or if the agency could completely avoid future CWA violations. Thus, the requested injunction could conceivably result in greater harm from wildfires—including to human life and property and to the environment—by preventing the USFS from effectively utilizing one of its fire fighting tools.

Although FSEEE claims that fire retardant is an ineffective tool in fighting wildfires, (Doc. 24 at 9), this fact is disputed, (see Docs. 8-1, 8-2). Additionally, although FSEEE has presented possible solutions that would allow continued use of retardant while reducing accidental discharges, such as a 600-foot buffer requirement, (Doc. 24 at 10), it has failed to demonstrate that such solutions would
actually be effective from either parties’ perspective. Moreover, FSEEE has not addressed how the injunction would be enforced, which would itself create a significant burden for both parties.

And of course both the FS and EPA have many other things on their plates- and tell us they are overwhelmed by work and are having trouble hiring people.. in the FS’s case actually fighting fires, spending IRA and BIL money, and battling the climate emergency while writing MOG rules and plan revisions.I’ve described the EPA lack of capacity and the bipartisan bill here. This would be an idea place for the separation of powers to kick in, IMHO.