United States Department of the Interior OFFICE OF THE SECRETARY Washington, DC 20240 IN REPLY REFER TO: 7202.4-OS-2018-00249 October 31, 2019 Via email: sara.creighton@americanoversight.org Sara Creighton American Oversight 1030 15th Street, NW (B255) Washington, DC 20005 Re: American Oversight v. U.S. Department of the Interior, 1:18-cv-00534 Dear Ms. Creighton: On November 1, 2017, Mr. Austin Evers of American Oversight filed a Freedom of Information Act (FOIA) request seeking the following: 1. All calendars or calendar entries for any of the following individuals between the date of January 20, 2017, to the date a search is conducted, including any calendars maintained on behalf of these individuals (e.g., by an administrative assistant or a scheduler): a) b) c) d) e) Secretary Ryan Zinke Deputy Secretary or Administrator to Secretary Zinke James (Jim) Cason, Associate Deputy Director Scott Hommel, Chief of Staff Deputy Chief of Staff to the Chief of Staff, Scott Hommel 2. Any calendars maintained for the Secretary’s Conference Room, and the Deputy Secretary or Administrator’s Conference Room. Mr. Evers’ request was received in the Office of the Secretary FOIA office on November 1, 2017, and acknowledged on November 8, 2017. We are writing today to provide a partial response to Mr. Evers’ request. Additional releases will be provided under separate cover. We have enclosed 5 files consisting of 223 pages. Of those 223 pages, 123 pages are being released in full, and 100 pages contain redactions as described below. Portions of the enclosed documents have been redacted pursuant to Exemption 5 of the FOIA (5 U.S.C. § 552 (b)(5)) under the following privileges: Attorney Client Ms. Sara Creighton 2 Attorney Work-Product Deliberative Process Exemption 5 allows an agency to withhold “inter-agency or intra-agency memorandums or letters which would not be available by law to a party... in litigation with the agency.” 5 U.S.C. § 552(b)(5). As such, the Exemption 5 “exempt[s] those documents... normally privileged in the civil discovery context.” National Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). The exemption incorporates the privileges that protect materials from discovery in litigation. These privileges include deliberative process, confidential commercial information, attorney work-product, and attorney-client. See id.; see also Federal Open Market Committee v. Merrill, 443 U.S. 340, 363 (1979) (finding a confidential commercial information privilege under Exemption 5). Attorney-Client Privilege The attorney-client privilege protects “confidential communications between an attorney and his client relating to a legal matter for which the client has sought professional advice” and is not limited to the context of litigation. Mead Data Cent., Inc. v. United States Dep’t of the Air Force, 566 F.2d 242, 252-53 (D.C. Cir. 1977). Moreover, although it fundamentally applies to confidential facts divulged by a client to his/her attorney, this privilege also encompasses any opinions given by an attorney to his/her client based upon, and thus reflecting, those facts, as well as communications between attorneys that reflect confidential client-supplied information. See Elec. Privacy Info. Ctr. v. United States Dep’t of Homeland Sec., 384 F. Supp. 2d 100, 114-15 (D.D.C. 2005). We reasonably foresee that disclosure would harm an interest protected by exemption 5. The portions of these documents that have been withheld pursuant to the attorney-client privilege of Exemption 5 constitute confidential communications between agency attorneys and agency clients, related to legal matters for which the client sought professional legal assistance and services. Public dissemination of them would most certainly have a chilling effect on communications between agency clients and attorneys. Attorney Work-Product Privilege As incorporated into Exemption 5, the attorney work-product privilege protects from disclosure any materials prepared by or for a party or its representative (including their attorney, consultant, surety, indemnitor, insurer, or agent) in anticipation of litigation or for trial. See Judicial Watch, Inc. v. United States Dep’t of Justice, 432 F3d 366, 369 (D.C. Cir. 2005). The privilege applies once specific claims have been identified that make litigation probable; the actual beginning of litigation is not required. See Hertzberg v. Veneman, 273 F. Supp. 2d 67, 75 (D.D.C. 2003). Its purpose is to protect the adversarial trial process by insulating litigation preparation from scrutiny, as “[i]t is believed that the integrity of our system would suffer if adversaries were entitled to probe each other’s thoughts and plans concerning the case.” Coastal States Gas Corp. v. United States Dep’t of Energy, 617 F.2d 854, 864 (D.C. Cir. 1980). The privilege extends to administrative, as well as judicial proceedings. See Exxon Corp. v. United States Dep’t of Energy, 585 F. Supp. 690, 700 (D.D.C. 1983). Once the determination is made that documents are protected from disclosure by the attorney work-product privilege, the entire contents of those documents are exempt from disclosure under FOIA. See Judicial Watch, 432 F3d at 370-71. Ms. Sara Creighton 2 We reasonably foresee that disclosure would harm an interest protected by exemption 5. The portions of these documents that have been withheld pursuant to Exemption 5 under the attorney work-product privilege consist of notations and comments made by Department of the Interior attorneys in reasonable anticipation of litigation. As such, they contain conclusions, opinions, and recommendations of agency attorneys and are being withheld under the attorney work-product privilege of Exemption 5. Deliberative Process Privilege The deliberative process privilege “protects the decisionmaking process of government agencies” and “encourages the frank discussion of legal and policy issues” by ensuring that agencies are “not forced to operate in a fishbowl.” Mapother v. United States Dep’t of Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993) (citing Wolfe v. United States Dep’t of Health & Human Services, 839 F.2d 768, 773 (D.C. Cir. 1988)). Three policy purposes have been advanced by the courts as the bases for this privilege: (1) to encourage open, frank discussions on matters of policy between subordinates and superiors; (2) to protect against premature disclosure of proposed policies before they are finally adopted; and (3) to protect against public confusion that might result from disclosure of reasons and rationales that were not in fact ultimately the grounds for an agency’s action. See Coastal States Gas Corp. v. United States Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). The deliberative process privilege protects materials that are both predecisional and deliberative. Mapother, 3 F.3d at 1537; Access Reports v. United States Dep’t of Justice, 926 F.2d 1192, 1195 (D.C. Cir. 1991); Vaughn v. Rosen, 523 F.2d 1136, 1143-44 (D.C. Cir. 1975). A “predecisional” document is one “prepared in order to assist an agency decisionmaker in arriving at his decision,” and may include “recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency.” Maricopa Audubon Society v. United States Forest Service, 108 F.3d 1089, 1093 (9th Cir. 1997). A predecisional document is part of the “deliberative process” if “the disclosure of [the] materials would expose an agency’s decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform its functions.” Dudman Communications Corp. v. Department of the Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987). The deliberative process privilege does not apply to records created 25 years or more before the date on which the records were requested. We reasonably foresee that disclosure would harm an interest protected by exemption 5. Those portions of the documents that have been withheld pursuant to the deliberative process privilege of Exemption 5 are both predecisional and deliberative. They do not contain or represent formal or informal agency policies or decisions. They are the result of frank and open discussions among employees of the Department of the Interior. Therefore, their content has been held confidential by all parties. Public dissemination of this information would have a chilling effect on the agency’s deliberative processes; it would expose the agency’s decision-making process in such a way as to discourage candid discussion within the agency and thereby undermine its ability to perform its mandated functions. Ms. Sara Creighton 2 Portions of the enclosed documents have been redacted pursuant to Exemption 6 of the FOIA (5 U.S.C. § 552(b)(6)) because they fit certain categories of information: Mobile Phone Numbers Personal Information Exemption 6 allows an agency to withhold “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” The courts have held that the phrase “similar files” involves all information that applies to a particular person. Hertzberg v. Veneman, 273 F. Supp. 2d 67, 85 n.11 (D.D.C. 2003). To determine whether releasing requested information would constitute a clearly unwarranted invasion of personal privacy, we are required to perform a “balancing test.” This means that we must weigh the individual’s right to privacy against the public’s right to disclosure. (1) (2) (3) First, we must determine whether the individual has a discernable privacy interest in the information that has been requested. Next, we must determine whether release of this information would serve “the public interest generally” (i.e., would “shed light on the performance of the agency's statutory duties”). Finally, we must determine whether the public interest in disclosure is greater than the privacy interest of the individual in withholding. The information that we are withholding consists of personal information, and we have determined that the individuals to whom this information pertains have a substantial privacy interest in it. Additionally, we have determined that the disclosure of this information would shed little or no light on the performance of the agency’s statutory duties and that, on balance, the public interest to be served by its disclosure does not outweigh the privacy interest of the individuals in question, in withholding it. Nat’l Ass’n of Retired Fed. Employees v. Horner, 879 F.2d 873, 879 (D.C. Cir. 1989). In summation, we have determined that release of the information that we have withheld would constitute a clearly unwarranted invasion of the privacy of these individuals, and that it therefore may be withheld, pursuant to Exemption 6. If you have any questions about our response to your request, you may contact Daniel Mauler, Assistant United States Attorney, by phone at (202) 616-0773 or by email at dan.mauler@usdoj.gov. Sincerely, Justin Davis Office of the Secretary DOI-17-0494-D-000001 DOI-17-O494-D-000008 ?Fl Informational for Scott Cameron Room 6641, Thursday, February 2, 2:00PM EST INFORMATION BRIEFING MEMORANDUM DA1E: FROM: SUBJECT: Janua1y 31, 2017 Brent R. Uilenberg, Chie( Teclmical Se1vices Division, Bra·eau of Reclamation, 970-248-0641 Upper Colorado River Endangered Fish Recove1y Program and San Juan River Basin Recove1y Implementation Program The pmpose of the memorandum is to provide infonnation on the Upper Colorado River Endangered Fish Recove1y Program and the San Juan River Basin Recove1y Implementation Program (Programs). BACKGROUND: The Programs were established lmder cooperative agreements in 1988 (Upper Colorado) and 1992 (San Juan). The shared goals of the two Programs are to recover populations of endangered fish species (lunnpback chub, bonytaiL Colorado pikeminnow, and razorback sucker) while enabling water projects to continue operations. Program actions provide Endangered Species Act (ESA) co1npliance for more than 2,400 federaL tnbaL and non-federal water projects depleting in excess of 3.7 million acre-feet of water annually. The Programs' paiticipants/stakeholders include the states of Colorado, New Mexico, Utah, and Wyoming; the Bra·eau of Reclamation, Western Area Power Administration, U.S. Fish and Wildlife Se1vice, Bra·eau of Land Management, National Park Se1vice, and Bra·eau of Indian Mfairs; Native American tnbes including the Jicarilla Apache , Navajo , Southern Ute Indian, and Ute MOlmta.in Ute Indian; environmental organizations; water users; and power customers. DISCUSSION: The Prograins ai·e ilnplementing actions to restore habitat, provide instreain flows, remove bai11ers to fish migration, prevent entrainment of fish into water diversions, stock endangered native fish, and remove problematic non-native fish. The Prograins ai·e broadly suppo1ted by diverse stakeholders and ai·e widely viewed as national examples of successfitl collaborative approaches to ESA cornpliance. All Program paiticipants ai·e actively engaged in irnplementing recove1y actions. As a resuh of these actions, progress is being made towai·d recove1y of the species. However, the existing schedules for down-listing and de-listing the fora· species may be optimistic. C1uent issues confronting the Prograins ai·e non-native fish controL consideration of down-listing actions for tln·ee of the fora· fish species (Colorado pikeminnow, razorback sucker, and hranpback chub), and the need for an extension to the existing authorizing legislation. In January 2013, the Endangered Fish Recove1y Prograins Extension Act of 2012 (P.L. 112672), which reauthorized federal fimding for the Programs, was signed. With this arnendment, fimding will continue through 2019 for base fimded activities (~ $8 million per year) using Colorado River Storage Project hydropower revenues. As required by the authorizing legislation, the Secretaiy of the Interior submitted a Repo1t to Congress in 2016 regarding the need to reauthorize the use ofhydropower revenues beyond 2019. Capital construction fimding using appropriated fimds is authorized tln·ough 2023 . The Prograins received $4,351 ,000 in approp1iated fimding for fiscal year· 2016 and $4,915,000 was requested for fiscal year· 2017. NEXT SlEPS • Continue to work with Program partners to recover the fora· endangered fish species thereby providing ESA cornpliance for federal and non-federal water proj ects in the Upper Colorado River Basin. DOI-17-0494-D-000016 Informational for Scott Cameron Room 6641, Thursday, February 2, 2:00PM EST INFORMATIO N/BRIEFING MEMOR ANDUM DAIB: FROM: SUBJECT: Janua1y 31 , 2017 Katrina Grantz, Chie( Adaptive Management Group , Bm·eau of Reclamation, 801- 524-3635 Glen Canyon Dam Adaptive Management Program (AMP) The pmpose of this memorandum is to provide information on the Glen Canyon Dam AMP. BACKGROUND: The AMP was implemented following the 1996 Record of Decision (ROD) on the Operation of Glen Canyon Dam to comply with consultation requirements of the Grand Canyon Protection Act (GCPA) of 1992 . The 20 16 ROD for the Long-Te1m Experimental and Management Plan confirmed the continuation of the AMP. The AMP provides an organization and process to ensm·e the use of scientific infonnat ion in decision making for Glen Canyon Dam operations and protection of downstream resOln·ces consistent with the GCP A. The AMP inchxles the Adaptive Management Work Group (AMWG) federal adviso1y committee, Secretaiy's Designee, Teclmical Work Group, U.S. Geological Smvey's Grand Canyon Monitoring and Research Center, and independent scientific review panels. Department of the Interior Regional Directors also fu.cilitate cotlltlllmication and cooperation within the AMP . The program is primarily fimded by hydropower revenues. A major role of the AMWG is to rnake rec01:nmendations to the Secretary of the Interior on darn operations and other rnanagement actions that will meet the objectives and goals of the AMP. DISCUSSION : A diverse group of 25 stakeholders comprises the AMP and each has a voice in fonnal recommendations . AMP stakeholders have divergent views on the inte1pretation of the GCP A, par1icu1arly with regard to how it rnay or may not arnend previous statutes related to the operation of Glen Canyon Dam Rigid legal viewpoints sornetimes stymie collaboration While each stakeholder represents their own interests, they also work together for the common good of protecting the ecosystem downstrearn from Glen Canyon Dam and meeting provisions of the GCP A, Endangered Species Act, National Historic Prese1vation Act, and other applicable federal laws. Adaptive 1nanage1nent is founded in monitoring, reseat-di, and scientific experirnentation It is a dynamic process where people of many talents and disciplines come together to rnake robust decisions with the aim of reducing lmce1tainty inherent in meeting resoln·ce management objectives. CmTently, effo1ts ar·e focused on improving the status of the endangered hmnpback chub and the conse1vation of fine sediments, most of which ar·e now retained in Lake Powe ll and not delivered to Grand Canyon National Park The hmnpback chub population in Grand Canyon was in decline in the 1990s, but has stabilized and increased since that tirne. The exact cause of the population increase is lmknOWil,but removal of non-native fisli, endangered fish translocation effo1ts, and recent drought-induced warmer dam releases likely have contributed. NEXT S1E PS • The Glen Canyon Dam AMP effo1t will continue to rnake progress in fonning partnerships arnong participants, understanding resom·ce issues, and experimenting with darn operations and other 1nanage1nent actions to better accomplish the intent of the ROD and GCPA. It is, of necessity, a long-te1m commitrnent. DOI-17-0494-D-000017 News Release RECLAMATION Managi,ngWaterin the West Commissioner's Office Washingt on, DC Media Contact: Peter Soeth, psoeth@usbr.gov 303-445-3615 For Immed iate Release : New WaterSMART Water Marketing Strategy Funding Opportunity Available from Bureau of Reclamation WASHINGTON - 1he Bm·eau ofRecla:rmtion is seeking applications for a new WaterSMART water 1rnrketing strategy fimding opportunity. Recla:rmtion is inviting states, Indian Tribes, ir.Tigation districts, water districts and other organizations with water or power deliver authority to cost-share with Recla:rmtion and develop a water marketing strategy to help prevent water-related conflicts and contribute to water sustainability. 1he funding oppo1tunity is available on www.grants.gov by searching for fi.mding oppo1ttmity annom ceme nt mnnber BOR- DO- 17-F0 14 . Applications are due by . Reclamation is making approximately $3 million available for ir.nplementing water marketing strategy grants md er this funding oppo1ttmity. The federal share of the total project cost will not exceed 50percent. Applicants can apply for funding in either of the two funding groups. In Fmiding Group I, up to $200,000 in federal fi.mds per award will be provided to develop water marketing strategies. These strategies must be co1npleted within two years with the applicants coooucting the outreach, planning aoo scoping activities. In Fmding Group II, up to $400 ,000 in federal fi.mds per award will be available for more advanced water strategies. These strategies must be co1npleted within three years and must inch1de developing proce dm·es aoo agreements needed to implement the water marketing strategy. Water marketing refers to the lease, sale or exchange of water or water rights, or vohmtary agreements governing water rights, water use or water management uooe1taken in accordance with state aoo federal laws, between willing paiticipants. Eligible applicants ai·e a state, Indian Tnbe, ir.1igation district, water district, or other organization with water or power delive1y authority. Applicants must also be located in the Western United States or tenitories as identified in the Recla:rmtion Act of 1902 . Those not eligible inch1de, but not lir. nited to, federal govennnen t entities, institutions of higher education and ir.idividuals . For more mfor:rmtion on this fi.mding oppo 1ttmity please visit www.usbr.gov/watersmart/wee g/wa ten nark eting. html ~ U.S. Department of the Interior \_ __ + -v I ~ Bureau of Reclamati on DOI-17-0494-D-000018 ### Reclamation is the largest wholesale water supplier in the United States, and the nation's second largest producer of hydroelectric power. Its facilities also provide substantial flood control, recreation, and fish and wildlife benefits. Visit our website at https://www.usbr.gov and follow us on Twitter @USBR. DOI-17-0494-D-000019 Bears Ears NationalMonument Proclamated Boundary Bears Ears NationalMonument lntertribalCoalition Boundary ) I '"( t, ,.) j_ --- '-:....~.~·,J ·-~, < r\ J ;J EMERY Bears Ears NationalMonument UPLI Boundary ·-~, 1 -------/2:;I ___ __ )-'c--~~ ~-----."'\... . ·_ 11'a• ~ r' ~ 'Y- tJ ' C;~ _, ~J ;,<-~ ,·- :....t~,'1 .i Hanksville • Hanksville ~i.~-.JJ I.',-, . .r ~ -'-··---.' l J ,·- J I_, • Hanksville WAYNE .~1(.., <.,I'\ -:.\ S,;::, I I , , I -· --- ---- ---------, EMERY ' !I \;· · ·-~, , •r::J r~ ,.) j_ --- '-:....~~·,J ·1 2,, ,._ f ) ;_) j_ --- '-:....~.~·,J EMERY March 13, 20 17 , --§ I l __j / '-' ,1' ·- ·1-..-~ / .... I '-: e J •_BearsEars ,....! i....-1 ,_. ____ ] ) JU A'N" ~F~l r ,.r-·..r·,-• r ·' r• - , i'-'t· ,-·r:-'· I , ~ . ,...J r· r. I ~ J . -~..., C..,• :,,-, l.,._,...:-- .,....... .~. ~'"''\._ , .. ( ·--~ ,J .._. c:::J Bears Ears Nationa l Monumen t Boundary D D D D Bureau of Land Managemen t Indian Reservation Military Reservat ions Nationa l Park Service D D D D Private Land State Land State Parks and Recrea tion State W ildlife Management Area D D D US Fish & W ildl ifeNationa l Wi ldlife Refuge US Forest Service US Forest Service Wi lderness Area • 0 I 5 10 20 Miles ~• DOI-17-0494-D-000020 I I Bears Ears NationalMonument March 3, 20 17 Utah 0 5 c::JBears Ears Nationa l Monumen t Boundary ~ Cultura l Areas D D BLM Natura l Areas BLM W ilderness Study 10 20 Miles ---••• Hole-in-the-Rock Trail Old Spanish Nationa l Historic Trail .... Fremon t Trai l Scen ic Byway -·-- American Discovery Trai l D D D D D Bureau of Land Management Indian Reservat ion Nationa l Park Service Private Land D D D D State Parks and Recreat ion State W ildlife Management US Forest Service US Forest Service Wi lderness State Land DOI-17-0494-D-000021 Bears Ears NationalMonument Boundary Comparison March 3, 20 17 f ast ~ C 51J r-~ ,.,; - : .~' ' ~ - --•--J·-·-' - Primitive Area 07 ~ 0 5 ,\ ~ 20 Miles ( ~ { Utah Anmna AP.ACHE NAVAJO c:::J Bears Ears Nationa l Monumen t Proc lamation Boundary (LJJUPLI Proposed Boundary ,- --- 1 lntertribal Coa lition Propose d 1___ _: Boundary D D BLM Natura l Areas BLM Wi lderness Study D D D D D Bureau of Land Management Indian Reservation Nationa l Park Service Private Land D D D D State Parks and Recreation State Wi ldlife Managemen t US Forest Service US Forest Service Wi lderness State Land DOI-17-0494-D-000022 AmeriCor s NCCC/Bureau of Land Mana ement Partnersh i The Bureau of Land Management (SLM) California, an agency of the U.S. Quantifiables 120,0-2016) Department of the Interior, manages over 15 million acres of public lands in California, nearly 15% of the state's total land area . Previously, individual Field Offices would submit applications to receive AmeriCorps NCCC teams to work in the areas of trail building and maintenance, fuels reduct ion, w ildlife protection and restoration, among others. After seve ral meetings with SLM staff at the ir State office in Sacramento, it was determ ined that both agencies could be more strategic and intentiona l about their work together by entering into a partnership. In 2011, AmeriCorps NCCC/Pacific Region signed a Memorandum of Understand ing (MOU) w ith the SLM. The partnership has resulted in: Improved efficie ncy and coordination: -Requests from Field Offices are stream lined through the SLM State Office , w ho coordinates where the team will be throughout the year. -NCCC assigns one, specialized team to SLM for the entire year. NCCC coordinates calls w ith all of the Field Offices who will receive the team , in order to stream line support and manage expectat ions. -SLM provides spec ialized gear and tools, plus techn ical training (chainsaw certificat ion, CPR training, plus others) to the team. .- Clear path to employment: -In addition to spec ialized tra ining, members of the team receive Specia l Hiring Status through the Public Lands Act, which allows a leg up in applying for jobs at the Department of Interior or the Forest Service. -SLM staff have the opportun ity to hire team members with field experience who they've had the opportunity to work with and mentor . The partnersh ip represents a true "win-win" DOI-17-0494-D-000023 for each agency . Next year , the program w ill add more environmental educat ion (i.e. Junior Ranger) to the team's wo rk in order to engage more young people in the great outdoors . Questionsto Explorein BreakoutSessions Breako ut Session 1- Comm o n Regio ns 1. What are t he advant ages and disadvantages of having common DOI regions? 2. What are the advantages and disadvantages of adopt ing common regions based upon ecosystems? 3. What changes would we need to anticipate / plan t o undertake an ex pedit ious, smooth t ransition to a common regiona l structu re? 4. What cit ies, w ithin you r common region, wou ld you recommend be considered as an eventua l DOI regiona l hub? Pick cities w ith reasona ble cost of liv ingwhe reyou and your staf f might enj oy living. Breakout Session 2 - Regional Leadership 5. What would be t he advant ages and disadvantages of esta blishing an Inter io r Regional Leader position w ithin each common region t o coo rdinate t he field activ it ies of DOI leadersh ip and st af f? 6. What duties and responsib ilit ies should the Int e rior Regional Leader be assigned? 7. What approaches could be used t o reconc ile po licy/ programmaticd ir ect ionfromAssistant Secretary's / Bureau Directo rs wh ile also em power ing an Inter io r Regional Leader t o prov ide leadersh ip o r reso lve conflicts w ithin the common region? Breakout Session 3 - ReorganizingStaff Resources 8. What "ope rationa l" versus "administra t ive" f unctions occur wi t hin your region? Try to pr ior it ize funct ions based upon mission impact, budget comm itmen t , and st af f resou rces requ ir ed. 9. What are t he advant ages and disadvantages of realigning and o rganizing ex isting agency regiona l and/ orfield st af f by funct ion? 10. What funct ions present the best opportun it ies t o adopt a "shared services " approach to ef fi cient, cost-effective field implement at ion of ou r DOI mission activit ies? DOI-17-0494-D-000024 Questions to Explore in Breakout Sessions Breakout Session 1 – Common Regions 1. What are the advantages and disadvantages of having common DOI regions? 2. What are the advantages and disadvantages of adopting common regions based upon ecosystems? 3. What changes would we need to anticipate/plan to undertake an expeditious, smooth transition to a common regional structure? 4. What cities, within your common region, would you recommend be considered as an eventual DOI regional hub? Pick cities with reasonable cost of living where you and your staff might enjoy living. Breakout Session 2 – Regional Leadership 1. What would be the advantages and disadvantages of establishing an Interior Regional Director position within each common region to coordinate the field activities of DOI leadership and staff? 2. What duties and responsibilities should the Interior Regional Director be assigned? 3. What approaches could be used to reconcile policy/programmatic direction from Assistant Secretary’s/Bureau Directors while also empowering an Interior Regional Director to provide leadership or resolve conflicts within the common region? Breakout Session 3 – Reorganizing Staff Resources 1. What “operational” versus “administrative” functions occur within your region? Try to prioritize functions based upon mission impact, budget commitment, and staff resources required. 2. What are the advantages and disadvantages of realigning and organizing existing agency regional and/or field staff by function? 3. What functions present the best opportunities to adopt a “shared services” approach to efficient, cost-effective field implementation of our DOI mission activities? Breakout Session 4 – Improving Interior 1. Ask each person in the breakout session to name three things that the Secretary has the power to do that would improve Interior in terms of processes, procedures, workplace environment, policies, and/or operations to benefit both employees and our customers, the American people. DOI-17-0494-D-000025 As a group, from the ideas that have been floated by individuals in the group, have the group identify its 5 highest priority ideas. The group’s spokesperson should be prepared to share the top 5 ideas at the plenary feedback session. DOI-17-0494-D-000026 DRAFT FY17 FNCS-CNCS National Service Proposal DOI-17-0494-D-000027 DOI-17-0494-D-000029 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** EO 12866_Financial Responsibility Requirements for the Hardrock Mining Industry_RIN 2050AG61_Final Rule_2017Nov1 ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 320 [EPA-HQ-SFUND-2015-0781; FRL-xxxx-xx-OLEM] RIN 2050-AG61 Financial Responsibility Requirements under CERCLA Section 108(b) for Classes of Facilities in the Hardrock Mining Industry Agency: Environmental Protection Agency (EPA) Action: Final Rule ___________________________ SUMMARY: The Environmental Protection Agency (EPA) is announcing its decision on its proposed regulations for financial responsibility requirements applicable to hardrock mining facilities that were published on January 11, 2017. EPA has decided not to issue final regulations because the Agency believes that final regulations are not appropriate. This decision is based on EPA’s analysis of its record developed for this rulemaking,(b) (5) Page 1 DOI-17-0494-D-000030 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** (b) (5) The decision not to issue final regulations will address the concerns of those federal and state regulators and members of the regulated community who commented that the proposed requirements were unnecessary and would, therefore, impose an undue burden on the regulated community. This decision also will provide assurance to state regulators who were concerned that the proposed requirements would be disruptive of state mining programs. This decision is based on the record for this rulemaking, and does not affect the process for sitespecific risk determinations, or determinations of the need for a particular CERCLA response, at individual sites, nor does this decision affect EPA’s authority to take appropriate CERCLA response actions. Decisions on risk under other environmental statutes would continue under those statutes. This final rule is the Agency’s final action on the January 11, 2017 proposed rule. FOR FURTHER INFORMATION CONTACT: For more information contact Barbara Foster, Program Implementation and Information Division, Office of Resource Conservation and Recovery, Mail Code 5303P, Environmental Protection Agency, 1200 Pennsylvania Avenue, NW, Washington, DC 20460; telephone (703) 308-7057; (email) Foster.Barbara@epa.gov; or Michael Pease, Program Implementation and Information Division, Office of Resource Conservation and Page 2 of 70 DOI-17-0494-D-000031 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Recovery, Mail Code 5303P, Environmental Protection Agency, 1200 Pennsylvania Avenue, NW, Washington, DC 20460; telephone (703) 308-0008; or (email) Pease.Michael@epa.gov. SUPPLEMENTARY INFORMATION: I. EXECUTIVE SUMMARY A. Purpose of the Regulatory Action B. Summary of the Major Provisions of the Regulatory Action C. Costs and Benefits of the Regulatory Action II. Authority III. Background Information A. Overview of Section 108(b) and other CERCLA Provisions B. History of this Rulemaking C. Recent Litigation under Section 108(b) D. Hardrock Mining 2009 Priority Notice E. Hardrock Mining January 2017 Proposed Rule IV. Statutory and Record Support for this Final Rule A. Statutory Interpretation B. Comments Regarding Appropriateness of Information Used C. Comments that EPA Failed to Consider Relevant Information D. Evidence Rebutting EPA’s Site Examples V. Decision to not Issue the General Facility Requirements of Subparts A through C in this Final Rule (b) (5) (b) (5) Page 3 of 70 DOI-17-0494-D-000032 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** VIII. Obstacles to Developing and Implementing Section 108(b) Financial Responsibility Requirements for Hardrock Mining Facilities A. Potential Disruption of State, Tribal, or Local Mining Programs B. (b) (5) C. (b) (5) D. Concerns Regarding Costs and Economic Impacts of the Proposed Rule I. EXECUTIVE SUMMARY A. Purpose of the Regulatory Action Section 108(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund, directs EPA to develop regulations that require classes of facilities to establish and maintain evidence of financial responsibility consistent with the degree and duration of risk associated with the production, transportation, treatment, storage, or disposal of hazardous substances. The statute further requires that the level of financial responsibility established to protect against the level of risk the President, in his discretion, believes is appropriate, based on factors including the payment experience of the Fund. The President’s authority under this section has been delegated to the Administrator of the Environmental Protection Agency for non-transportation-related facilities. 1 In a Federal Register notice dated July 28, 2009, 2 EPA identified the classes of facilities within hardrock mining 3 as the classes for which it would first develop financial responsibility 1 See Exec. Order No. 12580, 52 FR 2923 (Jan. 23, 1987). Identification of Priority Classes of Facilities for Development of CERCLA Section 108(b) Financial Responsibility Requirements, 74 FR 37213, July 28, 2009. 3 For purposes of this final rule, EPA includes within the term “hardrock mining” the facilities included in the definition of that term developed for purposes of the 2009 Priority Notice, that is, facilities that extract, 2 Page 4 of 70 DOI-17-0494-D-000033 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** requirements based on consideration of many factors, including factors unrelated to current risk, such as legacy contamination, and factors not demonstrating risk, in and of themselves, such as Toxic Release Inventory reports under section 313 of the Superfund Amendments and - Reauthorization Act (b) (5) On January 11, 2017, the Agency published proposed financial responsibility requirements applicable to hardrock mining facilities. In the proposal, EPA identified two goals of section 108(b) regulations -- to provide funds to address CERCLA liabilities at sites, and to create incentives for sound practices that will minimize the likelihood of need for a future CERCLA response. The proposal identified for public comment a range of options and supporting information, as described in the proposed rule preamble. 4 The proposed rule set forth, in proposed Part 320 subparts A through C, requirements for a comprehensive financial - responsibility program under section 108(b) (b) (5) that would be applicable to hardrock mining facilities as well as to future industry sectors for which requirements under section 108(b) are later developed. In addition, the proposed rule set forth, in proposed Part 320 subpart H, requirements specifically applicable to hardrock mining facilities. EPA provided information and analysis demonstrating releases and potential releases of hazardous substances at hardrock mining facilities. EPA also discussed the relationship of section 108(b) to other federal law and to state law. beneficiate, or process metals (e.g., copper, gold, iron, lead, magnesium, molybdenum, silver, uranium, and zinc) , and non-metallic non-fuel minerals (e.g., asbestos, gypsum, phosphate rock, and sulfur). 4 82 FR 3388, January 11, 2017. Page 5 of 70 DOI-17-0494-D-000034 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** EPA’s final action on the January 2017 proposed rule is a decision not to promulgate it. As explained below, EPA has reconsidered whether the rulemaking record supports the proposed rule in light of the information and data received through public comment. As a result of this reconsideration, (b) (5) - The Agency’s decision that a section 108(b) rule for the hardrock mining industry is not appropriate relies on the information submitted by commenters on two key points, which in combination demonstrate minimal risk at current hardrock mining operations: (1) the reduction in risks due to the requirements of existing federal and state mining programs and voluntary protective practices of current hardrock mining owners and operators, and (2) the reduced costs to the taxpayer resulting from effective hardrock mining programs and owner or operator responses. This final rule does not limit or restrict EPA’s authority to take a response action under CERCLA at any individual hardrock mining facility, including the currently operating facilities - described in (b) (5) of this final rule, and to include requirements for financial assurance Page 6 of 70 DOI-17-0494-D-000035 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** as part of such response action. The set of facts in the rulemaking record related to the individual facilities discussed in this final rule support the Agency’s decision not to issue financial responsibility requirements under section 108(b) for currently operating hardrock mining facilities, but a different set of facts could demonstrate a need for a CERCLA response at those sites. This final rule also does not affect the Agency’s authority under other authorities applicable at hardrock mining facilities, including the Resource Conservation and Recovery Act, and the National Environmental Policy Act. B. Summary of the Major Provisions of the Regulatory Action EPA is not requiring evidence of financial responsibility under section 108(b) at hardrock mining facilities in this action. Thus, there are no regulatory provisions associated with this final action. C. Costs and Benefits of the Regulatory Action EPA is not requiring evidence of financial responsibility under CERCLA 108(b) at hardrock mining facilities in this action. EPA therefore has not conducted a Regulatory Impact Analysis for this action. II. Authority This final rule is issued under the authority of sections 101, 104, 108 and 115 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C §§ 9601, 9604, 9608 and 9615, and Executive Order 12580. 52 FR 2923, 3 CFR, 1987 Comp., p. 193. III. Background Information A. Overview of Section 108(b) and other CERCLA Provisions Page 7 of 70 DOI-17-0494-D-000036 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** CERCLA, as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), establishes a comprehensive environmental response and cleanup program. Generally, CERCLA authorizes EPA 5 to undertake removal or remedial actions in response to any release or threatened release into the environment of “hazardous substances” or, in some circumstances, any other “pollutant or contaminant.” As defined in CERCLA section 101, removal actions include actions to “prevent, minimize, or mitigate damage to the public health or welfare or to the environment,” and remedial actions are “actions consistent with [a] permanent remedy[.]” Remedial and removal actions are jointly referred to as “response actions.” CERCLA section 111 authorizes the use of the Superfund Trust Fund (the Fund) established under title 26, United States Code, including financing response actions undertaken by EPA. In addition, CERCLA section 106 gives EPA 6 authority to compel action by liable parties in response to a release or threatened release of a hazardous substance that may pose an “imminent and substantial endangerment” to public health or welfare or the environment. CERCLA section 107 imposes liability for response costs on a variety of parties, including certain past owners and operators, current owners and operators, and certain transporters of hazardous substances. Such parties are liable for any costs of removal or remedial action incurred by the Federal Government, so long as the costs incurred are “not inconsistent with the national contingency plan,” (NCP). 7 Section 107 also imposes 5 Although Congress conferred the authority for administering CERCLA on the President, most of that authority has since been delegated to EPA. See Exec. Order No. 12580, 52 Fed. Reg. 2923 (Jan. 23, 1987). 6 CERCLA sections 106 and 122 authority is also delegated to other Federal agencies in certain circumstances. See Exec. Order No. 13016, 61 FR 45871 (Aug. 28, 1996). 7 See CERCLA § 107 (a)(4)(A). Page 8 of 70 DOI-17-0494-D-000037 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** liability for natural resource damages and health assessment costs. 8 As has been the case since CERCLA’s enactment, these provisions of CERCLA are available according to their terms, to the federal government and other parties, regardless of whether an owner or operator has provided evidence of financial responsibility under section 108(b). In accordance with CERCLA, in 1990 EPA issued the current version of the NCP. 9 These regulations provide the organizational structure and procedures for preparing for, and responding to, discharges of oil and releases of hazardous substances, pollutants, and contaminants. The NCP is codified at 40 CFR Part 300. Among other provisions, the NCP provides procedures for hazardous substance response including site evaluation, removal actions, remedial investigation/feasibility studies (RI/FS), remedy selection, remedial design/remedial action (RD/RA), and operation and maintenance. 10 The NCP also designates Federal, state, and tribal trustees for natural resource damages, and identifies their responsibilities under the NCP. 11 Under the NCP, EPA undertakes response actions that address or prevent risk to human health and the environment from the release of hazardous substances, pollutants or contaminants. A determination whether a release of hazardous substances, pollutants or contaminants presents a risk to be addressed under other sections of CERCLA or under other law is a separate determination from whether or not there is a current risk associated with the management of hazardous substances that warrants imposition of financial responsibility requirements under section 108(b). Nothing in this final action restricts 8 See CERCLA § 107 (a)(4)(C) – (D). See 55 FR 8666, March 8, 1990. 10 See 40 CFR 300, Subpart E. 11 See 40 CFR 300, Subpart G. 9 Page 9 of 70 DOI-17-0494-D-000038 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** EPA’s other authorities. The Agency’s decision not to issue final regulations under section 108(b) applicable to hardrock mining facilities does not change or substitute for EPA’s procedures for site-specific evaluations of risk, and for determining the need for response, in accordance with the NCP. Section 108(b) establishes an authority to require owners and operators of classes of facilities to establish and maintain evidence of financial responsibility. (b) (5) section 108(b)(1) directs EPA to develop regulations requiring owners and operators of facilities to establish evidence of financial responsibility “consistent with the degree and duration of risk associated with the production, transportation, treatment, storage, or disposal of hazardous substances.” (b) (5) Section 108(b)(2) directs that the level of financial responsibility shall be initially established, and, when necessary, adjusted to protect against the level of risk that EPA in its discretion believes is appropriate based on the payment experience of the Fund, commercial insurers, courts settlements and judgements, and voluntary claims satisfaction. The statute prohibited promulgation of such regulations before December 1985. In addition, section 108(b)(1) provides for publication of a “Priority Notice” identifying the classes of facilities for which EPA would first develop requirements within three years of the date of enactment of CERCLA. It also directs that priority in the development of requirements shall be accorded to those classes of facilities, owners, and operators that present the highest level of risk of injury. B. History of this Rulemaking Page 10 of 70 DOI-17-0494-D-000039 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** In November 2003, EPA initiated a study of the Superfund program, commonly referred to as the “120 Day Study.” 12 This “120 Day Study” resulted in more than 100 recommendations. In 2005, EPA initiated an Action Plan for implementing the recommendations of the 120-Day Study of the Superfund Program. Under that plan, EPA conducted an analysis to determine whether action under section 108(b) was appropriate (Recommendation 12). This analysis resulted in two detailed studies specifically designed to help identify classes of facilities for priority consideration under section 108(b), carried out from 2006 through 2008. The report of these studies, labeled “draft” and dated February 2009, are titled: “CERCLA 108(b) Financial Responsibility, Phase 1: Preliminary Analysis” (hereinafter Phase 1 Report) and “CERCLA 108(b) Financial Responsibility, Phase 2 Preliminary Analysis” (hereinafter Phase 2 Report). 13 Another analysis, also recommended by the 120-Day Study (Recommendations 10 and 11), on the sufficiency of financial assurance requirements imposed on hazardous waste TSDs regulated under RCRA also provides relevant information. See “Analysis of 40 Potential TSDs: Potential RCRA Treatment, Storage, and Disposal Facilities Proposed to the Superfund National Priority List after 1990,” Office of Solid Waste, January 19, 2007 (hereinafter 40 TSD Study). In the Phase 1 and Phase 2 analyses, EPA interpreted the financial responsibility requirements of section 108(b) to apply to currently operating facilities and current or future risks. Accordingly, in the analyses performed from 2006 through 2008, the Agency excluded historic practices and legacy contamination resulting from such practices, using 1990 as a date 12 13 SUPERFUND: Building on the Past, Looking to the Future, April 22, 2004. EPA-HQ-SFUND-2009-0265-0019 and EPA-HQ-SFUND-0265-0020. Page 11 of 70 DOI-17-0494-D-000040 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** to distinguish between modern and legacy practices. The Agency stated that it used 1990 because by that date most of the regulations under the Resource Conservation and Recovery Act (RCRA) relating to management of hazardous waste had been promulgated. This approach was consistent with the 40 TSD study, which excluded facilities proposed to the National Priority List (NPL) before 1990 to exclude facilities with legacy contamination that predated the RCRA hazardous waste regulatory program. In 2009, the Agency changed its interpretation of the statute. In a Federal Register notice dated July 28, 2009, 14 EPA identified the classes of facilities within hardrock mining as the classes for which it would first develop financial responsibility requirements based on - consideration of many factors, including factors unrelated to (b) (5) contamination, and (b) (5) such as legacy , such as Toxic Release Inventory reports under section 313 of the Superfund Amendments and Reauthorization Act of 1994. This notice represented a substantial departure from previous EPA interpretations of the statute. 15 On January 11, 2017, the Agency published proposed financial responsibility requirements applicable to hardrock mining facilities. The proposed rule adopted two policy goals for section 108(b) regulations -- to provide funds to address CERCLA liabilities at sites, and to create incentives for sound practices that will minimize the likelihood of need for a future CERCLA response. 14 Identification of Priority Classes of Facilities for Development of CERCLA Section 108(b) Financial Responsibility Requirements, 74 FR 37213, July 28, 2009. 15 Compare EPA’s Phase I and Phase II reports (EPA-HQ-SFUND-2009-0265-0019 and EPA-HQ-SFUND-0265-0020) to 74 FR 37213. Page 12 of 70 DOI-17-0494-D-000041 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** The proposal identified for public comment a range of options and supporting information, as described in the proposed rule preamble. 16 The proposed rule set forth, in proposed Part 320 subparts A through C, requirements for a comprehensive financial responsibility program under section 108(b) that would be applicable to hardrock mining facilities as well as to future industry sectors for which requirements under section 108(b) are later developed. In addition, the proposed rule set forth, in proposed Part 320 subpart H, requirements specifically applicable to hardrock mining facilities. The proposed rule provided information and analyses on releases and potential releases of hazardous substances at hardrock mining facilities. The proposed rule identified several classes of hardrock mining facilities that involved a lower risk and sought comment on whether additional classes should be excluded from the scope of a final rule. The proposed rule also discussed the relationship of section 108(b) to other federal law and to state law. EPA received over 11,000 public comment submissions on the proposed rule. Other federal agencies, state agencies, and industry representatives overwhelmingly opposed financial responsibility requirements under section 108(b) for the hardrock mining industry. Environmental groups urged adoption of the proposed rules. EPA also received a large number of identical comments from individuals through multiple letter-writing campaigns, advocating both for and against adoption of the rules. Among other concerns, commenters objecting to the proposed rule expressed the view that the Agency’s assessment of the information relating to risks posed by hardrock mining operations as presented in the proposed rule was deficient because the Agency: (1) relied on inappropriate evidence, such as data that did not 16 82 FR 3388 (Jan. 11, 2017). Page 13 of 70 DOI-17-0494-D-000042 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** - demonstrate risk, and evidence not relevant to the (b) (5) to be regulated under the rule; and (2) failed to consider relevant evidence, such as the role of federal and state mining programs and voluntary protective mining practices in reducing risks at current 17 hardrock mining operations, and the reduced costs to the taxpayer resulting from effective hardrock mining programs and owner or operator responses. EPA has considerable discretion under the statute and, as explained below, has reconsidered whether the rulemaking record supports the proposed rule in light of the information and data received through public comment. (b) (5) - (b) (5) relies on the information submitted by commenters on two key points: (1) the reduction in risks due to the requirements of existing federal and state mining programs and protective practices of current hardrock mining owners and operators, and (2) the reduced costs to the taxpayer resulting from effective hardrock mining programs and owner or operator responses. C. Recent Litigation under Section 108(b) On March 11, 2008, Sierra Club, Great Basin Resource Watch, Amigos Bravos, and Idaho Conservation League filed a suit against former EPA Administrator Steven Johnson and former Secretary of the U.S. Department of Transportation Mary E. Peters, in the U.S. District Court for 17 A discussion of which mining operations are considered “current” or “modern” can be found in section xx of this final rule. Page 14 of 70 DOI-17-0494-D-000043 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** the Northern District of California. Sierra Club, et al. v. Johnson, No. 08- 01409 (N. D. Cal.). On February 25, 2009, that court ordered EPA to publish the 2009 Priority Notice required by section 108(b)(1) later that year. The court later dismissed the remaining claims. EPA continued to work on a proposed rule for the next several years. However, developing a regulation that meets the statutory requirements presented a significant challenge. Dissatisfied with the pace of EPA’s progress, however, in August 2014, the groups Idaho Conservation League, Earthworks, Sierra Club, Amigos Bravos, Great Basin Resource Watch, and Communities for a Better Environment filed a new lawsuit in the U.S. Court of Appeals for the District of Columbia Circuit, seeking a writ of mandamus requiring issuance of section 108(b) financial assurance rules for the hardrock mining industry and for three other industries -- chemical manufacturing; petroleum and coal products manufacturing; and electric power generation, transmission, and distribution. In re: Idaho Conservation League, et al., No. 14-1149. Companies and organizations representing business interests in the hardrock mining and other sectors also sought to intervene in the case. Following oral argument, the court issued an Order in May 2015 requiring the parties to submit, among other things, supplemental submissions addressing a schedule for further administrative proceedings under section 108(b). The Court's May 19, 2015 Order further encouraged the parties to confer regarding a schedule and, if possible, to submit a jointly agreed upon proposal. Petitioners and EPA agreed to a schedule calling for the Agency to sign for publication in the Federal Register a proposed rule for the hardrock mining industry by December 1, 2016, and a notice of its final action on the proposal by December 1, 2017. The parties submitted this schedule to the court, and on January 29, 2016, the court granted the Page 15 of 70 DOI-17-0494-D-000044 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** parties’ joint motion and issued an order that mirrored the submitted schedule in substance. With this action the Agency has now satisfied both of these obligations. D. Hardrock Mining 2009 Priority Notice. As described above, section 108(b)(1) requires the President to identify those classes of facilities for which requirements will be first developed and to publish notice of such identification in the Federal Register. In “Identification of Priority Classes of Facilities for Development of Section 108(b) Financial Responsibility Requirements,” 18 EPA explained how it then chose to evaluate indicators of risk and its related effects, to inform its decision on the classes of facilities for which it would first develop requirements. 19 The 2009 Priority Notice pointed to eight factors that it considered, 20 and stated that its review of those factors and the associated information in the docket led the Agency to conclude that hardrock mining facilities present the type of risk that, in light of its evaluation, justified them being the first for which EPA would develop section 108(b) requirements. 21 The 2009 Priority Notice satisfied the notice requirement in section 108(b)(1). E. Hardrock Mining January 2017 Proposed Rule 18 See 74 FR 37213 (July 28, 2009) See Id. at 37214 20 These eight factors were: (1) annual amounts of hazardous substances released to the environment; (2) the number of facilities in active operation and production; (3) the physical size of the operation; (4) the extent of environmental contamination; (5) the number of sites on the CERCLA site inventory (including both NPL sites and non-NPL sites); (6) government expenditures; (7) projected cleanup expenditures; and (8) corporate structure and bankruptcy potential (see 74 Fed. Reg. 37214). 21 Id. 19 Page 16 of 70 DOI-17-0494-D-000045 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** On January 11, 2017, EPA proposed requirements in a new 40 CFR Part 320 that owners and operators of hardrock mining facilities subject to the rule demonstrate and maintain financial responsibility as specified in the proposed rule. The proposed rule identified two goals for section 108(b) regulations -- to provide funds to address CERCLA liabilities at sites, and to create incentives for sound practices that will minimize the likelihood of need for a future CERCLA response. The proposed rule explained that first, when releases of hazardous substances occur, or when a threat of release of hazardous substances must be averted, a Superfund response action may be necessary. Therefore, the costs of such response actions can fall to the taxpayer if parties responsible for the release or potential release of hazardous substances are unable to assume the costs. Second, the likelihood of a CERCLA response action being needed, as well as the costs of such a response action, are likely to be higher where protective management practices were not utilized during facility operations. The proposed rule discussed information assembled by EPA in the record for the action, The (b) (5) proposed rule then proceeded to establish a methodology to determine a level of financial responsibility in accordance with a proposed formula. The formula then allowed adjustments to the level of those requirements if a facility could demonstrate site specific conditions that rebut the presumption that(b) (5) EPA (b) (5) proposed limiting the applicability of the rule to owners and operators of facilities that are authorized to operate or should be authorized to operate on the effective date of the rule Page 17 of 70 DOI-17-0494-D-000046 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** (hereinafter referred to as “current hardrock mining operations”). EPA explained its interpretation of the statute on this issue, and also relied, in part, on the grounds that these owners and operators are more likely to further the regulatory goals of section 108(b) requirements than are owners and operators of facilities that are closed or abandoned. EPA also proposed limiting the applicability of the rule to current hardrock mining operations because those facilities are readily identifiable and, since they are ongoing concerns, they are more likely to be able to obtain the kind of financial responsibility necessary under the regulation. IV. Statutory and Record Support for this Final Rule A. Statutory Interpretation (b) (5) section 108(b)(1) directs EPA to develop regulations requiring owners and operators of facilities to establish evidence of financial responsibility “consistent with the degree and duration of risk associated with the production, transportation, treatment, storage, or disposal of hazardous substances[,]” (b) (5) Section 108(b)(2) in turn directs that the level of financial responsibility shall be initially established, and, when necessary, adjusted to protect against the level of risk that EPA in its discretion believes is appropriate based on the payment experience of the Fund, commercial insurers, courts settlements and judgements, and voluntary claims satisfaction. (b) (5) interpretation was also reflected in the proposed rule. As explained in the preamble to the proposal, EPA sought to document the extent to which hardrock mining Page 18 of 70 DOI-17-0494-D-000047 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** facilities as a class continued to present risk associated with hazardous substance management. 22 Moreover, this direction to identify requirements “consistent with” the risks found also led EPA to recognize that imposition of financial responsibility requirements under section 108(b) would (b) (5) - (b) (5) Nor does EPA believe that finalizing the proposed rules (b) (5) stated goals of the proposed section 108(b) rules for hardrock mining, namely (1) to increase the likelihood that regulated entities will provide funds necessary to address CERCLA liabilities if and when they arise; and (2) create an incentive for safer practices. 22 See 82 FR 3470 – 80. Page 19 of 70 DOI-17-0494-D-000048 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** based on the record for this (b) (5) rulemaking, and this decision does not substitute for any site-specific determinations of risk made in the context of individual CERCLA site responses. Those decisions will continue to be made in accordance with preexisting procedures. EPA has reached these conclusions on the record for this rulemaking based on its evaluation of public comment (b) (5) The major concerns raised by commenters are described below in Sections B and C. Section D below discusses case examples in EPA’s record that correspond to these major concerns. It should be noted that much of the public comment received on the proposed rule addressed specific provisions of the proposal. Because EPA has decided not to issue regulatory text under section 108(b) for hardrock mining facilities, or the general provisions in proposed Subparts A through C, comments on specific regulatory provisions are outside the scope of this final rule. B. Comments Regarding Appropriateness of Information Used 1. Use of Information Not Relevant to the Mines to be Regulated under the Rule Page 20 of 70 DOI-17-0494-D-000049 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Many commenters on the proposed rule, including mining companies, trade associations, as well as state and Federal agencies, commented that EPA’s record incorrectly characterized the on-going environmental risk at operating hardrock mining facilities by relying on information related to mines that were constructed and operated before current regulatory requirements were in place, rather than on information specific to current hardrock mining activities, which are highly regulated. Commenters argued that since the rule would not apply to inactive, non-operating sites, EPA should not rely on information related to such sites as part of its rulemaking record to justify the need for financial responsibility requirements for current hardrock mining operations. Several commenters disagreed with EPA’s assertion in the proposed rule that the $4 billion spent by EPA through the Superfund for cleanup costs at historical hardrock mining facilities is an indication of the relative risk present at the facilities covered by the proposed rule. Commenters argued that the 2009 Priority Notice and the 2017 proposed rule did not differentiate between costs associated with the highly-regulated mining practices of today and pre-regulation practices in developing that number. EPA agrees with commenters that information about facilities that presenting a level of risk similar to those proposed to be regulated is the most appropriate focus for the Agency’s record for this action. EPA also (b) (5) that mining practices have changed significantly over the past several decades, and that the information EPA gathered related to risk presented by mines that operated before those changes may not reflect the level of risk presented by currently operating facilities. Finally, EPA agrees with commenters that the cost of addressing releases from mines that operated without the controls in place today(b) (5) should not be assumed to be comparable to the Page 21 of 70 DOI-17-0494-D-000050 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** cost of addressing releases from current operations, where controls such as monitoring assure early detection. Commenters objected to the Agency’s use, in the Comprehensive Report, of 1980, 23 (b) (5) ■ as the point when “historic” mining practices changed over to “modern” ones. They felt this ignored the evolution of mining practices that took place since 1980, in response to other environmental laws, as well as state mining regulations which were still in their infancy in 1980. Some commenters seemed to agree that EPA should consider “modern” mining practices to have begun post-1990, and some suggested that the mid-1990s was the true beginning of modern hardrock mining practices. In evaluating the record for this rulemaking, EPA considered the issue of when mining operations became “modern” or “current.” EPA recognizes that because there are not nationally-applicable federal standards governing the operation of mines, 24 the current regulatory scheme of federal and state mining programs has evolved over time. Thus, the requirements of individual hardrock mining programs developed at different paces and sequences. EPA has therefore concluded that no particular date in the past reliably distinguishes between “historic” or “legacy” and “current” or “modern” mines nationwide, and that a better approach is to consider operations taking place under the current applicable regulatory scheme as “current” operations, and mine operations that took place before the enactment of the currently applicable and relevant requirements as “historic” or “legacy.” E.g., EPA relied on this date numerous times in the Comprehensive Report (e.g., see pages 7,8,72,119126,127,133, 145) 23 24 In 1986 EPA made a determination under section 3001(b)(3)(C) of RCRA that wastes from the extraction of ores did not pose a significant enough risk to warrant regulation under Subtitle C of RCRA. 51 FR 24496. Page 22 of 70 DOI-17-0494-D-000051 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** 2. Use of Data that Did Not Directly Demonstrate Risk at Current Hardrock Mining Operations Some commenters who opposed the rule objected to EPA’s analysis of the information presented in the 2009 Priority Notice relating to hardrock mining risk. Commenters objected that EPA relied on inappropriate information to demonstrate risk at current hardrock mining operations, by focusing on: (1) information related to historical mining practices that did not represent the risks associated with current hardrock mining operations, and (2) data that does not address potential exposure to CERCLA hazardous substances, or the possibility that a CERCLA response action may occur in the future, that is -- Toxics Release Inventory (TRI), and data from the Hazardous Waste Biennial Report. 25 Commenters argued that EPA’s approach to identifying hardrock mining did not evaluate actual or potential risk. EPA agrees with commenters that information regarding releases from hardrock mining facilities does not, in and of itself, demonstrate risk. For example, as noted in EPA’s “Factors to Consider When Using Toxics Release Inventory Data” (2015), “TRI data do not reveal whether or to what degree the public is exposed to listed chemicals.” 26 In fact, TRI data generally encompass releases that are permitted under the Clean Air Act, the Clean Water Act, or the Safe Drinking Water Act, as well as the lawful disposal of hazardous substances. Accordingly, EPA agrees that TRI data cannot help predict the risk associated with potential mismanagement and therefore cannot be used to support any determination under CERCLA section 108(b) that imposing financial responsibility requirements on a sector is appropriate. Similarly, EPA agrees that BRS data and ERNS data do not provide information on the degree risk, if any, posed by the 25 26 (b) (5) See https://www.epa.gov/sites/production/files/2015-06/documents/factors to consider 6.15.15 final.pdf Page 23 of 70 DOI-17-0494-D-000052 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** management of hazardous substances at hardrock mines. (b) (5) - Another commenter stated that EPA’s methodology for assessing risk was simply to describe some of the major mining practices that contributed to past CERCLA releases and simplistically conclude that similar practices are used today. The commenter argued that this approach is not accurate because it fails to account for the major changes in mining practices and regulatory requirements that are applied to modern mines. (b) (5) C. Comments that EPA Failed to Consider Relevant Information 1. Comments Providing Information on the Role of Federal and State Programs and Protective Mining Practices in Reducing Risks at Current Hardrock Mining Operations Many commenters who opposed the rule objected that EPA’s analysis failed to consider the technical or engineering requirements specified by other regulatory programs or the Page 24 of 70 DOI-17-0494-D-000053 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** requirements that financial assurance be established to ensure that these measures will be funded when needed. The commenters stated that both types of requirements significantly decrease the risks posed by modern mines, including both risks to the environment and risks that potential future liabilities will not be funded by mining companies. 27 Commenters provided extensive information regarding the requirements of those programs including design standards, engineering controls, and environmental monitoring. Commenters argued that engineering controls and best practices reduce the degree and duration of risk associated with the modern production, transportation, treatment, storage, and disposal of hazardous substances to minimal levels and that no additional financial responsibility requirements are necessary to protect the American taxpayer or the Superfund. (b) (5) (b) (5) 27 Freeport-McMoRan Inc; Fertilizer Institute; MiningMinnesota; New Mexico Environment Department and New Mexico Energy, Minerals, and Natural Resources Department; Colorado Department of Natural Resources, Division of Reclamation, Mining and Safety; National Mining Association. Page 25 of 70 DOI-17-0494-D-000054 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** (b) (5) (b) (5) - (b) (5) Barrick Gold commented that EPA cited some releases including Summitville and Zortman-Landusky, which the commenter stated cannot occur again because federal land management agencies and state regulators have strengthened requirements and practices to prevent the issues that occurred previously. Specifically, they stated that regulations and policy were modified to more carefully identify risks of acid rock drainage or other water Page 26 of 70 DOI-17-0494-D-000055 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** contamination, to control potential sources though mine design and to assure those measures are implemented through permit and monitoring obligations. The Colorado Department of Natural Resources, Division of Reclamation, Mining Safety’s comments support Barrick’s statements, stating that “the state learned from the errors at Summitville, and the state legislature passed major programmatic revisions to the Mined Land Reclamation Act (MLRA)” that “strengthened permitting and enforcement provisions. Most importantly, the MLRA was specifically amended […] to clearly require financial assurance for all sites based on site specific, not formulaic, criteria.” The Nevada Mining Association comments reference Nevada’s continual improvement of its regulatory programs to ensure effectiveness and efficiency. This comment argues that state programs are not static and rather make constant improvements. Comment from the Small Business Administration explained that the bonding requirements of the Nevada program have been more recently upgraded, in part, because of the experience gained from administering mines through bankruptcies in the early 1990s. The National Mining Association notes improvements to federal and state programs made in response to bankruptcies in the mining industry experienced in the 1990s and early 2000s. One coordinated improvement of Federal Land Management Agencies and Nevada cited is the development of the Standardized Reclamation Cost Estimator (SRCE). Finally, a commenter operating in several states stated that EPA’s evaluation of risk failed to consider important aspects of modern mining, including the deployment of voluntary industry programs (e.g., the International Council on Mining and Metals (ICMM) Sustainable Development Framework) and robust environmental management systems with third-party Page 27 of 70 DOI-17-0494-D-000056 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** certification. 28 Similarly, another commenter stated that EPA failed to adequately recognize the impacts of the development and adoption of industry best management practices (BMPs), other voluntary programs, and environmental management systems. 29 EPA acknowledges that the requirements of current federal and state programs can reduce risk at hardrock mining facilities, and that EPA did not consider those reductions in risk when determining the need for section 108(b) requirements for hardrock mining facilities. EPA agrees with commenters opposing the proposed rule that those reductions in risk should be considered in determining the need for final requirements under section 108(b) for current hardrock mining operations. 30 The Agency is thus convinced by those commenters that the rulemaking record supporting requirements under section 108(b) for currently operating facilities was deficient. It should be noted that in addition to the federal and state mining programs that regulate mine operation and closure, hardrock mining facilities are regulated under a number of federal programs, which contribute to reduction in risk at these facilities. For example, mines are generally required under the Clean Water Act regulations to obtain NPDES permits, and to meet federal water quality standards for point-source discharges to water sources from industrial operations. Requirements of the Safe Drinking Water Act include permitting and technical standards for underground injection wells that might be used in mineral extraction. 28 Freeport-McMoRan Inc. National Mining Association. 30 As discussed above, this determination applies only to EPA’s authority under section 108(b) and does not affect EPA’s authority to take action under other sections of CERCLA or under other federal law at any facility, including at a facility discussed in this preamble. 29 Page 28 of 70 DOI-17-0494-D-000057 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** And, requirements under the Clean Air Act apply NESHAPs for hazardous air releases from mining and processing operation sources. 2. Comments Providing Information on Reduced Costs to the Taxpayer Resulting from Effective Hardrock Mining Programs and Owner or Operator Responses. Commenters also argued that the reduced risk at modern hardrock mining facilities is evidenced by the fact that there are very few cases where modern hardrock mining facilities have been addressed by Superfund and/or at taxpayer expense. Several commenters disagreed with EPA’s assertion in the proposal that the estimated $4 billion spent by EPA through the Superfund for cleanup costs at historical hardrock mining facilities is an indication of the relative risk present at the facilities covered by the proposed - rule. Commenters (b) (5) that EPA did not differentiate between costs associated with the highly-regulated mining practices of today and pre-regulation practices in developing that number. They argued that such analyses would further demonstrate that any risks from modern operations entail much less costly responses, and that the bulk of the observed historical response costs are attributable to pre-regulation practices. In addition, many commenters stated that the risk that there will be inadequate funding to cover CERCLA liabilities at hardrock mining facilities in the future is adequately addressed by existing federal and state financial assurance programs. Commenters provided numerous examples of existing trust, bonds, and letters of credit (LOCs) available to pay for any necessary actions at these sites. 31 Commenters provided examples of facilities where the response costs have been paid for by owners and operators at no cost to taxpayers. 31 Page 29 of 70 DOI-17-0494-D-000058 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Since a goal of section 108(b) requirements is to provide funds to address CERCLA liabilities at sites, evidence of such privately-funded responses helps to support the decision that a financial responsibility requirements under section 108(b) for current hardrock mining operations are not appropriate. D. Evidence Rebutting EPA’s Site Examples In developing the 2009 Priority Notice and the proposed rule, EPA cited examples of hardrock mining facilities where releases of hazardous substances have occurred, and in some cases where CERCLA or CERCLA-like actions were necessary, as evidence of risk associated with hardrock mining operations. 32 Commenters on the proposed rule provided information to rebut the significance of case studies provided by EPA in support of the 2009 Priority Notice and the proposed rulemaking, by pointing out that response actions were due to legacy contamination, were privately funded, were covered by financial assurance under other law, or were the result of situations that have been subsequently addressed by state law. The information provided by these case studies formed a significant portion of the record on which the 2009 Priority Notice and the 2017 Proposed Rule were based. (b) (5) 1. Example Not Relevant to the Mines to be Regulated under the Rule 32 See Releases from Hardrock Mining Facilities (hereinafter referred to as the “Releases Report;” (b) (5) The National Mining Association comments included a detailed critique of the Comprehensive Report prepared by the Society for Mining Metallurgy & Exploration, Inc., as Appendix D to its comments Page 30 of 70 DOI-17-0494-D-000059 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Commenters provided information demonstrating that several of the site examples relied upon in the 2017 proposed rule are not relevant to an evaluation of the risk at current hardrock mining operations. (b) (5) Rio Tinto Kennecott Bingham Canyon Site in Utah This mine was provided in the preamble of the proposed rule as an example of the problems that can occur from large-scale operations. According to Rio Tinto, there has been active mining in the canyon since the 1860s. (b) (5) (b) (5) (b) (5) Page 31 of 70 DOI-17-0494-D-000060 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** (b) (5) (b) (5) (b) (5) Page 32 of 70 DOI-17-0494-D-000061 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** (b) (5) (b) (5) -■ (b) (5) Page 33 of 70 DOI-17-0494-D-000062 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** (b) (5) 2. (b) (5) Cost to the Taxpayers As discussed above, a goal of regulations under section 108(b) is to increase the likelihood that owners and operators will provide funds necessary to address the CERCLA liabilities at their facilities. In doing so, section 108(b) requirements assure that owners and operators, rather than the taxpayers, bear the costs associated with necessary responses to releases and potential releases of hazardous substances at their sites. Commenters on the proposed rule objected that EPA did not properly consider whether a release resulted in - expenditure of taxpayer funds to determine the need for a rule under section 108(b). (b) (5) (b) (5) Page 34 of 70 DOI-17-0494-D-000063 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** (b) (5) -■ (b) (5) (b) (5) (b) (5) ■ (b) (5) I I (b) (5) (b) (5) Page 35 of 70 DOI-17-0494-D-000064 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** (b) (5) (b) (5) (b) (5) (b) (5) . (b) (5) Page 36 of 70 DOI-17-0494-D-000065 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** (b) (5) (b) (5) I (b) (5) 46 National Mining Association comments on proposed rule. Pg 22 of Appendix table C-4 of NMA comments Page 37 of 70 DOI-17-0494-D-000066 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** (b) (5) (b) (5) (b) (5) (b) (5) Page 38 of 70 DOI-17-0494-D-000067 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** (b) (5) (b) (5) I (b) (5) Page 39 of 70 DOI-17-0494-D-000068 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** (b) (5) -■ (b) (5) I (b) (5) (b) (5) 51 NMA EPA-HQSFUND-2015-0781-2794 Attachment #83 pdf p. 911/30; Attachment #84 pdf p. 3/34; Attachment #110 pdf p. 332-334, 347-349, and 390-392/440 Freeport McMoRan EPA-HQSFUND-2015-0781-2793 Attachment #83 pdf p. 911/30; Attachment #84 pdf p. 3/34; Attachment #110 pdf p. 332-334, 347-349, and 390-392/440 Page 40 of 70 DOI-17-0494-D-000069 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** (b) (5) (b) (5) (b) (5) (b) (5) Page 41 of 70 DOI-17-0494-D-000070 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** (b) (5) (b) (5) 3. Examples Where Program Requirements were Modified to Address the Problem Commenters provided information to demonstrate that when problems have arisen at hardrock mining facilities, states have responded by improving their programs to prevent similar problems in the future and that there is, therefore, no need for requirements under section 108(b). Commenters provided examples of such state program modifications to rebut evidence provided in the record supporting the proposed rule. (b) (5) Page 42 of 70 DOI-17-0494-D-000071 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** (b) (5) . (b) (5) -■ I (b) (5) Page 43 of 70 DOI-17-0494-D-000072 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** (b) (5) (b) (5) (b) (5) Page 44 of 70 DOI-17-0494-D-000073 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** (b) (5) I (b) (5) ■ Page 45 of 70 DOI-17-0494-D-000074 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** (b) (5) -■ (b) (5) (b) (5) ■ ■ (b) (5) •• Page 46 of 70 DOI-17-0494-D-000075 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** (b) (5) Barite Hill/Nevada Goldfields Facility in South Carolina Barite Hill/ Nevada Goldfields is a gold and silver surface mine located in McCormick, South Carolina that was operated by Nevada Goldfields, who operated an open pit cyanide heap leach operation on the property from 1989 to 1994. Nevada Goldfields conducted mine reclamation activities from 1995 to 1999, when they filed for bankruptcy and abandoned the site. (b) (5) (b) (5) The National Mining Association commented that significant changes were made to South Carolina Mining Act in 1990 that specified reclamation requirements and provided enforcement tools. They also stated that new facilities at the site will have waste rock management plan to prevent acid mine drainage. 64 (b) (5) I I (b) (5) (b) (5) ■ 64 NMA EPA-HQSFUND-2015-0781-2794 Attachment #109 pdf p. 81/119; Attachment #110 pdf p. 330, 346, and 387/440 Page 47 of 70 DOI-17-0494-D-000076 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** (b) (5) I (b) (5) Page 48 of 70 DOI-17-0494-D-000077 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** (b) (5) (b) (5) (b) (5) (b) (5) Page 49 of 70 DOI-17-0494-D-000078 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** (b) (5) (b) (5) V. Decision to not Issue the General Facility Requirements of Subparts A through C in this Final Rule The Agency also has decided not to issue as final any provisions of the January 2017 Proposed Rule, including the general financial responsibility requirements in subparts A through Page 50 of 70 DOI-17-0494-D-000079 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** C. EPA would include general facilities requirements, such as these, in the first of any subsequent rulemaking proposals under section 108(b), rather than issue final requirements under those subparts at this time. EPA decided on this approach because there is no need to issue final requirements in Subparts A through C at this time as they would not be applicable to any classes of facilities until final section 108(b) regulations applicable to classes of facilities are issued. In addition, the Agency received significant comment on the general financial responsibility provisions of the proposed rule, many of which identified significant issues with those portions of the proposal. These included for example, the financial industry’s concerns regarding certain provisions included with the language of the instruments, as described in detail below. By issuing a new proposed set of general requirements for any subsequent industry class, EPA would to be able to gather additional information as appropriate. Accordingly, EPA would be able to present a new set of general facility requirements in any subsequent proposal, rather than having to create a proposal to modify existing requirements, thus avoiding potential confusion to commenters. VI. Public Comment that Supported a Final Rule and EPA Response EPA received many comments on the January 2017 proposal that expressed support for promulgation of financial responsibility requirements under section 108(b). Earthworks, et al 72 72 Earthworks submitted comments on the proposed rule representing: Inform, Western Organization Resource Councils, Minnesota Center for Environmental Advocacy, Upper Peninsula Environmental Coalition, Natural Resources Council of Maine, Montana Environmental Information Center, Greater Yellowstone Coalition, Conservation Law Foundation, Northeastern Minnesotans for Wilderness, Friends of The Boundary Waters Wilderness, Northern Alaska Environmental Center, Save Our Sky Blue Waters, Gila Resources Information Project, Brooks Range Council, The Lands Council, Campaign to Save the Boundary Waters, Friends of The Clearwater, Rock Creek, Alliance,Save Our Cabinets, Patagonia Area Resources Council, Friends of the Kalmiopsis, Clean Water Alliance, Water Legacy, Park County Environmental Council, Great Basin Resource Watch, Wisconsin Resources Page 51 of 70 DOI-17-0494-D-000080 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** commented that CERCLA regulations are necessary to ensure enough funds are available to complete cleanup actions without shifting the burden to the general public. They also stated in their comments that the proposed regulations did not duplicate existing state rules, which they argued do not cover pipeline spills, tailings spills, tailings impoundment failures and other releases of hazardous materials which commonly occur at hardrock mines, and can result in substantial liabilities. 73 In their comments on the proposed rule, Earthworks stated that “Strong CERCLA 108(b) regulations are necessary to protect taxpayers from incurring the cost of mine clean-up, and to ensure that clean-up of hazardous materials at mine sites occur in a timely manner.” To support their conclusion, they specifically mentioned a 2005 report by the Government Accountability Office (GAO) which concluded that EPA should “fully use its existing authorities to better ensure that those businesses that cause pollution also pay to have their contaminated sites cleaned up.” 74 They also pointed to a 2004 report by EPA’s Office of Inspector General (IG) that identified 29 specific sites where, according to the IG, cleanup work was delayed or scaled back in ways harmful to human health and the environment because of funding shortfalls. 75 In addition to this report, Earthworks identified in their comments other examples of cleanup efforts at mines that remain uncompleted due to insufficient funds being available, or that took an inordinate amount of time to complete, exposing the public to dangerous substances. Protection Council, Rivers Without Borders, Spokane Riverkeepers, Western Watersheds Project, Okanagan Highlands Alliance, Boise Chapter Great Old Broads for Wilderness, Copper Country Alliance, Nunamta Aulukestai, and Idaho Conservation League. I (b) (5) 74 75 Earthworks, et al, EPA-HQ-SFUND-2015-0781-2739, page 5. Earthworks, et al, EPA-HQ-SFUND-2015-0781-2739, page 5,6. Page 52 of 70 DOI-17-0494-D-000081 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** EPA appreciates Earthworks concern that insufficient funds leads to incomplete or slow cleanup and restoration of mine sites. Earthworks acknowledges that the universe of the proposed rule excluded mines that are no longer operating. They recommended that the universe be expanded to cover mine operations that are no longer active but still retain a responsible party. They state that, “Many past hardrock mining facilities are already and/or will be the site of CERCLA liabilities and necessary response actions. The CERCLA 108(b) regulations should apply to these operations.” 76 (b) (5) Earthworks also commented that “CERCLA 108(b) regulations are essential because they address risks and liabilities that aren’t addressed in most other State or federal land management financial assurance programs, including spills, accidental releases, and tailings failures.” 77 To support this conclusion, they point to several instances in ongoing mining operations where there are impacts to natural resources and/or groundwater due to ongoing mining operations which other federal or State rules fail to regulate. (b) (5) Earthworks also submitted comment claiming the need for financial responsibility for long-term water treatment. EPA recognizes that historical mining operations have resulted in the need for long-term water treatment. 79 (b) (5) 76 77 78 Earthworks, et al, EPA-HQ-SFUND-2015-0781-2739, page 11. Earthworks, et al, EPA-HQ-SFUND-2015-0781-2739, page 12. 79 Page 53 of 70 DOI-17-0494-D-000082 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** (b) (5) - VII. Tribal Consultation EPA received comments from three federally-recognized tribes and from three Alaska Native Claims Settlement Act (ANCSA) resource managers regarding section 108(b) financial responsibility. Tribal comments were generally in support of the proposed rule, but cited some concerns about the potential negative impacts on commercial enterprises and on subsistence living along with the need to more fully identify the benefits of the rule. A primary ANCSA concern was that the section 108(b) financial responsibility requirements would duplicate existing federal and state requirements, resulting in a negative impact on Alaska Natives, and on states that receive royalties through the Regional and Village Corporations. (b) (5) VIII. Obstacles to Developing and Implementing Section 108(b) Financial Responsibility Requirements for Hardrock Mining Facilities EPA decided not to issue a final rule under section 108(b) for hardrock mining facilities because the Agency believes that the rule is not (b) (5) Page 54 of 70 DOI-17-0494-D-000083 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** (b) (5) A. Potential Disruption of State, Tribal, or Local Mining Programs In the proposed rule, EPA acknowledged the role that effective reclamation and closure requirements at hardrock mining facilities under federal and state programs can have in reducing the likelihood of releases or potential releases of hazardous substances to the environment. EPA also documented that mining regulatory programs include financial assurance to support implementation of reclamation and closure requirements. Numerous observers raised questions about the effects of an express preemption provision in section 114(d) during EPA’s development of the proposed rule. This provision states: Except as provided in this subchapter, no owner or operator of a . . . facility who establishes and maintains evidence of financial responsibility in accordance with this subchapter shall be required under any State or local law, rule or regulation to establish or maintain any other evidence of financial responsibility in connection with liability for the release of a hazardous substance from such . . . facility. Evidence of compliance with the financial responsibility requirements of this subchapter shall be accepted by a State in lieu of any other requirement of Page 55 of 70 DOI-17-0494-D-000084 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** financial responsibility imposed by such State in connection with liability for the release of a hazardous substance from such . . . facility. 80 EPA thus discussed its views on the provision in the proposed rule. Commenters on the proposal nevertheless continued to express concerns that preemption would indeed occur if section 108(b) requirements were implemented at facilities, resulting both from successful preemption challenges and by the mere need to defend against those challenges. As EPA discussed in the proposed rule, courts, rather than EPA, will decide the effect of section 114(d). Thus, EPA cannot ensure that preemption will not occur if financial responsibility under section 108(b) requirements is in place at a facility. EPA thus understands why states and local governments have concerns that they would have to defend preemption challenges, and concerns over the possibility that preemption could occur. (b) (5) B. Uncertainty Regarding Financial Responsibility Instrument Availability Section 108(b) also discusses particular instruments for EPA to consider in its regulations. Specifically, paragraph (b)(2) states that financial responsibility may be established by any one, or any combination, of the following: insurance, guarantee, surety bond, letter of credit, or qualification as a self-insurer. Paragraph (b)(2) further authorizes the President to specify policy or other contractual terms, conditions, or 80 42 U.S.C. § 9614(d). Page 56 of 70 DOI-17-0494-D-000085 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** defenses that are necessary, or that are unacceptable in establishing evidence of financial responsibility. Paragraph (b)(2) also requires EPA to cooperate with and seek the advice of the commercial insurance industry to the maximum extent practicable when developing financial responsibility requirements. Paragraph (b)(4) provides direction on how the section 108(b) instruments are to address multiple owners and operators at a single facility. Section 108(c) also includes a “direct action” provision, under which CERCLA claims can be brought directly against an insurer or other entity issuing an instrument pursuant to the section 108(b) regulations. Section 108(c)(2) provides that any claim authorized by section 107 or section 111 may be asserted directly against any guarantor providing evidence of financial responsibility under section 108(b) if the person is liable under section 107 and: (1) is in bankruptcy, reorganization, or arrangement pursuant to the Federal Bankruptcy Code, or (2) is likely to be solvent at the time of judgement but over whom jurisdiction in the federal courts cannot be reached with reasonable diligence. (b) (5) The areas of most significant concern identified by commenters are: (1) the specification that the instruments need pay to multiple claimants; (2) the direct action provisions in the instruments; and (3) the continuity of coverage provisions Page 57 of 70 DOI-17-0494-D-000086 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** that subject providers to potential liability. These three features of the proposed section 108(b) financial responsibility program and the comments received regarding each are discussed below. The specification that the instruments need pay to multiple claimants EPA proposed that instruments would be payable to the full range of potential future - CERCLA claimants not solely a currently designated beneficiary (b) (5) in instruments. Financial industry representatives commenting on the proposed rule expressed - concerns that the proposed (b) (5) mechanisms would not have a single designated beneficiary. Commenters argued that instrument providers would be required to undertake more due diligence and exercise more discretion while also potentially being subject to more liability themselves absent a specified designated beneficiary. (b) (5) -■ (b) (5) Page 58 of 70 DOI-17-0494-D-000087 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** (b) (5) - Direct action provision Commenters also expressed concern that providers of instruments may be subject to direct action suit. However, the CERCLA statute itself, at section 108(c)(2), includes a direct action provision that expressly authorizes, in specified circumstances, any claim under section 107 and section 111 be made directly against the guarantor providing evidence of financial responsibility. Commenters from the surety industry claimed that the direct action provision significantly increased their risk exposure and included too broad of a trigger (bankruptcy). Banking industry representatives asserted that the provision was at odds with relevant commercial law and practice and would significantly deter banks from providing such instruments and services. The insurance industry commented that direct action creates the potential for significant increase in defense costs and administrative costs associated with the management of multiple lawsuits. (b) (5) Page 59 of 70 DOI-17-0494-D-000088 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** Continuity of coverage provisions To address the risk that the facility would no longer have financial responsibility when necessary, EPA proposed that owners and operators using a letter of credit, surety bond or insurance to demonstrate financial responsibility also establish a standby trust. In the event the instrument issuer intended to cancel the instrument and the owner or operator failed to obtain alternate financial responsibility, EPA could draw on the instrument and fund the standby trust. (b) (5) Commenters from the surety and insurance industry however suggested that the requirements for (b) (5) would limit the interest on behalf of sureties and insurers in providing mechanisms. Commenters also suggested that this proposed provision in combination with the difficult-to-predict date at which a facility may be released from the proposed financial responsibility requirements created unwelcome uncertainty around the duration of the provider’s obligation. (b) (5) Page 60 of 70 DOI-17-0494-D-000089 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** (b) (5) (b) (5) (b) (5) Based on the negative comments received, EPA believes there is uncertainty around the adequate availability of instruments were final regulations to be promulgated at this time. C. Challenges to Determine a Financial Responsibility Amount (b) (5) Page 61 of 70 DOI-17-0494-D-000090 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** (b) (5) In developing the proposed rule, EPA considered four approaches to identify a financial responsibility amount for a facility -- fixed amount, site-specific amount, parametric approach, and formulaic approach, and described three of those approaches in the proposed rule. EPA also identified some of the challenges of the three approaches described. Under a fixed amount approach, the Agency would identify a standard cost for the class of regulated facilities. This method does not rely on site-specific factors but rather on historical costs associated with similar facilities to calculate an expected future amount. This approach is best applied where the costs at issue are fairly uniform, as the wider the variation, the lower the accuracy of the financial responsibility amount for that cost. If there is wide variation in the costs associated with the facilities within the class to which the fixed amount is applied, the result can be significant over-regulation at those facilities with lower levels of liabilities, and significant under-regulation of facilities with higher levels of liabilities. At the same time, this approach has advantages in that it requires a lower level of effort on the part of the regulated community and the Agency to implement because the rule does not require a site-specific calculation to be developed, submitted, or evaluated. EPA proposed the use of a fixed amount for the health assessment component of the financial responsibility amount form hardrock mining facilities. The second method considered by EPA was a site-specific approach. Under this approach, the owner or operator would calculate the cost of conducting known activities to address identified problems. This approach is the most precise of the three approaches Page 62 of 70 DOI-17-0494-D-000091 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** considered by EPA. However, it is also the most resource intensive to implement. It requires gathering detailed information about the site, including an assessment of the site conditions, and is most easily implemented where a release has occurred, a response is necessary, and a remedy determination has been made. Having identified reasons that a fixed cost and a site-specific approach may not be appropriate to identify a financial responsibility amount for response costs and natural resource damages financial responsibility hardrock mining facilities, EPA sought to develop an approach that was more accurate than the fixed amount, yet could be implemented without conducting a full site investigation at the facility. The Agency’s efforts resulted in development of a formula designed for facilities within the hardrock mining industry. (b) (5) The formula assumed the need for a CERCLA response, then allowed reductions in the financial responsibility amount based on a demonstration of compliance with other regulatory requirements or other facility practices. (b) (5) Page 63 of 70 DOI-17-0494-D-000092 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** (b) (5) 82 See summaries of state financial responsibility programs in the docket for this rulemaking (EPA-HQ-SFUND-20150781). Page 64 of 70 DOI-17-0494-D-000093 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** (b) (5) (b) (5) the financial responsibility formula proposed for hardrock mining was specific to that industry, and was not designed for use in future rulemakings under section 108(b). In future rulemakings under section 108(b), EPA will evaluate how to determine financial responsibility amounts for each particular rule, and will propose an appropriate methodology. (b) (5) “consistent with the degree and duration of risk associated with the production, transportation, treatment, storage, or disposal of hazardous substances” and does not reflect a level of financial responsibility that EPA in its discretion believes is appropriate. D. Concerns Regarding Costs and Economic Impacts of the Proposed Rule Significant comments were received on the Regulatory Impact Analysis (RIA) for the proposed section 108(b) rule that highlight detrimental economic outcomes of concern to commenters. In addition to numerous comments critical of various methodological and data limitations in the RIA, the leading criticism focuses on the disparity between projected industry Page 65 of 70 DOI-17-0494-D-000094 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** costs in comparison with the rule’s predicted transfer of liability costs from the government to the hardrock mining industry. Using a period of analysis from 2021 to 2055, and assuming a seven percent social discount rate, the EPA quantified annualized compliance cost to industry to procure third-party instruments to be approximately $111 to $171 million (the net present value (NPV) of which is $1.4 to 2.2 billion over 34 years). These values represent the proposed rule’s estimated incremental costs to industry. 83 EPA then also quantified the transfer of potential CERCLA-related costs from the government to private industry that the proposed rule would yield. Although this is not a social benefit, based on an assumed facility default rate of 7.5 percent, the rule was expected to transfer a burden of just $15 to 15.5 million in annual liability from the federal government to the regulated industry (or $511 to $527 million over 34 years). Based on these estimates, commenters objected that the projected annualized costs to industry ($111 – $171 million) are a magnitude of order higher than the avoided costs to the government ($15 – 15.5 million) sought by the rule. Estimates of government cost savings in the baseline, and industry compliance costs under the rule, occur under different regulatory scenarios and are therefore not readily comparable. However, these findings do reveal that the costs borne by industry far exceed the relative scale of cost savings gained by the government as a result of the rule. In the words of one owner/operator, “the proposed rules inflict grossly 83 The majority of the industry costs represented a transfer from the regulated industry to the financial industry in association with the procurement of third party instruments, and hence the quantified annualized net social costs were estimated at $30 million to $44 million. Page 66 of 70 DOI-17-0494-D-000095 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** disproportionate burdens on the hardrock mining industry relative to the small benefit that it is - intended to provide to the taxpayers”. (b) (5) Beyond the concerns of high industry costs vs. low relative taxpayer savings, commenters also took significant issue with the broader economic impacts that the rule could have on the hardrock mining industry and the nation. Trade association(b) (5) noted that the cost of compliance relative to cash flow will be devastating to many companies. 84 According to some, the high cost of compliance will result in existing mines closing, and new mines not being built. (b) (5) that the high costs of the rule would force more 85 (b) (5) companies into bankruptcy, (b) (5) -■ ■ it takes much effort and expertise over several years to administer a bankruptcy, so it is important to keep operators in business to conduct their own reclamation responsibilities. 87 State mining associations also repeatedly commented on the importance of the hardrock mining sector in their individual states. 88 States commented that they would be grievously harmed financially if facilities reduced operations, ceased planned expansions, or 84 Comment Number: EPA-HQ-SFUND-2015-0781-2666-20 / Organization: ACC, AFPM, AISI , CKRC, IMA-NA, NAM, NMA, NAMC, PCA, SSP, TFI, and the Chamber I I I (b) (5) (b) (5) 88 ( Comment Number: EPA-HQ-SFUND-2015-0781-2744-2 / Organization: Arizona Mining Association Page 67 of 70 DOI-17-0494-D-000096 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** otherwise closed or went bankrupt. In states where mining is prevalent, those states count heavily upon the tax and permitting revenues, jobs, etc. that come from the industry. According to American Exploration & Mining Association (AEMA), the cash collateral required to obtain a section 108(b) financial responsibility instrument could be significant and also very problematic, because this cash collateral requirement reduces the capital that companies have available to conduct reclamation activities, advance environmental improvement initiatives, and pursue development opportunities. Ultimately, AEMA commented that the drain on corporate capital from the section 108(b) financial responsibility program would reduce the domestic production of minerals, cost hardrock mining jobs, and economically devastate mining dependent rural communities. 89 In an effort to further emphasize the adverse economic impacts of the proposed rule, an analysis was independently conducted by Dr. Gordon Rausser of OnPoint Analytics, on behalf of Freeport McMoRan, and submitted for the record in this rulemaking. 90 These industry supported analyses found that when all impacts are considered (including impacts on cash flow, production, and available resources), the proposed rule is estimated to cost the U.S. hardrock mining industry ten times the amount projected in the RIA – an amount reported to be between 23 percent and 66 percent of annual industry profits. The study also estimates that U.S. investment in the hardrock mining industry would drop by more than $5.6 billion, and that 89 Comment Number: EPA-HQ-SFUND-2015-0781-2657-69 / Organization: American Exploration & Mining Association (AEMA) 90 Comment Number: EPA-HQ-SFUND-2015-0781-2650-4 / Organization: New Mexico Mining Association Page 68 of 70 DOI-17-0494-D-000097 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** between 3,486 to 10,110 jobs would be lost in the U.S. hardrock mining industry should the proposed rule become final. 91 Lastly, commenters note that while mining occurs at the local level, the mining sector is a global industry. Increased costs have implications at the state and local levels, but these same increased costs could place U.S. mining at a competitive disadvantage. Those increases could be a disincentive to investment in domestic projects and an incentive to focus on operations and production outside of the U.S. 92 This could further result in a shortage of strategic metals at - home. Lithium (b) (5) is viewed as a strategic mineral currently in high demand globally as a lubricant, for use in steel and aluminum production, and in batteries as an electrolytes and electrodes. 93 Lithium mining is an area of considerable expansion in the U.S., that could be threated under the proposed rule. EPA’s decision not to issue final requirements under section 108(b) for hardrock mining facilities will thus alleviate potential burden on owners and operators, and will help prevent any disruptions to markets in the U.S. and abroad. EPA further seeks to avoid negatively impacting facility resources that could otherwise have greater benefits to the economy (such as through the implementation of environmental protection and enhancement programs, reclamation projects, exploration and development of new mineral deposits, etc.). 94 91 Comment Number: EPA-HQ-SFUND-2015-0781-2712-135 / Organization: Newmont Mining Corporation Comment Number: EPA-HQ-SFUND-2015-0781-2684-11 / Organization: Nevada Mining Association 93 Nevada Pg -33 94 Comment Number: EPA-HQ-SFUND-2015-0781-2682-14 / Organization: State of Idaho 92 Page 69 of 70 DOI-17-0494-D-000098 *** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review*** List of Subjects 40 CFR Part 320 Environmental protection, Financial responsibility, Hardrock mining, Hazardous substances. ________________________ Dated ________________________ E. Scott Pruitt Administrator Page 70 of 70 DOI-17-0494-D-000099 FY16 FNS-CNCS AmeriCorps NCCC Pilot Results Total Results and Place-Based Only Results Developing relationships and sponsors for member placement and service assignments takes time. Thus, FY16 activities, while targeting food insecurity, were largely not directed to specific place-based geography. While there were hopes to connect teams to the Promise Zone work in St. Louis, the SC2 groups did not move at a pace that allowed for NCCC teams to serve in this way in FY16. NCCC was introduced at Pine Ridge, and the tribe did choose to use the resource, but member activities were directed toward FEMA-related needs – again, the most appropriate given the time frame. In total, in FY16 between early-November and mid-July, the Denver NCCC campus deployed 23 teams of 8-12 members to address food insecurity in 16 locations within CNCS’ Southwest Region (FNS Mountain Plains and Southwest). Members were preparing and serving meals, tutoring and mentoring youth, leading recreational activities, building, expanding, and maintaining community gardens, and revitalizing community infrastructure. Teams worked with sponsoring agencies for 7-13 weeks, and several project sponsors were awarded multiple teams in the past year to assist with larger projects. The food insecurity projects fell into four areas: ● Farm to School ● Community Gardens ● Food Banks ● Summer Food Service Program None of the food insecurity locations are included in Promise Zones, although teams did participate in St. Louis and Pine Ridge on other kinds of activities. The following are included in StrikeForce areas: ● Denver, CO (City & County of Denver) – F2S ● Mancos, CO (Montezuma County)*** - F2S ● Lakewood, CO (Jefferson County) – FBank ● West Plains, MO (Howell County) - CGarden ● Ajo, AZ (Pima, County)*** - CGarden ● Casa Grande, AZ (Pinal County) - CGarden ● Nogales, AZ (Santa Cruz County) - CGarden ● Tucson, AZ (Pima County)*** - CGarden ● Albuquerque, NM (Bernalillo County)*** CGarden Taos, NM (Taos County)*** - CGarden Truth or Consequences, NM (Sierra County) Summer ***Includes Tribal areas ● ● These areas are not located in StrikeForce counties: ● Edwards, CO (Eagle County) - CGarden ● Topeka, KS – Summer ● Kansas City, MO - CGarden ● City of Little Rock, AR (Pulaski County) – F2S ● Pawhuska, OK (Osage County) - CGarden Total Results ● 324 gardens built, expanded or maintained ● 16,316 people received food or food education, 11,801 of which were students ● 197,787 pounds of food were harvested and/or distributed ● 28,136 meals were served, of which 25,425 were summer meals Place-based Only Results ● 120 gardens built, expanded or maintained ● 8,515 people received food or food education, the majority of which* were students ● 189,432 pounds of food were harvested and/or distributed ● 24,736 meals were served, of which 22,125 were summer meals *can get more specific numbers if required DOI-17-0494-D-000100 INFORMATION/BRIEFING MEMORANDUM FOR WATER & SCIENCE DATE: FROM: SUBJECT: February 7, 2017 William Werkheiser, Acting Director, U.S. Geological Survey Restoration Handbook for Sagebrush Steppe Ecosystems with Emphasis on Greater Sage-Grouse Habitat The USGS is publishing the final installment of a three-part handbook addressing restoration of sagebrush ecosystems. Part 1, released on October 26, 2015, introduces habitat managers and restoration practitioners to basic information about sagebrush ecology, greater sage-grouse, and restoration ecology of sagebrush-steppe ecosystems. Part 2, released on November 30, 2015, provides restoration guidance at the spatial scale of a landscape. Part 3, to be released on February 14, 2017, provides restoration guidance at the site level. All parts are being published as USGS Circulars. BACKGROUND Sagebrush-steppe landscapes have changed in fundamental ways over the past 100 years. In general, the area of land dominated by sagebrush has decreased, plant community composition at low-elevation sites has become dominated by non-native annual grasses, trees have expanded downslope from high-elevation sites to dominate lower slopes and valleys, and large patches of non-native annual grasses have fragmented habitats. As a result, ecosystem functions across sagebrush landscapes have been changed through alterations in soil stability, nutrient cycling, water infiltration, water storage, and the ability of the ecosystem to support biological diversity, including sage-grouse, has decreased. Land managers face many challenges in restoring sagebrush-steppe landscapes to meet multiple management objectives. Many wildlife species require different types of habitat, with some of those habitats spread over large scales. Consequently, managers need science-based information to know where, when, and how to implement restoration projects. The new handbook does just that: it describes a sagebrush-steppe habitat restoration framework that incorporates landscape ecology principles and information on resilience and resistance of sagebrush-steppe. The handbook was funded by the Joint Fire Science Program and National Interagency Fire Center, Bureau of Land Management (BLM), Great Northern Landscape Conservation Cooperative, USGS, and Western Association of Fish and Wildlife Agencies. DISCUSSION Part 1 of the Restoration Handbook introduces basic concepts about sagebrush ecosystems, landscape ecology, and restoration ecology, with emphasis on greater sage-grouse habitats: ● Understanding similarities and differences among sagebrush plant communities within western sagebrush-steppe ecosystems, including responses of plant communities to fire and defoliation. 1 DOI-17-0494-D-000101 ● Identification of how plant communities in sagebrush-steppe ecosystems may exhibit a gradient of resilience to disturbance and resistance to invasive plants based on soil temperature and moisture regimes. This includes concepts that aid in determining the need for restoration practices and the potential for success of restoration. ● Discussion of soils and the ecological site concepts that are critical for considering plant species to use for restoration and anticipating how those plants might respond to disturbance. ● Comparison of general restoration actions that may be implemented by changing current management practices or through re-vegetation of lands. ● Discussion of landscape restoration, a concept that helps prioritize sites where restoration could benefit different types of biodiversity. ● Discussion of effectiveness monitoring for adaptive management of future restoration treatments. Part 2 of the Restoration Handbook is a landscape restoration decision tool that can assist managers through the important process steps of identifying appropriate questions, gathering appropriate data, developing landscape objectives, and prioritizing landscape patches where potential sites for restoration projects may be located. The tool is structured in five sections, addressed sequentially: ● Am I dealing with landscape-related restoration issues? ● What are regional or landscape objectives for restoration? ● Where are priority landscapes and sites within landscapes for restoration? ● Prioritize landscapes using a resilience and resistance matrix. ● Monitor and report information on your measurable landscape objectives. Part 3 of the handbook is a site-specific restoration decision tool structured into nine steps that may be most useful when addressed sequentially. It can assist managers in selecting sites and the best techniques to use at those sites to improve the potential for restoration success: ● Define site-level restoration objectives. ● Describe the ecological characteristics of the restoration site, such as soil chemistry and texture, soil moisture and temperature regimes, and the vegetation communities the site can support. ● Compare the current vegetation to the plant communities associated with the site characteristics. ● Determine current land uses and past disturbances that may influence restoration success. ● Consider how weather before and after treatments may impact restoration success. ● Consider restoration treatment types, both passive and active, and their potential positive and negative impacts on the ecosystem and on habitats. 2 DOI-17-0494-D-000102 ● Consider post-restoration livestock grazing activities and management. ● Monitor to document implementation and determine success. ● Apply information learned from monitoring to determine how restoration actions in the future might be adapted to improve restoration success. NEXT STEPS ● A technical press release is being prepared for distribution when the Circular is published online. ● Early alerts about the report were provided to the Department of the Interior (DOI), the BLM, and the U.S. Fish and Wildlife Service (FWS). ● This Informational Memorandum will be shared with the DOI, BLM, FWS, and the Sagegrouse Task Force, and briefings will be provided as requested. 3 DOI-17-0494-D-000103 INFORMATION/BRIEFING MEMORANDUM FOR WATER & SCIENCE DATE: FROM: SUBJECT: February 23, 2017 William H. Werkheiser, Acting Director, U.S. Geological Survey New study on sage-grouse population responses to grazing management A new manuscript entitled Patterns in Greater Sage-Grouse Population Dynamics Correspond with Public Grazing Records at Broad Scales will be released in the next two weeks, in the journal Ecological Applications. This study found that sage-grouse population trends in Wyoming corresponded with livestock grazing level and timing, and responses can vary with local vegetation productivity. This paper provides an approach to evaluate and predict sage-grouse population responses to grazing management at broad spatial scales. BACKGROUND Livestock grazing has long been considered a contributor to greater sage-grouse population declines, yet studies demonstrating a link between grazing and population trends are lacking for this landscape species. Improper livestock grazing management has been implicated in population declines of greater sage-grouse because reductions in vegetative cover can negatively affect sage-grouse habitat and reproductive success. However, because information that links population dynamics of sagegrouse to specifics about how grazing is managed across the sagebrush landscape has not been available, the effects of livestock on sage-grouse populations are uncertain. Across the Western United States, the Bureau of Land Management (BLM) administers grazing on approximately 150 million acres of public land, and records from these grazing allotments offer an opportunity to characterize grazing management at an unprecedented scale. In this study, researchers from U.S. Geological Survey, Colorado State University, and Utah State University characterized livestock grazing across Wyoming using BLM allotment records from 2002 to 2012 to evaluate effects of livestock management on greater sage-grouse. They characterized a relative index of grazing level for each allotment and year as the ratio of the reported livestock use relative to the maximum use authorized by BLM. They also quantified grazing timing as the percentage of the relative grazing index that occurred before the annual peak in vegetation productivity. Annual counts of male sage-grouse from 743 leks during 2004−2014 were used to model sage-grouse population trends in response to grazing timing and intensity of grazing level across a gradient of vegetation productivity. DISCUSSION The researchers found that when analyzed at broad scales, grazing may have both positive and negative effects on sage-grouse population trends depending on grazing timing and level of the 1 DOI-17-0494-D-000104 relative grazing index: ● At high grazing levels, sage-grouse populations declined when grazing occurred early (before the peak in vegetation productivity) and increased when grazing occurred later. o This may reflect the sensitivity of some grasses to grazing during their critical spring growing period whereas when the same grasses were grazed later, after most of their growth has completed, they may experience fewer negative effects. o Grazing later in the growing season also may stimulate the additional growth of grasses and forbs if livestock remove standing dead vegetation or reduce shrub cover. ● At low grazing levels, however, the effects of grazing did not vary with the timing of when the grazing occurred. Thus grazing effects on population trends were not significant. ● Effects of grazing can depend on local vegetation productivity. o In moister sites with greater vegetation productivity, the study found that grazing at intermediate levels was preferable to grazing later in the season or at a higher grazing level early in the season. o In sites with high vegetation productivity, grazing early in the growing season at intermediate grazing levels may allow adequate time for plant regrowth and result in greater production over time than if grazing occurs later. These results indicated that modifications to the level of grazing and the season of when grazing occurs could attenuate declines or even stabilize otherwise declining greater sage-grouse populations. In addition, this study demonstrates the value of using grazing allotment records to examine broad-scale effects of grazing management for a variety of ecological and economic questions. NEXT STEPS ● Early alerts about the paper were provided to the Department of the Interior, BLM, and U.S. Fish and Wildlife Service (FWS). ● This Informational Memorandum will be shared with the DOI, BLM, FWS, the Sagegrouse Task Force, and briefings will be scheduled. ● A press release is being drafted for distribution and will be released when the report is posted online. 2 DOI-17-0494-D-000105 RECLAM ArTION ./-\.. U.S.Departmentof~ he l nterio r Bureau of Rec lamation Managing Water in the West Summary of responses from Request for Information on potential Bureau of Reclamation public-private partnerships On April 25, 2017, Reclamation released a formal Request for Information (RFI No. R17PS00874) seeking market feedback on the potential use of alternative finance and delivery structures, such as public-private partnerships (P3), to advance Reclamation’s mission and deliver project benefits. The RFI requested general feedback regarding market interest in leveraging alternative finance and delivery structures for Reclamation’s portfolio, as well as specific feedback on a handful of projects deemed “representative” of the broader portfolio. The RFI process was complemented by an industry forum held in Denver on May 9, 2017. Key Takeaways • The vast majority of Respondents expressed strong support for and interest in a potential Reclamation P3 initiative. • The preponderance of Respondents judged that some or all of the five projects identified in the RFI are suitable for P3 delivery; however, Respondents also noted market interest in these projects as P3 would depend on whether they were structured appropriately and meet key criteria (such as having a predictable funding stream, political champion, credit-worthy back-stop, etc.). • Many Respondents asserted that allowing for innovation within P3 was critical and offered specific suggestions (i.e., making easements available for additional and/or ancillary purposes). • After reviewing feedback received as a result of the RFI process, Reclamation is highly motivated and encouraged to further explore the potential for leveraging P3 to the benefit of taxpayers and Reclamation stakeholders. • In the next fiscal year, Reclamation plans to continue moving forward with this effort by: assessing its enabling framework regarding legislative, policy and/or institutional constraints to P3, considering developing a framework for screening and evaluating projects, and working within the Infrastructure Investment Strategy to build Reclamation’s P3 capacity. Comment Overview Reclamation received 37 responses to the RFI from a combined total of 52 companies and organizations. The majority were from private companies interested in partnering on future P3 projects, but some responses were from other types of organizations, such as existing Reclamation-project partners (e.g., water-user associations, power associations), and environmental non-governmental organizations. The private companies represented a broad cross-section of firms already participating in P3s, including developers, equity investors, design-build firms, operators, and asset managers. Of the 25 responses received from private companies, 10 were submitted by pre-formed consortia comprised of multiple companies (typically a developer/operator, equity investor, and design-build contractor). Of the 37 responses, the vast majority (33) expressed strong support for a potential Reclamation P3 initiative. Most Respondents believed some or all of the projects identified in the RFI are suitable for P3 delivery and most identified the same core benefits of the P3 approach: (1) faster delivery of project benefits than is achievable through the traditional government appropriations and procurement processes; (2) lower project construction and life-cycle costs; (3) greater technical and process innovation; (4) the shifting of schedule and cost risk to the private sector; (5) economies of scale; and (6) life-cycle asset management. Of the different potential project types, a majority of the Respondents believed municipal and industrial water supply, and irrigation projects, are the best candidates for a P3 approach. DOI-17-0494-D-000106 10/2/2017 Several Respondents noted there is currently significant demand within the private sector for P3 projects. For a specific project to be suitable for private investment, however, most Respondents agreed the following core criteria would need to be met: (1) appropriate project size and complexity; (2) clear statutory authority; (3) a sufficient and credit-worthy source of revenue capable of reliably covering debt service, O&M costs, and return on equity (most Respondents believe either a government-funded availability payment or a government guarantee of project revenues will be required); (4) strong political support at the federal, state and local levels; (5) strong stakeholder support and involvement; (6) demonstrable capacity within Reclamation to execute the procurement, backed by outside advisors with relevant P3 expertise and experience; (7) pre-solicitation completion of environmental, right-of-way and water-rights processes (or, at a minimum, a clear and realistic path to completion for each); (8) an appropriate allocation of the project risks (e.g., government partner retains risk for post-award changes in law, force majeure events, unknown hazards and utilities, unforeseeable utility delays); (9) clearly definable project outcomes and performance specifications, including allowance for innovation; and (10) a competitive and transparent procurement process. Most Respondents interested in participating as a private partner in a Reclamation P3 project favor a Design, Build, Finance, Operate and Maintain (DBFOM) structure, although many also noted current legislative and policy shortfalls as a chief obstacle to any approach requiring Reclamation to commit to a long-term payment stream (i.e., availability payments). Absent a change in scoring rules, most Respondents believe projects with clearly identifiable beneficiaries capable of providing adequate and reasonably assured off-taker payments are best suited for a P3 delivery approach. Potential investors expressed a strong preference for performance-based compensation, rather than demand-based compensation. The majority of Respondents also recommended Reclamation take a programmatic approach to P3 and alternative finance and delivery to best address legislative and policy shortfalls. This would allow Reclamation to build internal capacity and integrate innovative finance and delivery structures into its broader planning and budgeting processes. An overwhelming number of Respondents also underscored the need for Reclamation to leverage experienced and qualified advisors to assist them with both programmatic and project-specific issues, noting that this will help ensure projects are balanced and well-structured, thereby lowering investor riskpremiums and maximizing value-for-money through a P3 approach. In addition to a general discussion of the Reclamation portfolio, Respondents provided comments on specific projects, summarized in the attached table. Next Steps Reclamation is highly motivated and encouraged by the RFI responses, and is engaging in internal efforts to explore the potential for leveraging P3 to deliver critical infrastructure and services in a timelier and more costeffective manner, to the benefit of both taxpayers and Reclamation stakeholders. Reclamation emphasizes, however, that it does not view P3 as an exclusive funding tool or as a total replacement for traditional project delivery approaches. Instead, Reclamation is analyzing how best to enable P3 as an additional tool for project delivery, while continuing to utilize traditional delivery approaches. As a next step, Reclamation will undertake an assessment of its enabling framework to determine what, if any, actions might be required to address any legislative, policy and/or institutional constraints to P3. Concurrently, Reclamation is considering developing a framework for screening and evaluating projects to determine their suitability for innovative finance and delivery approaches. Reclamation is also developing a strategy for P3 capacity building within Reclamation (and the Department of Interior, more broadly) in an effort to facilitate institutional advancement toward innovative project delivery, when appropriate. As it has during the RFI phase, Reclamation will work with external P3 experts to ensure any future P3 initiatives comply with best practices and will continue to keep industry and the public abreast of our progress, as appropriate. DOI-17-0494-D-000107 10/2/2017 Project Specific Considerations Project Kachess Drought Relief Pumping Plant Eastern New Mexico Rural Water System (ENMRWS) Paradox Valley Unit (PVU) Yum a Desalting Plant (YDP) Arkansas Valley Conduit (A VC) Summary of Feedback The vast majority of the Respo ndents considered Kachess to be a suitable candidate for P3; however, unce1ta inty regarding the plant's future level of operations led some to believe the project may be better suited as a Design-Build-Finance (DBF) than as a Design -Build-Finance-OperateMa intain (DBFOM) . At least one Respo ndent suggested pote ntially combining plann ed proj ects, such as the Kachess pumping plant with the Keechelus to Kachess Conveyan ce project and other potential uses of Reclamation assets to create additional and diversified revenue streams for a lar ger compr ehensive projec t, such as hydro and wind power. The maj ority of Responde nts viewed ENMRWS as a good can didate for P3, but expressed a need for a credit-wo1t hy off-taker (or government back stop). There was general agreement a DBFOM is the best aITangement for an ENMWUA P3. A majority of Respondents believed PVU would be a good candidate for P3; however, there were differing opinions on whether it would be best structured as a DBFOM or other structure. Many Respondents focused their comments on technical elements of the structure, as well as on challenges relating to Office of Manage ment and Budget scoring of federal budget payme nts. There was a strong belief the project would benefit from allowing for Alternative Techni cal Considerations (ATC) an d innovative delive1y approac hes. One Respondent noted an opportunity to capita lize future savings and ancillary revenues. Most Respo ndents believed YDP lends itself to alternative finance and delivery stmct ures, alth ough there was some conce rn as to whether the project itself requires additional tr·eaty clarification (paiticularly as pe1tains to impacts to the Cienega de Santa Clara) . There was no common consensus as to the prefeITed transactio n struct ure, with some favoring a DBFOM and others prefeITing a private ly owned facility with an off-take agreement. A numb er of Respondents suggested Reclamat ion could outlease/sell the existing facility in exchange for the concessionaire making an upfront payment to Reclamatio n and then building a facility to meet the output requirements stipulated in the Treaty. Some Respondents questioned the criticality of the proj ect, while oth ers str·essed the need to allow for innovative technical concepts. Several stakeho lders requested that Reclamation engage with them regarding the possib le project. The maj ority of Respondents believe a DBFOM would accelerate delivery, lower costs and generate significant value-for-money; but all noted the need to identify a reliable funding source. Given the small population, there were questions concerning whether potential project beneficiaries could supp o1t the level of payme nts needed to fund the project. Respondents noted the impo1ta n ce of employing perfo1mance- or outcome-based criteria (as opposed to prescriptive requirements), thereby encouraging innovative approaches and technologies to reduce costs and risks. Some Respondents suggested additional financial incentive could be provide d by making the alignment available for an cillaiy purp oses , such as fiber-optic cable easement, an d/or encouraging developm ent of land adjacent to the easement for commercial uses . DOI-17-0494-D-000108 10/2/2017 The Secretary's Suggested Demarcation -·---·I ' Map#l As of September 1, 2017 ...... , ....... _.._, ............. ,._ --- - = ---· ... ·-. ... _ __, n -- ..,.._ -- ....... .... ~ 0\ ... f 'I,# ..,_ , ..... .. u,. ,.__ .... _. North Central 5 South Central Sou th 6 -... Pacific Islan ds 13 Atlantic Gulf 2 DOI-17-0494-D-000109 U.S. Reglonalizatlon : 12 Regions Combining Watershed and Physiographlc Criteria - v3 Proposed Regional Headquarter Candidate Cities As of August 2, 2017 --. ----------... .... .. -.. --..--~-_....... .. ...... -~- ..--· .... -···-· --...... ,_._ ---· ---· ----·- ----.. ..... ' ••• ..... aa..ta ~ •..-;. 9"-- ._ Billings O ~ Wll/lOII ~apld Cliy. North Cenrnl 6 Sourti om W lljo Paci fic e ,C,tSP.C Moun t.Jln s 10 F'¥llO . I South Ablene Ccnrr.,I • 7 GaJvatOfl l.. USA~ ene111or 111/Mds , crJ • Pacific .qr.~ uui:, "ta.. lslan ds ote ...,.r 12 5 mu SH/blolon 12 dorortul · ~ \? · DOI-17-0494-D-000110 U.S. Regionallzatlon : 12 Regions Combin ing Watershed and Phys lographic Criteria - v2 As of August 2, 2017 Proposed Regiona l Headquarter Candidate Cities ·---..-..--...... -.--- .... :: == =. -....---·.· -----.------" ----... ___,_ 1i .......... --· ., _.., ~ , SOt,tlh Ab~~ne C4!nrr.,t • 7 DOIHQ A9..,cy HO • Olle1 e IIO HO Po..,1111RlfoQI«. D vo111e~bectIIHed LJ "1t'fsiot_..ft,C8a~ 001~ .~ SIA Bl.U DOI-17-0494-D-000111 EIOR fWS U.S. Regionallzation : 12 Reg ions Combining Watershed and Phys lograph lc Criteria - v1 Proposed Reg ional Headquarter Candidate Cit ies As of August 2, 2017 -·-....---· --_- --- ..,_ --- .... -· ........ - . ' ... ..... •• -· ..... -_ --....--...... ·-·-.......' Abi lene S outh c.entral OOIHO • 7 • 00,,r.Ag..,ey HO • NoHO Por.eallllRe,gloe CJ \ O Wltanllad BP11yslog111j>llle8a..u 001 L•d au. Pl>MIORICO I Vlrg la ISJ<11tela ill!O S-IIIIH Of Ille 1111 (R 17.6 ------------------------------------------------------------------------------- Q Projectsserved by 1 Team Projectsserved by 2Teams Projectsserved by 3Teams *NationalAverage: 15.7% eA·,.. Data from feedingamerica.o rg Overview Since deploying for their first project November 1st, 23 teams of 8-12 members have worked to address food insecurity in the Southwest Region’s states through preparing and serving meals, tutoring and mentoring youth, leading recreational activities, building, expanding, and maintaining community gardens, and revitalizing community infrastructure. Teams have worked with sponsoring agency for 7-13 weeks, and several project sponsors have been awarded multiple teams in the past year to assist with larger projects. Farm to School Projects Denver Green School Denver, CO Denver Green School is an innovation public school, through which it has implemented a farm-tocafeteria program. The school’s focus on project based learning allows teachers and students to engage in relevant, self-directed, teacher-facilitated learning. The team supported the school’s effort to increase the capacity of the farm to cafeteria program through gardening, running the farm stand, and supporting student projects that directly relate to the garden. The team distributed 10,000 pounds of food to 200 people, and tended 1 garden. DOI-17-0494-D-000113 Montezuma School to Farm Project Mancos, CO A team deployed to support the Montezuma School to Farm Project, which focuses on providing integrated, hands-on school garden classes in Montezuma County. Members assisted with the expansion of the school garden programs which serve more than 4,000 students. This will improve the access to healthy, fresh foods, as well as the knowledge needed for how to grow it. Additionally, the expansion will increase the food production by more than 6,000 pounds of food. This will allow the program to expand and grow in the coming years and continue to address pressing community needs. The team harvested 154 pounds of food and tended 96 gardens. City of Little Rock – Love Your School (3 teams) Little Rock, AR The Love Your School (LYS) childhood obesity intervention is built upon a rigorous application of a model of health behavior change advanced by the Centers for Disease Control and Prevention (the CDC) entitled the Socio-Ecological Model with the expectation that positive health and academic outcomes for obese or overweight low income students will be achieved when all components of the model are implemented. The three teams deployed to Love Your School have supported this holistic approach through teaching nutrition lessons in Elementary schools, maintaining and expanding school gardens, implementing a walking program for students, and assisting with cooking lessons for parents of students. The teams tended 149 gardens and presented nutrition lessons to 7,801 students. Community Garden Projects University of Arizona Extension – Tucson Village Farm Tucson, AZ Tucson Village Farm addresses high poverty and obesity rates in the city through hands-on agriculture and nutrition education, as well as urban food production and distribution. The team installed fencing to expand growing areas, constructed pathways, increased the community garden by over an acre, taught youth about agriculture and nutrition, assisted with the planting and harvesting of fruits and vegetables, and supported the Farm’s largest fundraising event, the annual Harvest Festival. The team tended 1 garden and distributed 3,880 pounds of food. University of Arizona Extension – Pinal County Casa Grande, AZ Through the Pinal County Extension, the team worked with several community organizations, including the Pinal County Discovery in Garden Setting, constructing raised beds, and assisting with installation of the garden. In addition, the team worked with school and community gardens to prepare seed beds, construct a watering system, and educate youth about gardening. The team distributed 50 pounds of food and tended 4 gardens. Barrett Foundation Albuquerque, NM The Barrett Foundation provides housing and support service to women and children striving to break the cycle of homelessness. To address issues of hunger and poor nutrition among the homeless population the shelter, a team helped expand the Foundation’s community garden through construction of a greenhouse, raised beds, and irrigation systems. In total, the team distributed 3,431 pounds of food. DOI-17-0494-D-000114 Jerusalem Farm Kansas City, MO Jerusalem Farm is committed to sustainability and simplicity, and hosted a team for capacity building purposes. Over their 6 week stay, members of the NCCC team assisted Jerusalem Farm through repairing a barn, building a storage shed for bikes (which serve as transportation for the composting program), completed a greenhouse, expanded the neighborhood-wide composting program, installed irrigation systems, prepared the community garden, collected 555 pounds of food, and assisted with home repairs in the community. Osage Nation (2 teams) Pawhuska, OK The Osage Nation is developing a farm and Eco Park to empower communities to engage and learn about food systems, and the park will include recreation areas, demonstration gardens with informational boards, farmers markets, food preparation demonstrations, and outdoor classrooms. Teams serving this project have cleared brush, removed invasive and non-native plants, created ADA accessible trails, and improved ADA accessibility in 2 gardens and greenhouses, and helped laid out different areas for the Eco Park. International Sonoran Desert Alliance Ajo, AZ The International Sonoran Desert Alliance (ISDA) works to revitalize the city of Ajo, in hopes to increase the appeal, thereby increasing tourism and the economy. As part of their project, the team serving with the ISDA supported other local non-profits through constructing a greenhouse, maintaining and expanding community gardens, and supporting the weekly farmers markets to provide healthy, fresh foods to members of the community. In total, the team harvested 117 pounds of food and worked in 5 gardens. West Plains Community Garden West Plains, MO West Plains Community Garden helps combat hunger, poor eating habits, and the financial burden of high grocery bills through the community garden. A team deployed to assist with maintenance, expansion and accessibility improvement work at the garden, as well as making the garden itself more sustainable. Additionally, the team assisted with the educational horticultural center slated to open in 2017. The team repaired the greenhouse and renovated walkways in the community garden, and planted trees, shrubs, and perennials in the botanical garden. The team helped receive and inventory 7,800 pounds of food and tended 4 gardens. InteGreat! & Eagle River Youth Coalition Edwards, CO InteGreat! Is developing a sustainable, collective solution to child food insecurity. The team that deployed April 12 prepared and served meals (free for children between 0-18 years old), assisted with family enrichment activities and youth development programs, organized volunteers, conducted outreach, and supported the annual soccer program. Additionally, the team supported emergency food assistance providers, building greenhouses and infrastructure around community gardens, helping families start their own gardens, and create safe spaces for children to play throughout the summer. The team helped receive and inventory 7,800 pounds of food and worked in 46 gardens. DOI-17-0494-D-000115 University of Arizona Cooperative Extension – Santa Cruz County Nogales, AZ The Santa Cruz Cooperative Extension is an outreach arm of the College of Agriculture and Life Sciences, and spearheads community collaboration to advance local projects in an effort to improve lives and communities. As part of their project work, the team that deployed worked at Nogales High School planting trees, maintaining the gardens, and leading youth development activities with students. The team also served 1,500 meals. Not Forgotten Outreach (3 teams) Taos, NM Not Forgotten Outreach strives to create a Respite Center for military families and veterans to support mental health and reintegration needs. As part of the respite center, Not Forgotten Outreach envisioned a farming component they refer to as “Dirt Therapy.” The organization is based on grassroots volunteer opportunities, and the three teams that have served during Class 22 have begun to construct, expand, and maintain the dirt therapy garden for military families at the Respite Center. The three teams tended 9 gardens, provided 43 people with food, and served 1,111 meals. Food Bank Projects The Action Center Lakewood, CO The Action Center strives to create pathways to self-sufficiency through interventions remove families from crisis and prevent further situations through connection to programs to lead families back to stability. The team assisting the Action Center helped manage thousands of incoming donations to the Grocery and Household Shelter, assisted with the Thanksgiving Food Distribution which provided Thanksgiving dinners for over 6000 individuals. The team received, inventoried, and distributed 158,000 pounds of food to 4,272 people. Summer Food Service Program Projects Forest Park Conference & Retreat Center Topeka, KS One team deployed to Topeka to work with the Forest Park Conference & Retreat center, and as part of their service, members conducted outreach, planned and implemented USDA’s Summer Meals programs for low income youth. The team tended 7 gardens and served 3,400 meals. AppleTree Education Center (3 teams) Truth or Consequences, NM AppleTree Edcuation Center is the only licensed child care center in Sierra County, and strives to meet the needs of the whole child, which includes the family and community to provide hope for a brighter future and decrease the achievement gap. While previous teams have supported the day care center, which provides food to low income students, the team that deployed on April 12 continued this service, as well as prepared and distributed USDA Summer meals to low income youth. In total, the three teams served 22,125 meals. DOI-17-0494-D-000116 Veterans ask: 1. Funding for crews and internships for Veterans with clear outcomes. Increase opportunities for veterans to complete meaningful and needed conservation projects. Note, we are not asking for new funding, but prioritizing Corps where appropriate. 2. Hire vets coming out of conservation corps programs into permanent positions – expand direct hire authority for corps. Corps can provide a clear pathway for Veterans to develop the skills and experience needed to be successful DOI employees. 3. Support capacity to provide a consolidated recruitment function for Veterans. This can be through connections to veterans serving organizations and infrastructure funding to develop a national Veterans conservation corps applicant pool. 4. Agreement mechanisms- Cut red tape so we can do more project work. Establish a comprehensive DOI Cooperative Agreement with Conservation Corps including but not limited to Veterans. 5. Visit a Veterans fire crew this winter. There will be several Veterans Fire Crews fielded this winter in the southeast region. It is a great opportunity to see the work first hand. DOI-17-0494-D-000117 WaterSMART Ove .rv.iew ----- - Policy & Administration Water Resources and Planning Division ·~ --- --- _.- February 7, 2017 l)t-PJ.P.ltl.EN'I CllTHE/Hr •' '·-. ~~.,:'" ::::_ U.S . Department of the Interior / Bureau of Reclamation DOI-17-0494-D-000118 WaterSMART: Sustainand ManageAmerica's Resourcesfor Tomorrow Departmental initiative established in 2010 Built on existing programs Provides a framework for Interior to support water supply sustainability for multiple water uses through collaboration Implements the SECURE Water Act (P. L. 111-11 , Title IX of Subtitle F) - Reclamation and the USGS both contribute to WaterSMART DOI-17-0494-D-000119 RECLAMATION Basin Study Program Collaborative Planning Conservation Field Services Program Title XVI Program Water Conservation and Ef?ciency Water Reclamation and Reuse Water Conservation Planning and Design Drought Response Program Planning and Building Resiliency Cooperative Watershed Management Program Watershed Management and Restoration Resilient Infrastructure Resilience of Reclamation's Facilities EC LA AT 1 WaterSMART Programs • Cost Share • Competitive Process - Funding Opportunity Announcements (FOAs) - Evaluation Criteria - ARC - Regional Review - Washington Review - Debriefings DOI-17-0494-D-000121 RECLAMATION Basin Studies - ~ . West-Wide Climate Risk Assessments ( • - ' ...... -- .. --•- Collaborative studies to identify strategies ·.t9 adap}\(¢:.:~ ~nQ1fnitig ~te curirer;'ltOri future water supply and ~emand imbalances , .inslyq ffilgft~~·titnP~cts ofi climate change , drought , population growth and oth~r s_ tn;§$.bf~·;.lw -~ - I _CRAl I .. - _' _ _• • Reclamation develops key data on west-wide risks and impacts to1'Reclamatior., operations to provide a foundation for future Basin Studies_:_ ~~-c;bf9~Rf9jgct specific applications ..•-:':•,,_.., .. I Desert and Southern Rockies LCCs - • ~~ 0 Partnerships that provide science and technical support , coordinatf6h / 8-Q_ di~ communication for resource managers to help address landsc~pe ·.lev~r ~ ·· challenges · DOI-17-0494-D-000122 -• . ·' it Title XVI Water Recl,amatiOim and Reuse Program . . r~· ·. ~ ·• ·.-- .-- ,-·-., .._ . t .. <• • Projects reclaim or reuse: • • i,. r · Municipal, industrial, domestic, and/or pgr,ic,IJ.ltl!r~]~ a~ wat~fi Naturally impaired ground and surface W?.te. r· ~ - • 25% Federal cost share (except for feasibility stud (3$ ) • Recently enacted WIIN amendments DOI-17-0494-D-000123 RECLAMATIO· WaterSMART Grants • Small-Scale Water Efficiency Projects - Small-scale projects identified through previous planning ..eff~rts .~:~ • Water Marketing Strategy Grants - Planning activities to develop a water marketing strategy to establish or expand water markets or water marketing transactions. DOI-17-0494-D-000124 RECLAMATION Drought Response Program • Drought Contingency Planning - Provides financial assistance for applicants to develop or update ~: drought contingency plan. • Drought Resiliency Projects - Provides financial assistance for projects that help communities prepare for and respond to drought {"mitigation actions"). • Emergency Response Actions - Crisis driven actions undertaken by Reclamation to minimize losses and damages resulting from drought. DOI-17-0494-D-000125 RECLAMATION Cooperative Watershed Management Program . . .... . 'I''·~ 1 ,<,,,, • - .... . , ... • ~ ,. ,, . .... •1-\ , ;.- • Support for local watershed groups representing diverse interests, including districts, state entities, local non-profits, ranchers, and private landowners • Phase I: Establish local watershed groups and develop restoration plans • Phase II: Implement watershed management projects • Example projects • Stream channel improvements to increase flows, wetland buffers to improve water quality, and mitigation of wildfire impacts. DOI-17-0494-D-000126 RECLAMATION Water Conservation Field Services Program • Funding made available for: - Development of Water Conservation - System Optimization Plans Reviews - Design of Water Management Improvements - Demonstration of Water Conservation Technologies DOI-17-0494-D-000127 RECLAMATION Upcoming • WIIN/WRDA Statutory Deadline for Guidance (Feb. 14) • Water Marketing Strategy Grants FOA Release (Feb.) • Landscape Conservation Cooperatives FOA Release (March) • Basin Study Transmissions to OMB – Klamath River Basin – Niobrara River Basin • Announcements of Successful Applicants (March – June) DOI-17-0494-D-000128 11 Additional Slides RECLAMATION WaterSMART Data Visualization Tool Reclamation Programs interactive companion to the WaterSMART Progress Report: • ., ·.~ •. .. ·• Featured project tours • Program growth over time . -~ - I ,\~l , ·: ~ ..,, t. 0 • r\ ... .. . N \ ,c U Ill • , Interactive maps • I H I lit 0-\KOl •• ~ • -;• A :- .., ........... -- 200 Miles L.....J........ • Link to visualization: TiUeXVI Authorized Project • wate rSMA RT Grants o Title XVI Feasibility Study • Reservoi r Operations Pilot o Title XVI Research Study o LCC Project o Drought Resiliency Project Drought Continge ncy Plan Area Cooperative wa te rshed D z Management Program - Phase I Basin Study .. ' .. 11 h.1e,1n o DOI-17-0494-D-000130 RECLAMATION Program ($ Thousands) Basin Study Program FY 2016 Enacted Request 5,200 5,200 Title XVI Program 32,365 WaterSMART Grants 29,000 Drought Response Program 6,600 4,000 750 1,750 Water Conservation Field Services 4 ,239 4 ,179 Resilient Infrastructure 2,500 1,500 Cooperative Watershed Management Program In FY 2016 an additional $100 million in appropriations was provided for Western Drought Response . This funding was distributed among Reclamation programs including WaterSMART grants (+9 M), Title XVI (+9 M), Drought Response Program (+$4 .1 M), and the Cooperative Watershed Management Program ( +500 K) DOI-17-0494-D-000131 RECLAMATION PRIVILEGED ATTORNEY-CLIENT COMMUNICATIONS – DO NOT RELEASE Office of the Solicitor Briefing Paper Cases: National Mining Ass’n v. Dep’t of the Interior (D.D.C.) (Challenge to Stream Protection Rule, 2016 BiOp, 2016 MOU) (NMA) Murray Energy Corp. v. Dep’t of the Interior (D.D.C.) (Amended Complaint) (Challenge to Stream Protection Rule, 2016 BiOp, 2016 MOU) (Murray) Issues: Summary of plaintiffs’ concerns about the 2016 BiOP and MOU Background In both NMA and Murray, plaintiffs include claims against the programmatic biological opinion (2016 BiOp) and the memorandum of understanding 1 (MOU) between the Office of Surface Mining Reclamation and Enforcement (OSMRE) and the Fish and Wildlife Service (FWS) in addition to challenges against the Stream Protection Rule (SPR) itself. Each plaintiff seeks a judgment vacating the 2016 BiOp and MOU, arguing that both are contrary to the Surface Mining Control and Reclamation Act of 1977 (SMCRA) and the Endangered Species Act of 1973 (ESA) and are arbitrary and capricious in violation of the Administrative Procedure Act (APA). (b) (5) 1 DOI-17-0494-D-000132 DOI-17-0494-D-000133 DOI-17-0494-D-000134 (b) (5) Contact: Nancy Brown-Kobil, Attorney-Advisor, Division of Parks and Wildlife, 202-2086479; Sue Ely, Attorney-Advisor, Division of Mineral Resources, 202-208-5959 Date: March 8, 2017 4 DOI-17-0494-D-000135 PRIVILEGED ATTORNEY-CLIENT COMMUNICATIONS—ATTORNEY WORK PRODUCT—DO NOT RELEASE Memorandum To: K. Jack Haugrud, Acting Solicitor From: Karen Hawbecker, Associate Solicitor, Division of Mineral Resources Ann Navaro, Acting Associate Solicitor, Division of Parks and Wildlife Subject: ESA compliance recommendation after passage of H. R. J. Res. 38 (b) (5) 1 DOI-17-0494-D-000136 DOI-17-0494-D-000137 DOI-17-0494-D-000138 DOI-17-0494-D-000139 DOI-17-0494-D-000140 DOI-17-0494-D-000141 DOI-17-0494-D-000142 DOI-17-0494-D-000143 DOI-17-0494-D-000144 DOI-17-0494-D-000145 11 DOI-17-0494-D-000146 INFORMATION/ BRIEFING MEMORANDUM DATE: FROM: SUBJECT: March 22, 2017 Pam Williams, Director, Secretary’s Indian Water Rights Office, 202-262-0291 Status of water rights negotiations related to the Hualapai Tribe (Tribe) This memorandum provides the status of the Tribe’s water rights settlement activities. BACKGROUND (b) (5) DISCUSSION (b) (5) DOI-17-0494-D-000147 NEXT STEPS DOI-17-0494-D-000148 SENSITIVE, BUT UNCLASSIFIED THE DEPARTMENT OF THE INTERIOR & MODERNIZING THE COLUMBIA RIVER TREATY MEMO FROM: DATE: Michaela Noble, Office of Environmental Policy & Compliance, 202-208-7557 March 31, 2017 Issue: The Department of the Interior (DOI) is a key agency in the U.S. Government’s effort to achieve a modernized Columbia River Treaty (CRT). DOI is the Government’s lead advocate for 1) improving conditions in the Columbia River basin to support sustainable tribal, commercial, and recreational fisheries; and 2) securing additional water for consumptive use to meet increasing domestic and agricultural demand. Power Groups and the Tribes have begun to seek support from the new administration to get Canada to agree to come to the negotiating table to modernize the treaty as soon as possible. Background: The CRT is an agreement between the US and Canada which outlines hydropower operations, compensation strategies, and flood risk curtailment in the Columbia River basin. The CRT has no termination date, but either country can terminate the treaty given 10 years’ advance notice. When the CRT was ratified in 1964, the U.S. purchased a dedicated amount of annual flood control storage which expires in 2024. After that, Canada is still obligated to provide storage for flood control in the US on a “Call Upon” basis, but that methodology is not well defined or agreed upon between the US and Canada. Furthermore, the lack of certainty under “Call Upon” poses risks and concerns to the US for both flood risk management and consistent and efficient power generation. The CRT increases power generation in the US, and the downstream power benefits are shared between the two countries. Canada’s share, the “Canadian Entitlement” (CE), is valued at $100M-$300M annually and delivered to British Columbia as energy and capacity, not money. Most of this power is generated from federal dams, but three public utility districts - Chelan, Douglas, and Grant - benefit from CRT operations and have agreed to contribute approximately 27% of the CE through 2024. The CE is valued at $100M-$300M annually, and the Power Groups wish to renegotiate and reduce the CE. The US Entity, defined as the Bonneville Power Administrator (BPA) and the U.S. Army Corps Division Engineer (Corps), per E.O. 11177, led a multi-year review of the CRT culminating in the development of a Regional Recommendation and establishment of the US position for modernizing the CRT. The review included 15 tribes, four states, and all the relevant federal agencies in the region and received broad support from state, tribal, and federal agencies; power utilities; and non-governmental organizations. It specifies that the CRT “should enable the greatest possible shared benefits… for ecosystem, hydropower, and flood risk management, as well as water supply, recreation, navigation, and other pertinent benefits…” The Regional Recommendations were utilized to draft and achieve agreement on this US position as reflected in the Circular 175 (C-175), adding eco-system based function as one of the primary purposes, in addition to flood risk management and power generation, for modernizing the CRT. The US also wishes to update the CRT to include the US right to direct water needs for agriculture, while taking into account navigational needs. DOI-17-0494-D-000149 SENSITIVE, BUT UNCLASSIFIED The Department supported including ecosystem-based function in an effort to obtain the right to direct Canadian water storage and release to support a resilient and healthy ecosystem in the Colombia River basin. Although the CRT significantly impacts tribes and tribal resources, protected through earlier treaties and executive orders, the tribes were not consulted prior to CRT ratification in 1964. Tribes and First Nations have been actively engaged in treaty modernization discussions over the last five years. In the US, representatives from 15 Columbia Basin Tribes have joined together in an unprecedented coalition to support improved conditions in the basin by utilizing ecosystem-based function. The Columbia River Treaty Power Group have also been working closely with the Tribes and support remaining consistent with the Regional Recommendations in order to continue to move forward with negotiating the CRT with Canada. Next Steps: The State Department has scheduled an Interagency meeting on April 7, 2017 to provide an update and discuss next steps. While the US has received authorization to enter into negotiations with Canada; we are still waiting on Canada to agree to begin formal negotiations. A successful treaty modernization effort will depend on achieving balanced trade-offs among the expanded purposes. Because of the broad and balanced interest of the Interior, it is critical that Interior continues to be a leader in this process to ensure that ecosystem-based function is balanced with flood risk management and power generation. This begins with working with the State Department, US Entity, Tribes, and Power Generators in encouraging Canada to come to the negotiating table to modernize the CRT. 2 DOI-17-0494-D-000150 BUREAU: OFFICE: ISSUE: Office of the Solicitor Division of Indian Affairs Mandatory Trust Acquisition Memorandum of Agreement with Timbisha Shoshone Tribe The Timbisha Shoshone Tribe of California will seek a meeting to discuss the status of its memorandum of agreement (MOA) with the Department for implementing certain provisions of the Timbisha Shoshone Homeland Act of 2000 (Act). 1 • • • The Act mandates the trust acquisition of certain lands within the Tribe’s ancestral homeland, including for gaming purposes. The Act authorizes the Secretary to purchase a private ranch in Nevada from willing sellers or agree with the Tribe on a substitute parcel. With no willing seller to date, the Department and the Tribe entered an MOA agreeing to a substitute parcel in Ridgecrest, California to be acquired in accordance with the Department’s mandatory trust acquisition procedures. Background. The Tribe historically occupied an area in Nevada and California encompassing Death Valley National Park (Park). The Park’s creation in the 1930s ended the Bureau of Indian Affairs’ (BIA) efforts to establish a Tribal reservation, though the Tribe continued to occupy Park land. After the BIA disclaimed responsibility for the Tribe, it petitioned for and received federal acknowledgment in 1983. The Tribe remained landless until passage of the Act in 2000, which is intended to provide a land base for the Tribe in and around its ancestral homelands. Provisions of the Act. Section 5(b) of the Act transferred five non-contiguous parcels of federal land in and around the Park into trust for the Tribe. Congress limited the economic activities the Tribe could pursue on lands within the Park. The Tribe’s remaining trust lands are too arid or remote for residential or development purposes. Section 5(d) of the Act designates two parcels with appurtenant water rights for the Secretary to purchase from willing sellers for the Tribe. Congress did not specify a purchase amount, but CBO estimated the cost for both at about $14 million. 2 Section 5(d) also allows purchase of a mutually agreed upon substitute parcel instead. Substitute Parcel. After 16 years, the owners of the parcels designated for purchase by the Act remain unwilling to sell. The Tribe sought the Department’s agreement to substitute a 24-acre parcel in the City of Ridgecrest, California (Ridgecrest Parcel), on which the Tribe seeks to pursue gaming consistent with Section 7(c) of the Act. 3 The Solicitor’s Office determined that trust acquisition of an agreed-upon substitute was mandated by the Act. 4 It further concluded that substitution of the Ridgecrest Parcel and its intended use for Indian gaming were consistent with the Act’s language, purpose and policy. 1 Pub. L. No. 106-423, 114 Stat. 1875. S. Rep. 106-327 at 13 (2000). 3 § 7(c) provides that lands taken into trust for the Tribe under § 5 outside the Park shall be considered the Tribe’s “initial reservation” for purposes of the Indian Gaming Regulatory Act. 4 See Memorandum, Memorandum of Understanding to Take Land Into Trust Pursuant to Timbisha Shoshone Homeland Protection Act, Associate Solicitor – Indian Affairs to Principal Deputy Assistant Secretary – Indian Affairs. The Department considers a mandatory acquisition to be one directed by Congress or a judicial determination that requires the Secretary to accept or hold title in trust for an individual Indian or Tribe. 2 DOI-17-0494-D-000151 Memorandum of Agreement . On Januaiy 19, 2017 , the Tribe and the Departme nt executed an MOA prepar ed by the Solicitor 's Office to implement Sectio n 5(d)(2) of the Act. Under the MOA , the paiiies agree that the Ridgecrest Parcel shall be substituted for one of the parce ls identified in the Act. The Secretaiy agrees to purchase th e Ridgecre st Pai·cel for the sum of one dollai· ($1.00) on condition the Tribe complies with the Depa1iment 's man dato1y tmst acquisition proced ures;5complies with environm ental due diligence requirements of 602 DM 2 ; and submits title evidence in accordance with Department of Justice standards. The Secretaiy reserves the right to decline the pur chase in the event the Parcel fails to confo1m with these stan dards. The Tribe agrees that tiu st acquisition of the Ridgecrest Parcel shall fulfill the Secretaiy 's duties under Section 5(d)(2) an d that no fmihe r tm st lands shall be acquired thereunder. 5 See Bureau of Indian Affair s, Office ofTm st Services, Acquisition of Title to Land H eld in Fee or R estricted Fee Sta tus (Fee-to-Trust Handbook) at § 3.1.3 (June 20 16). DOI-17-0494-D-000152 Agenda Purpose of Meeting: to identify scope and process of Departmental review of scientific documents produced by USGS and USBR. 1. Current peer review process (for example, for Basin Studies - studies considering future water supplies and demands, including climate science). 2. Current policy review process (e.g., scope, timing, reviewer(s)) for scientific documents with policy components. 3. Discussion regarding observations of documents recently reviewed. 4. Scope (science or policy) of future Departmental review. 5. Peer review process forward. 6. Policy review process forward. 7. For Departmental review, determine what documents need to be reviewed, and the timing of the review. DOI-17-0494-D-000153 Pacific Northwest NATIONA L LABORATORY P,oudl) · Op.mted b)' Banene Smee 1965 DOI-17-0494-D-000154 Unique Capabilities P,oudl>Op,,,,1,d by BaffeUeSmee lC/65 Hanford B-Complex ERT Image Oblique View • B•Trenches High performance imaging of vadose zone contaminant distribution c ont;,m iM nl plun,l!~ BX-Tan ks. BY .Cribs f200 ;;. 160 ~ 120 • 6 •Tank5 573800 137200 cont ami na nt ') !JO I'., 4 04·0 0 ~M pl\lm -l' 573600 QS ,,l "'"' ~ 137600 • Real-time autonomous 3D Timelapse imaging of natural and engineered subsurface remediation processes • Advanced external tank leak detection system design and verification 573400 DOI-17-0494-D-000155 Vadose Zone 3D Contaminant Imaging Pacific Northwest NATIONAL LABORATORY Proudl'fOperated b)'Banene Smee 1965 High conductivity zones correspond to elevated saturation and high nitrate concentrations from past waste infiltration. 2006/2007 Surface ER Survey North ---. r-~iiiiii~i,~--------- =---~~-- i 1378001 · tank ■ well D infiltration gallery i i l I li i BY-Cribs •• •<>• •rn • -·• • m• •• •• ~• W• ••.J. '•·•• • :_ •• •••--•""' ••• . ... ,.. ... .. . · ··-· ······--······ -~-i.--l-··· ··-.··.···----···- □ boundary I area 137600 • electrode Ol C :E t:: 0 z 137400 137200 : ·-=~-44i July 26, 2017 . .. .~l.......i.._: : : ., ' . j_ 573800 574000 DOI-17-0494-D-000156 Data courte sy HydroGeoph ysics, Inc. ~ Pacific Northwest NA110 NA L LABORATORY Hanford B-Complex Subsurface Contaminant Imaging Impacts • 3D contaminant distribution verified by wellbore samples • Currently recollecting to determine plume migration since 2006 (time-lapse imaging) ' Water Tab le Surfac\ " BY CriO"s'P" ' , B Tank Farm I "' " - B Tank BY I DOI-17-0494-D-000157 Monitorir1g Vadose Zo1-1e Treatability Testing: Desiccation Pacific Northwest NATIONA L LABORATORY P,oudly Opemted b)' BaUeUeSmee 1965 Dry nitrogen injection system Instrument pane ls Extraction Blower Pre-desiccation ERT Image Nitrogen Injection BC-CribsDesiccationTT Field Site u Extraction Well Well 0.0 2. -1.8 Coarse-grained high permeability unit 4 ~ g, .J -2.6 6 8. 1 1 ~ a. 12 Q,) - -=--- --- b""':::....;.,--~ High gas-flow pathways inferred from ERT C 14. Fine-grained elevated contamination lenses July 26, 2017 DOI-17-0494-D-000158 ~ Monitoring ~adose Zone iTreatabilitY, ifesting: Desiccation Pacific Northwest NA110NA L LABORATORY Time-lapse 3D imaging of engineered vadose zone desiccation . - .... - ... .- - ,, <' Ext. well tnj. well -__o DOI-17-0494-D-000159 Ela p sed time (days): 36.0 Monitoring Vadose Zone Remedial Amendment Delivery Pacific Northwest NATIONA L LABORATORY P,oudlyOp.mt,d by BaneneSmee 1965 Problem: ► Monitoring/verification amendment delivery of Supplementary Information: ► Amendment increases saturation and pore flu id conductivity Objective ► Use time-lapse ERT monitoring to image amendment distribution over time ► Two surface ERT lines (@ 2. m) ► Real-time website delivery for duration of treatment Col~.mbia Riv~posphate Tanks DOI-17-0494-D-000160 ~ Monitoring ~adose Zone Remedial Amendment Delive[Y: Imaging Results Pacific Northwest NATIONA L LABORATORY 7:04 AM 11/6/ 15 Line l Line 2 North ing (m ) 594.16 Easting (m) DOI-17-0494-D-000161 animation Monitoring Vadose Zone Remedial Amendment Delivery: Real Time Imaging Pacific Northwest NATIONA L LABORATORY Proud/>·Operated by Banene Smee 196, Image Delivery Website Screenshot • Images were delivered in 'real-time' (-12 minutes from start of survey to image) for 21 day duration P11h . . ,'ph11splrnkInJ~ctmn 11/9/2015 4·04·0 . . 0 PM • Demonstrated capability to provide timely feedback • Opportunity to control and optimize delivery process during application PNNL's Real-Time Imaging Capability: Recognized by R&D Magazine as being in DOI-17-0494-D-000162 top 100 innovative technologies in 2016. Tank Farm External Leak Detection: State of Practice ► Current system uses existing well casings and tanks as leak detection electrodes ■ ■ NATIONA L LABORATORY Proudl'fOperated b)' Ba11elle Smee 1965 P ),:' J c:,,:, : :J ! :-Cf .' r, "'. :'"'.,~,t;,."!fi r. :J.:(t 2) Voltage measured on leaking tank. Developed without capability to numerically simulate detection response Tested and validated under best available, but non-representative field conditions ... provided overly optimistic estimation of detection capabilities Pacific Northwest I ;:! ll ~y . Iit i . \ / isosurfaces j J .: ~w.e~;l:;ge 41<,1.4,, I l,I; \ i 1) Current injected on Well casing (animation) DOI-17-0494-D-000163 Tank leak detection system response simulation using wellbore casing and surface electrodes Optimum %change measurement configurations Pacific Northwest NATIONAL LABORATORY Pmudl> Opemted by BaffelleSince IC/65 Leak Response 10 3 Optimum measurement when tanks are disconnected Optimum measu rement when tanks are connected - ---------, "a: E ~ .....10 - -- 2 1. 0 > ~ 10 Disconnected Tanks Connected Tanks . 1 1 : (.) C ro 1n 10 0 : , C/'J # ' ,,"' ,,' ,.. 0:: 1 ,, / c 10- 1 noise ./ /' --threshold -~~......-~n---""""""i' ,~• ,,,... Q) :~ ;l.... 1q1/ l Curr6~flt injep'tion electrode ,' t 1/oltage measurement electrode I .,.- ,' ,, ,, - I ,'--' ,,:--~-' 0 ::::.:::: 0 ,•' 3 10 - I 0 1o ""I ' 1 10 "'1 2 10 "I 3 10 " "I 4 10 Leak Volume (gal) DOI-17-0494-D-000164 Ju ly 26, 2017 11 5 10 Tank leak detection system response simulation using direct push buried electrodes NATIONAL LABORATORY Pmudl>Opemted b)' BaffeUeSince 1965 Detection Response Optimum % change measurement configuration a. 10 3 E Current Source Electrode Pacific Northwest 2 ~ en 10 +,J - Voltage ,,, , ,, •• direct push electro\des , ,, .. _ /,,,',. 0 > ,/ Improved ,/ sensitivity wit / buried electrodes .._., 10 1 Q) (.) C co ti 100 , ,, ,, ,, ,, , , .. , ,~' ,,, , ,, ,, ,/ ,,' /' ,,' ,, , ,, ,,,. ,', , ,,,·-· _,:.,,-- ' ___ . , ,, Current Sink Electrode 0~ casing as elect rodes •' I 10-3 0 1o ' I 1 2 3 DOI-17-0494-D-000165 Ju ly 26, 2017 12 4 10 10 10 10 10 Leak Volume (gal) 5 . ....;.;,_.~------ -- ----- -- - Electrical Imaging in the Presence of Tanks and Pipes: Contaminant Imaging Simulation True Conductivity Pacific Northwest NATIONA L LABORATORY Proud/>·Operated b)' BaUeUe Smee 196, ERT Imaging 7,500 gal release I I I I I I ' ' 23,500 gal release I I I I 11 I II I ·.- I '1' l I II I 11 I I I I ! I I 11I 11I , " I : II i II I I I 'I;.- I ' I'I ,, L I I 111 II : ! I 66,500 gal release I I I I I I •. . I I I I I I soil -~. DOI-17-0494-D-000166 111 I I conductiv ity I I (S/m) Se-4 0.07 10.0 Capability Summary and Applications to Date • Locating and monitoring 3D contaminant distribution and movement in the vadose zone (inside or outside of tank farms) • B-Complex , BC-Cribs , PUREX trench ,300 Area • Real-time 4D (3D + time) imaging of engineered remediation processes • 4D Desiccation (BC-Cribs) • 4D Liquid phase amendment delivery (300 Area) • 4D reactive gas phase amendment delivery (U Cribs) • Tank Farms • Capability to accurately model leak detection responses • Capability to optimize detection system performance • Capability to image contamination in the presence of metal pipes and tanks Pacific Northwest NATIONA L LABORATOR Y r,oudl>· Op,,,,1,d b)' Banene Smee 1965 DOI-17-0494-D-000167 Questions to Explore in Breakout Sessions Breakout Session 1- Common Regions 1. 2. What are the advantages and disadvantages of having common DOI regions? What are the advantages and disadvantages of adopt ing common regions based upon ecosystems? 3. What changes wou ld we need to anticipate/plan to undertake an exped itious , smooth trans ition to a common regional structure? 4. What cit ies, w ithin you r common region , wou ld you recommend be considered as an eventual DOI regiona l hub? Pick cit ies with reasonable cost of living where you and you r staff m ight enjoy living. Breakout Session 2 - Regional Leadership 5. What wou ld be the advantages and disadvantages of estab lishing an Inter ior Regional Leader position w ith in each common region to coord inate the fie ld activit ies of DOI leadership and staff? 6. What duties and responsib ilities should the Inter ior Regional Leader be assigned? 7. What approaches could be used to recon cile policy/programmat ic direct ion from Assistant Secreta ry' s/Bureau Directors while also empower ing an Interio r Regional Leader to prov ide leadersh ip or reso lve conflicts w ith in the common region? Breakout Session 3 - Reorganizing Staff Resources 8. What "operat iona l" versus " adm inistrative " funct ions occur w ith in your region? Try to pr iorit ize functions based upon mission impact, budget comm itment, and staff resources required. 9. What are the advantages and disadvantages of realigning and organiz ing existing agency regional and/or field staff by function? 10. What functions present the best opportun it ies to adopt a " shared services" approach to eff icient, cost-effect ive field imp lementation of our DOI mission activit ies? DOI-17-0494-D-000168 Questions to Explore in Breakout Sessions Breakout Session 1 – Common Regions 1. What are the advantages and disadvantages of having common DOI regions? 2. What are the advantages and disadvantages of adopting common regions based upon ecosystems? 3. What changes would we need to anticipate/plan to undertake an expeditious, smooth transition to a common regional structure? 4. What cities, within your common region, would you recommend be considered as an eventual DOI regional hub? Pick cities with reasonable cost of living where you and your staff might enjoy living. Breakout Session 2 – Regional Leadership 1. What would be the advantages and disadvantages of establishing an Interior Regional Director position within each common region to coordinate the field activities of DOI leadership and staff? 2. What duties and responsibilities should the Interior Regional Director be assigned? 3. What approaches could be used to reconcile policy/programmatic direction from Assistant Secretary’s/Bureau Directors while also empowering an Interior Regional Director to provide leadership or resolve conflicts within the common region? Breakout Session 3 – Reorganizing Staff Resources 1. What “operational” versus “administrative” functions occur within your region? Try to prioritize functions based upon mission impact, budget commitment, and staff resources required. 2. What are the advantages and disadvantages of realigning and organizing existing agency regional and/or field staff by function? 3. What functions present the best opportunities to adopt a “shared services” approach to efficient, cost-effective field implementation of our DOI mission activities? Breakout Session 4 – Improving Interior 1. Ask each person in the breakout session to name three things that the Secretary has the power to do that would improve Interior in terms of processes, procedures, workplace environment, policies, and/or operations to benefit both employees and our customers, the American people. DOI-17-0494-D-000169 As a group, from the ideas that have been floated by individuals in the group, have the group identify its 5 highest priority ideas. The group’s spokesperson should be prepared to share the top 5 ideas at the plenary feedback session. DOI-17-0494-D-000170 DOI Climate Change Research and Management Q & A’s What is DOI’s position on climate change? The Department’s land managers have and will continue to deal with changes to the land and resources they manage across the country and climate change is just another variable. We recognize and value the role DOI science plays in helping us understand and deal with the impacts and effects of climate to ensure we produce the best land and resource management results for the American people. Is DOI’s management role impacted by climate change? Interior's mission lies at the confluence of people, land and water. Just about every decision we make involves some element of change; drought, invasive species, infrastructure integrity, cultural and historical resources, to name just a few. Our mission requires the protection of trust resources in the face of all of types of change, and climate change is just another variable. It is, therefore, important that we understand, through science, the impacts and effects of climate change in order to effectively evaluate changes on the landscapes and resources we manage, and take prudent steps to adjust and adapt our management to new circumstances. Does DOI conduct climate change research? Yes. The issues we address and the many partners we serve require us to study and understand the effects of many different forms of “change”. Climate is one of many that impact DOI‘s land management mission. Does DOI science include understanding the present and future predictions of Greenhouse Gases (GHGs) in the atmosphere? No. USGS (and the rest of DOI) does not have an active program in understanding the current and future nature and/or composition of the atmosphere. In addition, USGS does not have an active program focused on the current and future predictions of how the GHGs will change in the future. USGS, however, does have a very active program that looks into the geologic record (thousands to even millions of years into the past) in order to understand the connection between various impacts and effects recorded in the geologic record (floods, droughts, fires, volcanic activity, sea level etc.) and changing magnitudes and rates of specific change drivers, including climate. This study of the Earth’s “tape recorder” allows us to better understand how any and all interacting drivers of future change will play out, and what related impacts and effects may be felt; information that is absolutely crucial to all resource management decisionmakers. Do DOI and its related Bureaus play a role in developing and implementing GHG emissions reduction regulations? DOI-17-0494-D-000171 No. USGS and the resource management Bureaus have no regulatory role in this regard. The DOI responsibility is to manage in the face of changing drivers (like climate and drought); not to attempt to regulate GHGs that might control only some of the drivers. Regardless of what regulations (from the local to the global scale) are imposed upon us, DOI will still be responsible for carrying out its organic mission: Protecting the Nation’s key living and non-living resources from the impacts, effects and consequences associated with the multitude of change drivers that comprise this dynamic planet. This will be the case regardless of any level of GHGs in the atmosphere or any sanctions imposed that drive nations to curtail their associated GHG outputs. DOI-17-0494-D-000172 DOI Role in Climate Change Talking Points Interior Department’s position on climate change • Change is the one constant at Interior, and always has been. For 168 years, the Department’s land managers have dealt with changes to the land and resources they manage across the country. • Floods, droughts, increased recreational demands, wildfire, economic development, enhanced understanding of conservation biology, invasive species, plant and animal diseases, human population growth, endangered species designations, and many other variables have required Interior’s land managers on the ground to adapt to changing circumstances. • In that broad context, climate change is another variable, and often amplifies other issues that our land managers need to consider as they do their jobs. • The forces of change require them to have the best information, tools and resources to better understand on-the-ground landscape changes and to develop strategies to adapt to these changes while ensuring they produce the best land and resource management results for the American people. Interior’s role in climate change research • Conditions on the ground vary greatly from one part of the country to another. As a result, a “one size fits all” national policy doesn’t work very well for our land managers or the American people. • Interior through the USGS helps land managers understand the local impact of the various changes in the environment that need to be considered as they do their daily jobs and make land management plans for the future. Scientists gather and synthesize all the relevant information from available sources including from our own long-term datasets, to create new scientific knowledge and tools that can be used to help local managers make informed decisions. • Interior does not conduct climate change research of the type often discussed in the popular press. We are not modelling greenhouse gas concentrations or predicting planetary changes in average temperature, let alone trying to establish causality for any changes in climatic conditions. • Instead, our science addresses practical questions like: will a coastal community in Louisiana have to plan for more severe or frequent floods over the next decade? Will warmer winters in Colorado mean that more invasive insects survive the winter therefore killing more trees in Summit County forests the following summer, thus increasing the threat of wildfire to local communities? Will our reservoirs in California that provide water to farmers and cities have to operate differently because there may be more rain and less snow in the early winter of the year? • Our science is designed to help land managers address specific uncertainties in particular locations, so they have the best chance of making the decisions that will provide the greatest benefit to the people they serve. These are real problems facing our land managers and USGS is working to provide real solutions. DOI-17-0494-D-000173 GAO's 23 Open Recommendations Related to Indian Education Product GA0-13-774 I Recommendation I Lead 1. The Secretary of the Interior shou ld direct the Assis tant Secretary-I ndian Affairs to deve lop and BIE implemen t dec ision-mak ing procedu res fo r the Bureau of Indian Education (BIE ) that spec ify w ho should be invo lved in the dec ision-making process for key dec isions that affect BIE and its schools to ensu re that BIE has effective managemen t contro ls, is accountable for the use of federa l funds , and comports with fede ral laws and regulations . Such procedu res should be clearly documented in managemen t direct ives , admin istrative policies, or ope rating manua ls. GA0-13-774 4. The Secretary of the Interior shou ld direct the Assis tant Secretary-I ndian Affairs to deve lop a strategic BIE plan that includes detai led goa ls and stra tegies fo r BIE and for those offices that support Bl E's mission, including the Bureau of Indian Affa irs, to help Indian Affairs effect ively imp lement its rea lignmen t. Deve lopme nt of the strateg ic plan shou ld incorporate feedback from BIE officials and other key stakeho lders . GA0-13-774 5. The Secretary of the Interior shou ld direct the Assis tant Secretary-I ndian Affairs to revise its strateg ic DAS-M/BIE workfo rce plan to ensure that employees prov iding admin istrative support to BIE have the requ isite knowledge and skills to help BIE ach ieve its miss ion and are placed in the appropria te offices to ensu re that reg ions w ith a large numbe r of BIE schoo ls have sufficient support. GA0-15-121 1. The Secretary of the Interior shou ld direct the Assis tant Secretary-I ndian Affairs to deve lop a BIE/DAS-M comp rehens ive workfo rce plan to ensure that BIE has an adequate number of staff with the requ isite knowledge and skills to effectively ove rsee BIE schoo l expendi tures . GA0-15-121 2. The Secretary of the Interior shou ld direct the Assis tant Secretary-I ndian Affairs to deve lop a process to BIE/DAS-M share relevant informat ion, such as single aud it reports, with all BIE staff respons ible for oversee ing school expend itu res to ensu re they have the necessary info rmation to identify schoo ls at risk for misus ing funds. 1 DOI-17-0494-D-000174 GA0-15-121 3. The Secretary of the Interior shou ld direct the Assis tant Sec retary-I ndian Affairs to deve lop w ritten BIE 4. The Secretary of the Interior shou ld direct the Assis tant Sec retary-I ndian Affairs to deve lop a risk-based BIE procedures for BI E to oversee expend itu res fo r major programs , includ ing Interior's Indian School Equa lization Program . These procedures shou ld include requ iremen ts for staff to cons istently documen t the ir monitoring activities and actions they have taken to reso lve financ ial weaknesses identified at sc hools. GA0-15-121 approach to oversee BIE schoo l expe nditures to focus Bl E's monitor ing activities on schoo ls that aud ito rs have found to be at the greatest risk of misus ing federa l funds. GA0-16-313 1. To support the co llection of comp lete and accurate safety and hea lth informat ion on the condition of BIE DAS-M/BIA sc hool fac ilities nationally , the Secretary of the Interior shou ld direct the Assis tant Sec retary-I ndian Affai rs to ensu re that all BIE schoo ls are annua lly inspected for safety and hea lth, as requ ired by its policy , and that ins12ectioninformat ion is com12lete and accu rate. GA0-16-313 2. To support the co llection of comp lete and accurate safety and hea lth informat ion on the condition of BIE DAS-M sc hool fac ilities nationally , the Secretary of the Inte rior shou ld direct the Assis tant Sec retary-I ndian Affai rs to revise its inspection guida nce and too ls to ensure that they are comprehens ive and up-to-date; requ ire that reg ional safety inspecto rs use them to ensure all vita l areas are cove red, suc h as schoo l fire protec tion; and mon ito r safe t:i£ins12ectors' use of 12rocedures and too ls across regions to ensu re the:l£are co nsistentl:i£ado12ted . GA0-16-313 3. To ensure that all BIE sc hools are positioned to add ress safety and hea lth prob lems w ith their facilities and prov ide student environments that are free from hazards, the Sec retary of the Interio r shou ld direct the Ass istant Secretary -Indian Affa irs to deve lop a plan to build schoo ls' capac ity to promp tly address safety and health problems w ith facilities. 2 DASM/BIE/BIA DOI-17-0494-D-000175 GA0-16-313 4. To ensure that all BIE schools are positioned to add ress safety and health problems w ith their facilities BIE andi rovide student environments that are free from hazards, the Secretary of the Interio r should direct the ssistant Secretary -Indian Affa irs to cons istent ly mon ito r w hether schools have estab lished requ ired safety committees . GA0-17-421 1. The Secretary of the Interior shou ld direct the Assis tant Secretary-I ndian Affairs to deve lop and take BIA/DAS -M correc tive actions, in consu ltat ion w ith Interior 's Designated Agency Safety and Health Offic ial, to address BIA safety program weak nesses ident ified in prior Interio r eva luations. GA0-17-421 2. The Secretary of the Interior shou ld direct the Assis tant Secretary-I ndian Affairs to assign respons ibility DAS-M to a speci fic office or official to deve lop and implement a plan to assess emp loyees ' safety training needs and monito r employees' comp liance with Indian Affa irs' safety train ing requireme nts. GA0-17-421 3. The Secretary of the Interior shou ld direct the Assis tant Secretary-I ndian Affairs to ensure that BIA's emp loyee perfo rmance standards on inspect ions are cons istently incorporated into the appra isal plans of all BIA perso nnel w ith safety prog ram respons ibilities. BIA GA0-17-421 4. The Secretary of the Interior shou ld direct the Assis tant Secretary-I ndian Affairs to deve lop a BIA performance standa rd on inspect ion report qua lity and estab lish a process to routinely monito r the qua lity of inspect ion repo rts . Monitoring cou ld include, but not be limited to , the fo llow ing areas: accuracy of risk leve ls and abateme nt timeframes assigned to deficienc ies and clarity of language to descr ibe safety hazards and recommended correc tions. GA0-17-421 5. The Secretary of the Interior shou ld direct the Assis tant Secretary-I ndian Affairs to require safety DAS-M inspectors to document when inspect ion reports are sent to schoo ls and establish a process to rout inely monito r the timeliness of reports aga inst Indian Affa irs' regui red 30-day t1meframe. 3 DOI-17-0494-D-000176 GA0-17-421 BIA 6. The Secretary of the Interior shou ld direct the Assis tant Secretary-I ndian Affairs to use informa tion gathe red from monitor ing the timeliness of schoo l safety inspect ion repo rts to assess the perfo rmance of emp loyees w ith safety program respons ibilities and hold them accountab le. GA0-17-447 1. To ensure accountab ility fo r BIE school faci lity fu nds, the Secretary of the Interior shou ld direct the DAS-M Assis tant Secretary-Ind ian Affa irs to develop a comprehens ive long-term capital asset plan to inform its allocat ion of schoo l faci lity funds. Such a plan should include a prioritized list of schoo l repa ir and maintena nce projects w ith the greatest need for fund ing. GA0-17-447 2. To ensure accountab ility fo r BIE school faci lity fu nds, the Secretary of the Interior shou ld direct the DAS-M Assis tant Secretary-Ind ian Affa irs to provide more deta ils in Indian Affa irs' annua l congressiona l budget justifications on spec ific needs at BIE schools , including informa tion on proposed cap ita l expenditures , and updates on previous school const ruction projects . GA0-17-447 3. To ensure accountab ility fo r BIE school faci lity fu nds, the Secretary of the Interior shou ld direct the DAS-M Assis tant Secretary-Ind ian Affa irs to deve lop and implement guidance for its project manage rs and contracting officers regarding effective use of accountabil ity measures . GA0-17-447 4. To ensure accountab ility fo r BIE school fac ility funds , the Secretary of the Interior shou ld direct the DAS-M Assis tant Secretary-Ind ian Affa irs to clarify Indian Affa irs' des ign handbook requirements to exp lain w hen and how schoo l des igns can devia te from spec ific requ irements- such as heat ing and coo ling systems with complex features - w hen the life cycle cost ana lysis demons trates the requ iremen ts are not costeffect ive or pract ical given suc h facto rs as the tec hnical capacity of school fac ility staff. GA0-17-447 5. To ensure accountab ility fo r BIE school faci lity fu nds, the Secretary of the Interior shou ld direct the DAS-M Assis tant Secretary-Ind ian Affa irs to improve overs ight and techn ical assista nce to tribal organ izat ions to enha nce tr ibal capac ity to manage major construct ion projects . 4 DOI-17-0494-D-000177 GA0-17-447 6. To ensure accountab ility fo r BIE school faci lity fu nds, the Secretary of the Interior shou ld direct the DAS-M Assis tant Secretary-Ind ian Affa irs to develop and implement guidance for mainta ining comp lete contract and grant files fo r all BIE schoo l construct ion projects. 5 DOI-17-0494-D-000178 FAST-41 Initiation Timeline and Checklist: Bay State Wind Wednesday, November 29 2017 • Acknowledgement email to the applicant • Notification to potential cooperating/participating agencies and request for comments (due Monday, Dec 4th) • Schedule internal review meeting Tuesday, December 5 2017 • Determine if additional information is needed from the applicant. The FIN should include the following information: o A statement of the purposes and objectives of the proposed project; o A concise description, including the general location of the proposed project and a summary of geospatial information, if available, illustrating the project area and the locations, if any, of environmental, cultural, and historic resources; * o A statement regarding the technical and financial ability of the project sponsor to construct the proposed project; o A statement of any Federal financing, environmental reviews, and authorizations anticipated to be required to complete the proposed project; o An assessment that the proposed project meets the definition of a covered project and a statement of reasons supporting the assessment; and o A statement indicating whether the project is likely to require a total investment greater than $200 million. • If FIN is complete, determine whether the project is covered and forward notification to FPISC. *Working definition of a complete proposal: Project proposal is clearly defined and include sufficient information to initiate the review/permitting process. DOI-17-0494-D-000179 Dear Applicant, The purpose of this letter is to notify you that your proposed project may be eligible for inclusion on the Permitting Dashboard established pursuant to Title 41 of the Fixing America’s Surface Transportation Act (FAST-41). FAST-41 defines a covered project as one that requires authorization or environmental review by a Federal agency involving construction of infrastructure for a covered sector, is subject to the National Environmental Policy Act of 1969 (NEPA), is likely to require a total investment of more than $200,000,000, and does not qualify for abbreviated authorizations or environmental review processes for all of its environmental reviews and authorizations. It may also include projects in covered sectors that are subject to NEPA for which, due to their size and complexity, the applicable Federal agencies determine the FAST-41 coordination process and oversight would be beneficial. Being designated as a covered project under FAST-41 does not guarantee federal approval nor result in prioritization ahead of other permitting projects. However, covered projects are likely to benefit from enhanced early coordination and the development of a Coordinated Project Plan, including a schedule for public outreach and coordination and plan for completion of all required Federal environmental reviews and authorizations. Pre-Notification Coordination. In accordance with section 4.3 of the FAST-41 Guidance, applicants are invited to utilize pre-application planning to help identify and address issues before formal permit application processes begin, and to improve the coordination of permitting across federal, state, local, and tribal governments. Pre-application planning is intended to: provide a roadmap and encourage early coordination between project sponsors and permitting agencies on transmission projects; improve interagency and intergovernmental coordination; encourage early engagement with local, state and tribal stakeholders; and to help ensure project proponents develop and submit accurate and complete information early in the project planning process. Upon request for pre-notification coordination, within 60 days, the Department of the Interior will provide information regarding: (1) the availability of information and tools, including pre-application toolkits, to facilitate early planning efforts; (2) key issues of concern to each agency and to the public; and (3) issues that must be addressed before an environmental review or authorization can be completed. Initiation. Should you seek to have your project considered for designation as a covered project under FAST- 41, you must submit an Initiation Notice to fast41initiation.ios.doi.gov and the Executive Director of the Federal Permitting Improvement Steering Council to have the project considered for designation as a covered project. Instructions on how to submit the Initiation Notice as well as additional information regarding designation of covered projects are attached to this letter and are also available on the Permitting Dashboard at: https://www.permits.performance.gov/tools/interim-notice-initiationinstructions. Once a covered project is designated, the project sponsor is expected to cooperate throughout the Federal environmental review and authorization process by providing the necessary DOI-17-0494-D-000180 information and documentation and participating in decisions that affect the project review schedule, where appropriate. Participation in FAST-41 is optional, and the applicant may opt out of the process at any time. Projects that are not designated as a covered project under FAST-41 will continue to proceed under applicable procedures and timelines, including Executive Order 13807, which sets as a policy goal “completing all Federal environmental reviews and authorization decisions for major infrastructure projects within 2 years,” and Department of the Interior Secretarial Order 3355 which states that “each bureau shall have a target to complete each Final EIS for which it is the lead agency within 1 year from the issuance of a Notice of Intent (NOI) to prepare an EIS.” If you have any questions or would like to talk further, please contact Erika Vaughan at 202219-2257. Thank you, James Cason, Associate Deputy Secretary, Department of the Interior Chief Environmental Review and Permitting Officer DOI-17-0494-D-000181 Key Messages DOI managers deal with changes to the land and resources they manage at the local level every day. Climate is but one of the drivers, yet it often amplifies both other changes and the broader issues that managers need to consider. DOI scientists help resource managers understand and more effectively deal with the impacts and effects of on-the-ground landscape changes, providing information and knowledge that is needed to adjust and adapt management actions to new circumstances while ensuring the best land and decision-making results for the American people. DOI does not conduct research related to understanding the current and future nature and/or composition of the atmosphere or predicting planetary changes in average temperature. 30-second Elevator Speech Every day, DOI managers deal with changes to the land and resources they manage at the local level. Impacts and effects of various forms of change include floods, droughts, wildfire, invasive species, increased recreational demands, and human population growth. Climate change is just one of a number of change drivers and often amplifies the broader issues that land and resource managers need to consider. The issues we address and the many partners we serve require us to study and understand the effects of many different forms of “change”, including climate. Our scientific observations and understanding of the Earth’s past and present conditions allow us to better describe how drivers of future change will play out, and what related impacts and effects may be felt;- -- information that is absolutely crucial to all land and resource managers for making well-informed and effective decisions. DOI-17-0494-D-000182 The Secretary's Suggested Demarcation -·---·I ' Map#l As of September 1, 2017 ...... , ....... _.._, ............. ,._ --- - = ---· ... ·-. ... _ __, n -- ..,.._ -- ....... .... ~ 0\ ... f 'I,# ..,_ , ..... .. u,. ,.__ .... _. North Central 5 South Central Sou th 6 -... Pacific Islan ds 13 Atlantic Gulf 2 DOI-17-0494-D-000183 U.S. Reglonalizatlon : 12 Regions Combining Watershed and Physiographlc Criteria - v3 Proposed Regional Headquarter Candidate Cities As of August 2, 2017 --. ----------... .... .. -.. --..--~-_....... .. ...... -~- ..--· .... -···-· --...... ,_._ ---· ---· ----·- ----.. ..... 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' ... ..... •• -· ..... -_ --....--...... ·-·-.......' Abi lene S outh c.entral OOIHO • 7 • 00,,r.Ag..,ey HO • NoHO Por.eallllRe,gloe CJ \ O Wltanllad BP11yslog111j>llle8a..u 001 L•d au. Pl>MIORICO I Vlrg la ISJ<11tela ill!O S-IIIIH Of Ille 1111 (R 17.6 ------------------------------------------------------------------------------- Q Projectsserved by 1 Team Projectsserved by 2Teams Projectsserved by 3Teams *NationalAverage:15.7% 0· A. 1 • • Data from feedingamerica.org Overview Since deploying for their first project November 1st, 23 teams of 8-12 members have worked to address food insecurity in the Southwest Region’s states through preparing and serving meals, tutoring and mentoring youth, leading recreational activities, building, expanding, and maintaining community gardens, and revitalizing community infrastructure. Teams have worked with sponsoring agency for 7-13 weeks, and several project sponsors have been awarded multiple teams in the past year to assist with larger projects. Farm to School Projects Denver Green School Denver, CO Denver Green School is an innovation public school, through which it has implemented a farm-tocafeteria program. The school’s focus on project based learning allows teachers and students to engage in relevant, self-directed, teacher-facilitated learning. The team supported the school’s effort to increase the capacity of the farm to cafeteria program through gardening, running the farm stand, and supporting student projects that directly relate to the garden. The team distributed 10,000 pounds of food to 200 people, and tended 1 garden. DOI-17-0494-D-000219 Montezuma School to Farm Project Mancos, CO A team deployed to support the Montezuma School to Farm Project, which focuses on providing integrated, hands-on school garden classes in Montezuma County. Members assisted with the expansion of the school garden programs which serve more than 4,000 students. This will improve the access to healthy, fresh foods, as well as the knowledge needed for how to grow it. Additionally, the expansion will increase the food production by more than 6,000 pounds of food. This will allow the program to expand and grow in the coming years and continue to address pressing community needs. The team harvested 154 pounds of food and tended 96 gardens. City of Little Rock – Love Your School (3 teams) Little Rock, AR The Love Your School (LYS) childhood obesity intervention is built upon a rigorous application of a model of health behavior change advanced by the Centers for Disease Control and Prevention (the CDC) entitled the Socio-Ecological Model with the expectation that positive health and academic outcomes for obese or overweight low income students will be achieved when all components of the model are implemented. The three teams deployed to Love Your School have supported this holistic approach through teaching nutrition lessons in Elementary schools, maintaining and expanding school gardens, implementing a walking program for students, and assisting with cooking lessons for parents of students. The teams tended 149 gardens and presented nutrition lessons to 7,801 students. Community Garden Projects University of Arizona Extension – Tucson Village Farm Tucson, AZ Tucson Village Farm addresses high poverty and obesity rates in the city through hands-on agriculture and nutrition education, as well as urban food production and distribution. The team installed fencing to expand growing areas, constructed pathways, increased the community garden by over an acre, taught youth about agriculture and nutrition, assisted with the planting and harvesting of fruits and vegetables, and supported the Farm’s largest fundraising event, the annual Harvest Festival. The team tended 1 garden and distributed 3,880 pounds of food. University of Arizona Extension – Pinal County Casa Grande, AZ Through the Pinal County Extension, the team worked with several community organizations, including the Pinal County Discovery in Garden Setting, constructing raised beds, and assisting with installation of the garden. In addition, the team worked with school and community gardens to prepare seed beds, construct a watering system, and educate youth about gardening. The team distributed 50 pounds of food and tended 4 gardens. Barrett Foundation Albuquerque, NM The Barrett Foundation provides housing and support service to women and children striving to break the cycle of homelessness. To address issues of hunger and poor nutrition among the homeless population the shelter, a team helped expand the Foundation’s community garden through construction of a greenhouse, raised beds, and irrigation systems. In total, the team distributed 3,431 pounds of food. DOI-17-0494-D-000220 Jerusalem Farm Kansas City, MO Jerusalem Farm is committed to sustainability and simplicity, and hosted a team for capacity building purposes. Over their 6 week stay, members of the NCCC team assisted Jerusalem Farm through repairing a barn, building a storage shed for bikes (which serve as transportation for the composting program), completed a greenhouse, expanded the neighborhood-wide composting program, installed irrigation systems, prepared the community garden, collected 555 pounds of food, and assisted with home repairs in the community. Osage Nation (2 teams) Pawhuska, OK The Osage Nation is developing a farm and Eco Park to empower communities to engage and learn about food systems, and the park will include recreation areas, demonstration gardens with informational boards, farmers markets, food preparation demonstrations, and outdoor classrooms. Teams serving this project have cleared brush, removed invasive and non-native plants, created ADA accessible trails, and improved ADA accessibility in 2 gardens and greenhouses, and helped laid out different areas for the Eco Park. International Sonoran Desert Alliance Ajo, AZ The International Sonoran Desert Alliance (ISDA) works to revitalize the city of Ajo, in hopes to increase the appeal, thereby increasing tourism and the economy. As part of their project, the team serving with the ISDA supported other local non-profits through constructing a greenhouse, maintaining and expanding community gardens, and supporting the weekly farmers markets to provide healthy, fresh foods to members of the community. In total, the team harvested 117 pounds of food and worked in 5 gardens. West Plains Community Garden West Plains, MO West Plains Community Garden helps combat hunger, poor eating habits, and the financial burden of high grocery bills through the community garden. A team deployed to assist with maintenance, expansion and accessibility improvement work at the garden, as well as making the garden itself more sustainable. Additionally, the team assisted with the educational horticultural center slated to open in 2017. The team repaired the greenhouse and renovated walkways in the community garden, and planted trees, shrubs, and perennials in the botanical garden. The team helped receive and inventory 7,800 pounds of food and tended 4 gardens. InteGreat! & Eagle River Youth Coalition Edwards, CO InteGreat! Is developing a sustainable, collective solution to child food insecurity. The team that deployed April 12 prepared and served meals (free for children between 0-18 years old), assisted with family enrichment activities and youth development programs, organized volunteers, conducted outreach, and supported the annual soccer program. Additionally, the team supported emergency food assistance providers, building greenhouses and infrastructure around community gardens, helping families start their own gardens, and create safe spaces for children to play throughout the summer. The team helped receive and inventory 7,800 pounds of food and worked in 46 gardens. DOI-17-0494-D-000221 University of Arizona Cooperative Extension – Santa Cruz County Nogales, AZ The Santa Cruz Cooperative Extension is an outreach arm of the College of Agriculture and Life Sciences, and spearheads community collaboration to advance local projects in an effort to improve lives and communities. As part of their project work, the team that deployed worked at Nogales High School planting trees, maintaining the gardens, and leading youth development activities with students. The team also served 1,500 meals. Not Forgotten Outreach (3 teams) Taos, NM Not Forgotten Outreach strives to create a Respite Center for military families and veterans to support mental health and reintegration needs. As part of the respite center, Not Forgotten Outreach envisioned a farming component they refer to as “Dirt Therapy.” The organization is based on grassroots volunteer opportunities, and the three teams that have served during Class 22 have begun to construct, expand, and maintain the dirt therapy garden for military families at the Respite Center. The three teams tended 9 gardens, provided 43 people with food, and served 1,111 meals. Food Bank Projects The Action Center Lakewood, CO The Action Center strives to create pathways to self-sufficiency through interventions remove families from crisis and prevent further situations through connection to programs to lead families back to stability. The team assisting the Action Center helped manage thousands of incoming donations to the Grocery and Household Shelter, assisted with the Thanksgiving Food Distribution which provided Thanksgiving dinners for over 6000 individuals. The team received, inventoried, and distributed 158,000 pounds of food to 4,272 people. Summer Food Service Program Projects Forest Park Conference & Retreat Center Topeka, KS One team deployed to Topeka to work with the Forest Park Conference & Retreat center, and as part of their service, members conducted outreach, planned and implemented USDA’s Summer Meals programs for low income youth. The team tended 7 gardens and served 3,400 meals. AppleTree Education Center (3 teams) Truth or Consequences, NM AppleTree Edcuation Center is the only licensed child care center in Sierra County, and strives to meet the needs of the whole child, which includes the family and community to provide hope for a brighter future and decrease the achievement gap. While previous teams have supported the day care center, which provides food to low income students, the team that deployed on April 12 continued this service, as well as prepared and distributed USDA Summer meals to low income youth. In total, the three teams served 22,125 meals. DOI-17-0494-D-000222 Veterans ask: 1. Funding for crews and internships for Veterans with clear outcomes. Increase opportunities for veterans to complete meaningful and needed conservation projects. Note, we are not asking for new funding, but prioritizing Corps where appropriate. 2. Hire vets coming out of conservation corps programs into permanent positions – expand direct hire authority for corps. Corps can provide a clear pathway for Veterans to develop the skills and experience needed to be successful DOI employees. 3. Support capacity to provide a consolidated recruitment function for Veterans. This can be through connections to veterans serving organizations and infrastructure funding to develop a national Veterans conservation corps applicant pool. 4. Agreement mechanisms- Cut red tape so we can do more project work. Establish a comprehensive DOI Cooperative Agreement with Conservation Corps including but not limited to Veterans. 5. Visit a Veterans fire crew this winter. There will be several Veterans Fire Crews fielded this winter in the southeast region. It is a great opportunity to see the work first hand. DOI-17-0494-D-000223 United States Department of the Interior OFFICE OF THE SECRETARY Washington, DC 20240 IN REPLY REFER TO: 7202.4-OS-2018-00249 November 8, 2019 Via email: sara.creighton@americanoversight.org Sara Creighton American Oversight 1030 15th Street, NW (B255) Washington, DC 20005 Re: American Oversight v. U.S. Department of the Interior, 1:18-cv-00534 Dear Ms. Creighton: On November 1, 2017, Mr. Austin Evers of American Oversight filed a Freedom of Information Act (FOIA) request seeking the following: 1. All calendars or calendar entries for any of the following individuals between the date of January 20, 2017, to the date a search is conducted, including any calendars maintained on behalf of these individuals (e.g., by an administrative assistant or a scheduler): a) b) c) d) e) Secretary Ryan Zinke Deputy Secretary or Administrator to Secretary Zinke James (Jim) Cason, Associate Deputy Director Scott Hommel, Chief of Staff Deputy Chief of Staff to the Chief of Staff, Scott Hommel 2. Any calendars maintained for the Secretary's Conference Room, and the Deputy Secretary or Administrator's Conference Room. Mr. Evers' request was received in the Office of the Secretary FOIA office on November 1, 2017, and acknowledged on November 8, 2017. We are writing today to provide a partial response to Mr. Evers' request. Additional releases will be provided under separate cover. We have enclosed 1 file consisting of 40 pages. Of those 40 pages, 11 pages are being released in full, and 29 pages contain redactions as described below. Portions of the enclosed documents have been redacted pursuant to Exemption 4 of the FOIA (5 U.S.C. ? 552 (b)(4)) under the following privileges: Commercial or Financial Information Ms. Sara Creighton 2 Exemption 4 protects "trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential." The withheld information is "commercial or financial information". The company that supplied this information (the submitter) is considered a person, because the term "person," under the FOIA, includes a wide range of entities including "corporations". Also, the submitter does not customarily release this information to the public, so the information is confidential for the purposes of Exemption 4. If you have any questions about our response to your request, you may contact Daniel Mauler, Assistant United States Attorney, by phone at (202) 616-0773 or by email at dan.mauler@usdoj.gov. Sincerely, Digitally signed by ANTHONY ANTHONY IRISH IRISH Date: 2019.11.08 14:35:25 -05'00' Anthony Irish Office of the Secretary Holland & Knight 10 St. James Avenue | Boston, MA 02116 | T 617.523.2700 | F 617.523.6850 Holland & Knight LLP | www.hklaw.com Mark C. Kalpin +1 617-305-2076 Mark.Kalpin@hklaw.com November 28, 2017 Via Email Delivery (FAST.FortyOne@fpisc.gov) Janet Pfleeger, Deputy Director Federal Permitting Improvement Steering Council 1800 F Street, NW Washington, DC 20405 Re: FAST 41 Initiation Notice - Bay State Wind Project Dear Ms. Pfleeger, On behalf of Bay State Wind LLC ("BSW"), please find attached a FAST 41 Initiation Notice ("FIN") for the Bay State Wind Project. BSW is proposing to construct and operate an offshore wind project with a nameplate capacity of up to (b) (4) off the coast of the Commonwealth of Massachusetts within the area encompassed by Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS-A 0500), which was issued to BSW by the U.S. Bureau of Ocean Energy Management. - The FIN contains confidential and privileged trade secrets and commercial or financial information of BSW, and are protected from disclosure under exemption 4 of the Freedom of Information Act, 5 U.S.C. ? 552(b)(4). BSW would face significant commercial harm if Sections 4.1 and 4.2 of the FIN were disclosed to the public, or to other entities that may not be obligated to protect their confidentiality. Since this exemption is designed to encourage submitters to voluntarily provide confidential commercial information to the government, while at the same time safeguarding them from the competitive disadvantages that could result from disclosure, BSW requests confidential treatment of Sections 4.1 and 4.2 of the FIN. Anchorage | Atlanta | Austin | Boston | Chicago | Dallas | Denver | Fort Lauderdale | Jacksonville | Lakeland | Los Angeles | Miami New York | Northern Virginia | Orlando | Portland | San Francisco | Tallahassee | Tampa | Washington, D.C. | West Palm Beach DOI-17-0494-E-000001 Janet Pfleeger, Deputy Director November 28, 2017 Page 2 Please do not hesitate to contact me if you have questions or need additional information. Best regards, Mark C. Kalpin Attachment Cc: U.S. Department of Interior FAST 41 Coordinator (FAST41initiation@ios.doi.gov) Dr. Walter Cruickshank, Acting Director, U.S. Bureau of Ocean Energy Management (walter.cruickshank@boem.gov) (b) (4) DOI-17-0494-E-000002 Fast 41 Initiation Notice ("FIN ")1 1. Project Information 1.1. Title The title of the proposed proj ect is the Bay State Wind Proj ect. 1.2. Sector The Fast 4 1 project sector is "Renewable Energy Production." 1.3. Type The Fast 4 1 project type is "W ind : Federal Offshore." 1.4. Location The Project Sponsor (through one or more affiliated special purpose entities) is propos ing to build an offshore wind proj ect located on the Outer Continental Shelf off the coast of the Commonwealth of Massac husetts within the area encompassed by the Commercial Lease of Submerged Lands for Renewable Energy Develop ment on the Outer Continental Shelf (OCS-A 0500) (th e "Lease "), which was issued by the U.S. Bureau of Ocean Energy Management ("BOEM "). 2. Project Sponsor Information 2.1. Name The Project Sponsor is Bay State Wind LLC ("BSW"), which is a 50/50 jo int venture of Orsted North America Inc. ("Orsted NA") , an affiliate of Orsted A/S ("Orsted"), and Eversource Investment LLC ("ESI"), an affiliate of Everso urce Energy ("Everso urce"). 2.2. Contact The official point of contact for BSW is: 1 Sections 4.1 and 4.2 of this FIN contain confidential and privileged trade secrets and commercial or financial info1mation ofBSW , and are protec ted from disclosure under exemption 4 of the Freedom oflnfo1mation Act, 5 U .S.C. ? 552(b) (4) . BSW would face significan t commercial harm if Sections 4.1 and 4.2 were disclosed to the public , or to other entitie s that may not be obligated to protect their confiden tiality . Since this exemption is designed to encourage submitters to voluntarily provide confiden tial commercial info1mation to the govemment , while at the same time safeguarding them from the competitive disadvantages that could result from disclosure , BSW requests confiden tial treatment of Sections 4.1 and 4.2. DOI-17-0494-E-000003 3. Project Purpo se and Objective s BSW intends to develop , build, operate, an d own (through one or more affiliated special purpose entities) an utility-scale offshore wind farm with capacity up to located 15 to 25 miles off the south coast of Massac husetts within the Lease area the "ProJect" . The Proj ect may be developed in phases, and will consist of betwee n wind turbine generator~") , ~ abling, new onshore and o s ore su stations, expo1i cables, _ and onshore works for connection to the wholesale electric giid admini stered by ISO New England ("ISO-NE"). A portion of the Project is being developed to serve the Massac husetts market pursuant to the on-going Commonwealth of Massac husetts ' Act to Promote Energy Diversity Section 83C procurement process , with a propose d capacity between 400 to 800 MW .2 Solicitations for additional offshore wind capacity ar e expected in th e states of Connecticut, Rhode Islan d and New York , in addition to subsequent procurements under Massac husetts' Section 83C process, and BSW may fmiher develop the Lease area to serve these markets. The individual wind turbine size and total number ofWTGs may change in order to optimize projec t cost an d perfo1m an ce prior to the constrnctio n phase for the Project. The Constrnction and eration Plan ("CO P") to be filed with BOEM for th e Project will seek capac== ut. Total projec t costs are estimated betwee nbased on a build-out. 4. Project Description An overv iew of the Project 's location, components, and related environm ental, cultural, and historic resources is provided in the following subsectio ns. 4.1. Geospatial Information As mentioned above, the Proj ect is an offshore wind projec t located on the Outer Continental Shelf ("OCS") off the coast of the Commonwealth of Massac husetts, pur suant to the Lease. The Lease was granted by the United States of Ame rica acting through BOEM per the Outer Continental Shelf Lands Act. The Lease area in which the Project will be located is depicted below in Figure 1: 2 Commonwea lth of Massachusetts. An Ac t to Promote Energy Diversi ty. H. 4568 , 189th Genera l Cowt (2016) . h s://male islatw-e. ov/Bills/ 189/House/H4568 2 DOI-17-0494-E-000004 Figure DOI-17-0494-E-000005 The following parameters are being characterized and assessed as part of the Project design and planning. In general, the waters off southern New England experience high levels vessel traffic. BSW is currently conducting meteorological and metocean evaluations inclusive of wind speed and direction at multiple heights, as part of the site assessment activities within the Lease area. The Project Site Assessment Plan ("SAP") describes how, where, and when the data will be collected and was approved by BOEM approval on June 29, 2017. On July 8, 2017, BSW deployed two floating wind-measurement LiDARs and one wave-measurement buoy within the Lease area. Data will be collected for at least 24 months. The approved SAP is available on the BOEM site: https://www.boem.gov/Bay-State-MA-Wind-Offshore-WindFarm-Project/. In addition to the geophysical campaign for SAP submission, BSW conducted a reconnaissance level geophysical and geotechnical campaign to develop a detailed ground model across the Lease area in 2016. A further geophysical survey campaign commenced in September 2017 and will be followed by further geotechnical surveys in 2018 in order to further inform the detailed engineering. The export cable route is currently envisioned to cross Federal, Massachusetts, and Rhode Island waters before landing at the onshore substation site in Somerset Massachusetts. The Lease provides for a Project easement, which will grant the rights for the location and operation of the cables to the boundary of federal and state waters. BSW conducted a reconnaissance level geophysical survey of the proposed cable route corridor in 2017. The Project will apply for additional permits from the state waters boundary at 3 nautical miles to Mean High Water. (b) (4) 4.2. Project Components As the Project is in a preliminary design phase, specific technologies are still being evaluated and will be refined as more data and information is collated and analyzed for the preparation of the COP. The Project design can be broken down into several key components: foundations, WTGs, array and export cables, and offshore and onshore substations. 4.2.1. Foundations The Project is evaluating several foundation options, including the use of piled jackets, suction bucket jackets, and monopiles, all of which could potentially be used. The DOI-17-0494-E-000006 foundation package selected will depend on the water depth , WTG size, and the results of detailed geophysical an d geotec hnical investigations and environmental assessments. 4.2.2. WTG s Orsted is in discussion with WTG manufacturers who can As discussed in Section 3, th e individual wind turbin e size and total number of WTGs will be detennin ed as more data and info1mation is collated and an alyzed prior to the commencement of the constrnctio n of the Project. 4.2.3. Electrical System Inter-aiTay cables will connect the WTGs to the offshore substation. The WTGs ai?e aiTanged in "strings" with a numb er of WT Gs on one cable (which is buried), based on th e power capacity of the platfo1m connecting the cables and the WTG rating . The export cable system is buried an d connects the offshore substation to the onshore substation, delivering high voltage power to Brayton Point for the ISO-NE electric grid. The offshore substation will be located within th e Lease ai?ea and will serve to conve1i and package energy for transfer from the WTGs to the onshore substation . The onshore substation will be located on a site near the export cable landing point. 4.3. Environmental , Cultural , and Historic Resources Since receiving the Lease in June 2015 , BSW has been actively planning , evaluating an d character izing th e Project and assess ing potential impacts through desktop assessments, field surveys, Agency consultation, and extensive stakeholder outreach . BSW is work ing with federa l an d state agencies, tribal governments, and other stakeho lders to appropr iately assess environmental resources, address issues of concern, avoid and Initigate pote ntial effects , and obta in the necessaiy pennit s and approva ls to supp o1i the constrnction and operation of the Project. The following subsectio ns prov ide a pre li1ninaiy chai?acterization of environm ental, cultur al, historical, an d ai?chaeological resources at the Project location based on existing data as well as the field surveys conducted to date for the Proj ect. Survey protoco ls for baseline character ization of the resources have been agreed with relevant federal and state agencies through inter-agency meetings and discussions. 5 DOI-17-0494-E-000007 4.3.1. Environmental Resources The Project location hosts a number of important ecological resources that need to be assessed, including fish, bird, mammal, and reptile species. Fish Finfish within the Project location can be categorized in two groups based on vertical habitat use: demersal and pelagic. Demersal fishes tend to occur near the substrate and feed on benthic organisms supplemented by organic material that drifts down to the substrate through overlying waters. Pelagic fishes tend to occur in the water column rather than associated with the bottom. There are four Endangered Species Act ("ESA") listed fish species with the potential to occur in the Project location: Atlantic salmon (Distinct Population Segment (Salmo salar), shortnose sturgeon (Acipenser brevirostrum), Atlantic sturgeon (Acipenser oxyrhynchus), and New York Bight (A. oxyrinchus). The waters off the coast of southern Massachusetts support a diversity of shellfish/invertebrate species with varying affinities to benthic substrate types. The finegrained to medium- and coarse-grained sand in the Project location provides habitat for numerous shellfish and invertebrate species. Additionally, benthic and water column habitats within the Project location include essential fish habitat for several federallymanaged fish species. As a biological resource, fisheries provide the basis for an important socioeconomic resource in the area. Avian A large number of bird species occur in or potentially fly over the Lease location. Massachusetts Clean Energy Center in conjunction with BOEM funded three years of aerial surveys of the Lease area and nearby waters to assist developers characterize the Project site. The only species observed that currently is protected under provisions of the ESA was the roseate tern (Sterna dougallii), although a total of three species of birds that may occur in the Lease area are listed under the ESA as endangered or threatened. The northwestern Atlantic Ocean population of roseate tern is listed as endangered; and the Atlantic Coast population of the Piping Plover (Charadrius melodus) and rufa subspecies of red knot (Calidris canutus rufa) are listed as threatened. In 2017 BSW conducted additional boat-based avian surveys to support existing data for roseate terns. In addition to seabirds, migratory land birds and shorebirds may fly over the Lease area during the spring and fall migration. On the coast, there are several identified colonial bird nesting sites in the vicinity of the export cable corridor and at the landing location at Brayton Point. Finally, seven species of bats are known to occur in southeastern Massachusetts and have been documented on Martha's Vineyard, although little is known about the far offshore presence of these species. Marine Mammals and Sea Turtles BSW has used the extensive repository of existing regional marine mammal and sea turtle survey data to establish baseline conditions of the resource across the Project location in support of its survey protocol for baseline characterization. The marine 6 DOI-17-0494-E-000008 mammal (cetaceans and pinnipeds) and sea turtle species known to occur within the Northwest Atlantic OCS region, which includes the Project location, include 38 marine mammals and five sea turtles. All 38 marine mammal species are protected by the Marine Mammal Protection Act, some are additionally protected by the ESA. All of the identified sea turtle species are protected by the ESA. The relative occurrence of these species varies seasonally, with OCS habitats providing for a variety of important life functions, including feeding, breeding nursery grounds, socializing, and migration.2 Six endangered species of whale occur within the waters of the north Atlantic OCS, five mysticetes and one odontocete - North Atlantic right whales, blue whales (Balaenoptera musculus), humpback whales (Megaptera novaeangliae), fin whales (Balaenoptera physalus), sei whales (Balaenoptera borealis), and the sperm whale (Physeter macrocephalus) - although blue whales are not likely to occur in the vicinity of the Project. 4.3.2. Cultural and Historic Resources and Visual Impacts The majority of southern Massachusetts and Rhode Island coastlines as well as Islands of Martha's Vineyard, Nantucket, and Block Island are highly developed and are popular tourist destinations; these areas support high levels of commercial, military, and recreational vessel traffic. To support the identification of potential viewing and scenic areas that could be affected by the Project, a 25-mile study area was applied around the site, which encompasses the entirety of Martha's Vineyard, the western half of Nantucket, and a small portion of the southern coast of Massachusetts near Cape Cod. The resources within these areas that will have potential views of the Project include a mix of public, private, and residential beaches, natural areas, and publicly accessible walking and biking paths on the southern coast of Martha's Vineyard and Nantucket. Specifically, the 25-mile study area encompasses two state parks on Martha's Vineyard (Long Point Wildlife Refuge Beach and South Beach State Park), four state parks on Nantucket, eight light houses, and the Miacomet Golf Course. The only federal lands identified within the study area is Nomans Land Island National Wildlife Refuge, located approximately 3 miles southwest of Martha's Vineyard. However, due to the potential safety risks associated with unexploded ordnance and the value of this island as a relatively natural island habitat, the refuge is closed to all public uses; therefore, this is not a potential concern for visual impacts. The Project is conducting a visual impact assessment and simulation from viewpoints agreed with stakeholders as part of the COP. The landscape setting in the vicinity of Brayton Point is comprised of residential, commercial, and industrial development. 4.3.3. Archaeological Resources The Project appointed a qualified marine archaeologist to conduct a preliminary desktop examination of the Lease area's physiography and geologic development in order to assess the potential occurrence of paleo environments of archaeological significance prior to SAP and reconnaissance level geophysical and geotechnical surveys to ensure there is no impact on cultural and archaeological resources. Some of the relic landforms may not have been conducive to supporting human occupation (e.g., sub-glacial tunnels); however, channel levees may have potential for the preservation of evidence of human 7 DOI-17-0494-E-000009 activities. These will be further examined as part of S106 requirements under the National Historic Preservation Act. There are no National Register of Historic Places ("NRHP") listed submerged archaeological sites or shipwrecks within the Lease area. Principal data sources have identified shipwrecks and obstructions located within or in the vicinity of the export cable corridor in federal and state waters. There are no NRHPlisted submerged archaeological sites or shipwrecks within the export cable corridor. 4.3.4. Shipping and Navigation In general, the waters off southern New England experience high levels vessel traffic. The Lease area is to the north of the Nantucket-Ambrose Traffic Separation Scheme and to the southeast of the Narragansett Bay and Buzzards Bay Traffic Separation Schemes. Although there is some commercial traffic passing through the Lease area, the heaviest trafficked routes into and out of southern New England waters are to the west and outside of the area proposed for the first phase of development. Similarly, vessel trip report data illustrates that the areas with the highest levels of recreational fishing activity are to the west of the Lease area. BSW is conducting a navigational risk assessment as part of its COP submission and has discussed and agreed its approach with US Coast Guard. 4.3.5. Stakeholder Engagement and Communications The Project has developed and is implementing a detailed stakeholder engagement matrix and communications plan including the organization of a series of four open house meetings to be held in late November 2017. BSW puts great emphasis on stakeholder engagement throughout all phases of the Project life cycle and commenced stakeholder outreach at the start of the Project with a number of key parties and interest groups including federal and state agencies, tribal nations, commercial fisheries, and environmental NGOs. The Project has held several pre-survey meetings with tribal nations in Massachusetts and Rhode Island per BOEM regulations. The Project has held additional workshops and meetings with the tribes to present the results of geotechnical and geophysical surveys and archaeological and cultural assessments across the Lease area. In February 2017 BSW conducted a successful inter-agency meeting to outline its approach to the baseline characterization work required for the COP. Over forty representatives from state and federal agencies attended and subsequent meetings have been held with BOEM and relevant agencies to discuss and agree survey protocols. The Project has developed a Commercial Fisheries Communication Plan in accordance with BOEM Guidelines, which includes the appointment of a dedicated fisheries liaison officer who provides a critical link to the fishing industry. Significant outreach has been undertaken with fisheries interests at a project level as well as contributing to industrywide discussion through state initiatives such as fisheries working groups in Rhode Island and Massachusetts. 8 DOI-17-0494-E-000010 5. Technical and Financial Abilities of Project Sponsor As a 50/50 joint venture between Orsted NA and ESI, BSW benefits from the extensive experience that affiliates of these partners have gained in developing, constructing, and operating complex energy projects. This complementary partnership brings world-leading offshore wind expertise and expert knowledge of transmission together. 5.1. Technical Viability 5.1.1. Orsted Orsted has industry leading experience and exposure to the rigors and challenges of the offshore wind business. Headquartered in Denmark, the companies' existing business activities span Denmark, the United Kingdom, Germany, the Netherlands, the United States, and Taiwan, as depicted in Figure 2 below. As a result, Orsted is well practiced in adapting to, and thriving within, new regulatory, consenting, and political landscapes. Its affiliates have constructed 3.8 GW of offshore wind capacity as of November 2017, delivering approximately one-third of all global capacity installed, encompassing some of the largest and most technologically advanced offshore wind farms in the world. Collectively, there are 22 offshore wind farms in operation and seven under construction. Technical design and constructability is retained in-house and is based on almost three decades of experience of engineering, procuring, and constructing offshore wind farms and complex onshore transmission lines. This in-house experience and technical knowhow is what sets the Project apart from all other offshore wind developers. All of Orsted's and its affiliates' experience in offshore wind development, construction, operation, and decommissioning is relevant to the Project. Specific examples of expertise in development and operations of offshore wind energy projects include: ? ? ? ? Permitting of complex projects with input and consent required from numerous stakeholders including regulatory agencies, NGOs, and the fishing industry; Design and planning of high-voltage transmission solutions capable of delivering power from offshore wind projects to the identified onshore grid connection point, from as far away as 55 miles; Design and construction of offshore wind farms in challenging marine environments, including far from shore projects, high wave heights, high wind speeds and rough sea conditions; and Planning and execution of operations and maintenance strategy for offshore wind farms. Through combining the lessons learned and experience gained from the development, construction, and operation of a number of offshore projects in Europe, Orsted will be capable of designing and implementing technical solutions that are appropriate and proven. 9 DOI-17-0494-E-000011 Figure 2: Orsted Global Offshore Wind Experience - USA Boy State Wind = J... Boston office ficeanWind Coastal Virgin! - Europe - Asia Pacific Taipei office Jl_Formosa 1.1 ;(:' Formoso 1.2 Greater Changhuo project Anholt A Middelgrunden West of Duddon Sands Walney Extension Horns Rev 1 & 2 Westermost Rough I _J Hornseo l ,A.. 1 Hornsea 2 JJ.t!ornseo 3 4 Race Bonk J... A J... J... .,le- ved0re A Vindeby J... Nysted CodeWlnd2 4ode Wind 3& 4 GodeWindl ~ Borkum Riffgrund 1 Borkum Riffgrund 2 NOrdUcherGrund Borkum Riffgrund West 2 OWPWest )__ lnoperation Under construction J...Under development J...Decommissioned after 25 yeors 5.1.2. Eversource Eversource is an industry leader in timely and efficiently siting, permitting, constructing, and maintaining large complex transmission projects including high-voltage and extra high voltage overhead, underground and hybrid transmission lines, and associated terminal equipment. Eversource, a Fortune 500 energy company, has significant financial resources and invests substantially in transmission facilities. Eversource financed those investments with its strong cash flows, including appropriately accessing the capital market for borrowings. Eversource's affiliates have successfully completed hundreds of capital projects over the past decade with a proven track record in: ? ? ? Successful single state and multi-state project siting and permitting; Working closely with other companies to develop major projects; and Safely and efficiently constructing transmission projects. During the construction of these projects, Eversource and its affiliates have implemented a number of innovative solutions to address technical and environmental challenges, including: 10 DOI-17-0494-E-000012 o o o The first and m ost extensive 345 kV appli cat ions of solid core cro ss linked polyethylene under ground cables in the United State s; Laying marine cable from a purp ose-built ship ; and Constructing overh ead tr?ansmi ssion supp o1i str11ctur es from the air, using helicopters . For the purp oses of deve lopin g the Proje ct, E SI has repli cated Eversource 's success ful formul a by ass emblin g a core team of seasoned profe ssionals who have been invo lved in the developmen t and construction of num erou s large tr?ansmi ssion facilities, supplem ented by int ern al and extern al resour ces that provide the expertise to supp o1i proj ect execution. 5.2. Financial Viability BSW 's finan cial capability to constr11ct and operat e the Projec t is bas ed on several factors, includin g the finan cial str?ength of its owner s, Orst ed and Eversour ce, as well as their combined experi ence in finan cing, constructing, and operatin g offshore wind globally and elecu-ic disu-ibution and tr?ansmi ssion facilities in N ew England . BSW 's owners brin g unri valed finan cial capacity to the Proj ect. Its ultimate parent compani es are stable and diverse energy companie s, with str?ong bal ance shee ts indicative of the finan cial su-ength needed to complet e and operat e the Projec t, as demonstr?ated by the owner s' credit rat ings in Figure 3 below : Figure 3: Orsted and Eversource Credit Ratings Sponsor S&P Moody's Fitch Orsted BBB+ (stable) Baal (stable) BBB+ (stable) Eversource A- (posit ive) Baal (stable) BBB+ (posit ive) While both paren t companie s possess ext ensive experi ence access ing the capital market , neither are dep endent on the capital marke t to fund their investments. In 2016, the combin ed total assets of the parent compani es exceed ed $50 billi on and cas h flow from operatin g activities was nearl y $4 billi on, driven largely by regulated ass ets and long-te1m elecu-icity suppl y conn-acts. There fore, the owners can fund their capit al contr?ibuti ons to the Proj ect with their parent comp anie s' su-ong combined cash flows or alternatively by opp o1iunistically accessing the capit al marke t. Thi s finan cial resilien ce will insul ate the developm ent , construction, and operat ion of the Proje ct from the inevitable up s-and-d owns of the business cycle. 6. Anticipated Financing , Environmental Reviews , and Authorizations BSW has reviewed fed eral , state , and local pe1mitting requirement s to identi fy the appli cable regul ato1y fram ewo rk for the construction and operati on of the Proj ect. Orsted and Everso urce can rely on extensive experien ce in pe1mittin g proj ects of similar comple xity and have ak eady unde1i aken signifi cant effo1i in advancing the penni ttin g pro cess, as detailed in Section 6.2 below. Fmi her, ther e is no federal finan cing assoc iated with the Proje ct. 11 DOI-17-0494-E-000013 6.1. Federal Financing There is no federal financing required for the proposed Project. The Project will be constructed on the balance sheets of Orsted and Eversource as explained in Section 5.2 above. 6.2. Environmental Reviews and Authorizations Since receiving the Lease in June 2015, BSW has been actively evaluating and characterizing the Project and assessing potential impacts through desktop assessments, field surveys, agency consultation, and stakeholder outreach. The Project is working with federal and state agencies, tribal nations, and other stakeholders to appropriately assess environmental resources of concern, avoid and mitigate potential effects, and obtain the necessary permits and approvals to support the construction and operation of the Project. Environmental reviews, permits, and authorizations will be required from a number of federal permitting agencies including the Bureau of Ocean Energy Management, U.S. Army Corp of Engineers, Environmental Protection Agency, National Ocean and Atmospheric Administration, and U.S. Fish and Wildlife Service. Through their affiliates, Orsted and Eversource have extensive experience in permitting projects of similar complexity and have already undertaken a significant effort in advancing the permitting process at this stage in the Project. A complete list of required environmental reviews, permits, and authorizations on the federal, state, and local levels can be found in Attachment 1. The Project benefits from the experience on which Orsted and Eversource can rely in incorporating innovative minimization and mitigation measures to reduce potential impacts to the extent practicable. A summary of the Project's preliminary environmental assessment, including proposed approaches to avoid and minimize potential effects during construction and operation of the Project, is provided in Attachment 2, as well as preliminary identification of measures to avoid, minimize, or mitigate such impacts. While potential mitigation measures are identified below, appropriate measures will be identified during the permitting and outreach process in collaboration with federal and state agencies and other stakeholders. The details summarized in Attachment 2 are preliminary because the Project has not yet completed its environmental assessment. The final identification of adequate and appropriate mitigation measures will be addressed when detailed knowledge about the site is obtained. The Project is currently undertaking further site characterization in the form of survey activities and desktop studies that will enable the final environmental assessment of potential impacts and the identification of appropriate, adequate, and site-specific mitigation measures for the Project. 7. Eligibility as a Covered Project The Bay State Wind Project is a Covered Project per 42 U.S.C. ?4370m(6). Specifically, the Project: i. ii. is subject to NEPA, will require a total investment far in excess of $200 million, 12 DOI-17-0494-E-000014 iii. iv. v. does not qualify for abbreviated authorization or environmental review processes under any applicable law, is likely to benefit from enhanced oversight and coordination because the Project will require authorization from several federal agencies, and will require an Environmental Impact Statement. It is noted above that BSW anticipates filing its COP in late 2018. Under guidance jointly issued by the Office of Management and Budget and the Council on Environmental Quality for agency implementation of FAST-41, it is explicitly contemplated that "[f]or many projects, the Initiation Notice is likely to be submitted, and the FAST-41 process may begin, before a completed application is filed."5 The guidance document identifies alternative procedures for agencies to pursue in developing a Comprehensive Permitting Plan ("CPP") where, as with the Project, the FIN is not submitted concurrent with the application for the COP. BSW, as the Project Sponsor, acknowledges that the initial CPP will necessarily be preliminary and indicative in nature, and keyed to the date the COP is filed. Further, BSW acknowledges that more specific dates for relevant permitting milestones would not be expected until the application is complete. 5 Office of Management and Budget and Council on Environmental Quality. Guidance to Federal Agencies Regarding the Environmental Review and Authorization Process for Infrastructure Projects. M-17-14, 4.28 (2017). https://www.permits.performance.gov/sites/permits.performance.gov/files/docs/Official%20Signed%20FAST41%20Guidance%20M-17-14%202017-01-13.pdf 13 DOI-17-0494-E-000015 1 DOI-17-0494-E-000016 2 DOI-17-0494-E-000017 3 DOI-17-0494-E-000018 4 DOI-17-0494-E-000019 5 DOI-17-0494-E-000020 6 DOI-17-0494-E-000021 1 DOI-17-0494-E-000022 2 DOI-17-0494-E-000023 3 DOI-17-0494-E-000024 4 DOI-17-0494-E-000025 5 DOI-17-0494-E-000026 6 DOI-17-0494-E-000027 7 DOI-17-0494-E-000028 8 DOI-17-0494-E-000029 9 DOI-17-0494-E-000030 10 DOI-17-0494-E-000031 11 DOI-17-0494-E-000032 12 DOI-17-0494-E-000033 13 DOI-17-0494-E-000034 14 DOI-17-0494-E-000035 15 DOI-17-0494-E-000036 16 DOI-17-0494-E-000037 References Beavertail Lighthouse Museum. 2016. Rhode Island Shipwrecks. Electronic database. www.beavertaillight.org/wrecks. 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