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John Redmond Dam and Reservoir

Built by the US Army Corps of Engineers after the Great Flood of 1951 inundated parts of downtown Burlington and Strawn with as much as 30 feet of water, the John Redmond Dam and Reservoir in eastern Kansas was completed in 1964 to provide flood control, water conservation, recreation, and water supply.

After a severe drought hit the region in 2012 and 2013 and lake levels dropped alarmingly low, however, it became clear that 50 years of sediment build up was beginning to to seriously impact the dam’s operations – according to the Kansas Water Office, sediment was accumulating 80% faster than anticipated. In total, the lake had lost nearly 40% of its storage capacity due to sedimentation.

In order to meet local water supply requirements, the Corps of Engineers began examining the feasibility of a dredging and restoration project under the National Environmental Policy Act (NEPA).

At its most basic level, NEPA requires federal agencies to carry out a review process designed to identify any major environmental, socio-economic, or public health impacts a federal project may have before construction can begin. It also required the Corps of Engineers to conduct public outreach to communities that stood to be impacted by the project as well as consult with the Kansas Water Office and other relevant state agencies.

When completing the (EIS), the Corps discovered that the agency’s proposed action – raising the conservation pool – would have the indirect result of flooding hundreds of acres of nearby wildlife refuge areas, posing a risk to both protected wildlife and deer and turkey hunting, and destroy one of the only local boat ramps to the lake.

Using the NEPA process, the Corps was able to work with the state to replace both the ramp and wildlife areas and minimize environmental impacts, while still successfully dredging more than 3 million cubic feet of sediment from the reservoir.

That sediment was in turn placed in five containment ponds on nearby land, two on federally owned land and three on land owned by local farmers – the environmental impact study had already determined that the environmental impacts of the five containment ponds would be negligible and would not contain concentrated levels of ant contaminants.

Completed in 2016, the dredging project is the first of a multi-phase project that the Corps plans to carry out in the next decade. Unfortunately, additional work reducing sediment in the watershed above John Redmond will be necessary to ensure future water supply demand is met through the year 2045 in the Neosho River basin.

John Redmond continues to serve as the municipal water source for 19 downstream municipalities and six industrial users, including Wolf Creek Nuclear Power Plant.

[1] “Characterization and Mapping of Sediment Thickness and Pattern in John Redmond Reservoir, Coffey County, Kansas.” Kansas Biological Survey. December 2014. Available at:
[2] “2013 Final Supplement to the Final Environmental Impact Statement: John Redmond Dam and Reservoir Dredging Initiative.” S. Army Corps of Engineers. February 2013. Available at: https://kwo.ks.gov/docs/default-source/project-pages/rpt_final_sfes_final_reallocation_johnredmond.pdf?sfvrsn=c0c98614_6
[3] “John Redmond Reservoir Dredging Project.” Presentation by Matt Unruh and Bryan Taylor, Kansas Water Office and U.S. Army Corps of Engineers. Available at: https://kwo.ks.gov/docs/default-source/2016-governor’s-water-conference-presentations/taylor-ekren-unruh_john-redmond-reservoir-dredging-project.pdf?sfvrsn=2
[4] “John Redmond Dredging.” Kansas Water Office. Accessed 12/9/2017. Available at: https://kwo.ks.gov/projects/john-redmond-dredging
[5] “2016 John Redmond Reservoir Dredging Project in Kansas.” Kansas Water Office. May 2, 2017. Available at: https://www.youtube.com/watch?v=hLPjHCrtPWs
[6] “John Redmond Reservoir Phase 1 dredging complete.” Kansas Farmer, November 23, 2016. Available at: https://www.farmprogress.com/story-john-redmond-reservoir-phase-1-dredging-complete-9-149743

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US-65 Southeast Connector (MLK Extension)

Map of the US-65 Southeast Connector // Credit: City of Des Moines In the early 2000s, traffic studies warned that existing roads would be unable to serve projected 2030 travel demand in the southeast Des Moines metropolitan area – without investment in the corridor, future travelers would likely have to divert to a longer and less efficient route around the city The city, in conjunction with the Federal Highway Administration and Iowa Department of Transportation, used the National Environmental Policy Act (NEPA) to solicit community input and identify a range of proposals that would accommodate the projected increases in traffic in Southeast Des Moines. The draft Environmental Impact Statement (EIS) identified a multi-lane arterial road connecting Martin Luther King Parkway with U.S. Route 65 across the Des Moines river as the least disruptive project alternative. Largely as a result of the public input process, the EIS also noted several previously-unidentified hazardous material sites in the construction areas as well as concern that the original design could have led to damage to a nearby levee. Other improvements implemented as a result of the NEPA process included improved wetlands mitigation and better efforts to engage Spanish-speaking communities affected by the project. Construction on the Southeast Connector, which consists of multiple project phases, began in 2012 and is expected to be completed in 2012-2023. [1] “Record of Decision: Southeast Connector Polk County, Iowa.” US Department of Transportation, FHWA. May 21, 2010. Available at: http://www.seconnector.com/PDFs/SEConnectorRecordofDecisionMay2010.pdf [2] “Environmental Impact Statement: Southeast Connector Polk County, Iowa.” US Department of Transportation, FHWA. January 2010. Available at:http://www.seconnector.com/PDFs/CondensedSEConnectorFEIS-January2010.pdf [3] About the Southeast Connector. City of Des Moines. Accessed February 10. 2019. Available at: http://www.seconnector.com/faq.stm [4] “Des Moines SE Connector Bridge Grand Opening.” RGD Planning and Design. December 22, 2010. Available at:https://www.youtube.com/watch?v=NFnxPVLGcME
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Relocation of Agricultural Irradiator from Pa’ina to Kunia

Schematic of Kunia’s irradiator, used to treat fruits and vegetables. The facility is located in central Oahu where it is safe from earthquakes. When Kīlauea volcano erupted in Hawaii last spring, Oahu native Darryn Ng couldn’t help but think about potential repercussions in his own neighborhood a few islands away. The volcano was closely followed by a magnitude 6.9 earthquake, one of hundreds to jolt the Hawaiian archipelago in the months to come. Darryn lives near the Honolulu International Airport in Oahu. A flat area where land meets sea, his home turf is prone to tsunami, storm surge, and earthquakes, among other natural disasters. Such environment in jeopardy changes the way Darryn lives.“People check the news everyday. Oh, five point something, that’s okay…when it’s six point something, then I think we really might have a tsunami warning. That’s what we’re all thinking of right now.” The risk-prone area made Darryn and others like him concerned when in 2005, the Nuclear Regulatory Commission (NRC)  approved plans for a fruit company to construct an irradiation site — without environmental review or local input. Paʻina Hawaii, LLC elected to build the plant, which would have used a Cobalt-60 irradiator to kill plant pests on produce, directly next to the airport and around three miles from Darryn’s home. The proposed site, just eight feet above sea level and in a tsunami evacuation zone, was susceptible to airplane strikes, earthquakes, and storm surge, as well as potential terrorist targets. These factors, combined with the dangerous radioactive materials used, posed serious and unnecessary hazards to public health and safety. Much was at stake, especially given that the area is bustling with public transport, incoming container ships, residential and commercial buildings, and recreational activity, Darryn explained. In response, a local environmental group Concerned Citizens of Honolulu, to which Darryn is member, challenged the NRC. They demanded comprehensive environmental review required by National Environmental Policy Act (NEPA), one of a number of federal laws that work to both protect the public and enable development projects to go forward without causing undue harm. This included the consideration of alternate locations and technologies that the company could use to kill fruit flies without the threat of nuclear catastrophe. Earthjustice lawyer David Henkin at the time argued that through complying with NEPA, the NRC would “realize the folly of placing up to a million curies of radioactive material at a site that is vulnerable to so many potential disasters, both natural and human-caused.” The NRC in 2010 determined that its swift approval of the irradiation site violated NEPA, moved to prepare an environmental assessment for public review, and required Pa’ina Hawaii to disclose more information about the facility to the public. Eventually, a revised assessment clearly showed that an alternative site could serve the same purpose for the company with substantially less risk to the public. The irradiation facility was constructed instead in at an agricultural research center in Kunia, an area considered safe from earthquakes, aircraft strikes, and other environmental risks. Pa’ina Hawaii was soon able to export irradiated Hawaiian produce while minimizing danger to local citizens. Eight years after the environmental review launched, Darryn says he and his family have been better off without construction of the irradiation facility. “Things would definitely have been different,” Darryn said. “Through Sand Island and Ala Moana, there’s a lot of surfing contests and canoe contests…the radiation center is not [on the shoreline] and it’s a good thing.” “The majority of us go to the beach. The ocean is part of our heritage and culture,” he said, explaining that the location of the facility would have blocked off an area well-traversed by him and his family. “We go out from a channel from Kalihi stream, and go down along the Reef Runway to go fishing,” Darryn said, referring to waterways adjacent to the proposed irradiator site. “If the site was there, we probably wouldn’t be going fishing there.” Darryn said that the close proximity of the irradiation site to both the airport and the ocean put locals on edge at back in 2005 — and would have even more so if it was there today. A sense a relieve pervaded the Oahu native when asked how he felt today about the success of the legal challenge through NEPA. “The neighborhood didn’t want it, because of the radiation. Even before [the volcano] there were a lot of earthquakes and the possibility of tsunamis. So it’s good that it’s not there, especially by the shoreline.” [1] “Final Supplement to the Environmental Assessment Related to the Proposed Pa’ina Hawaii, LLC Underwater Irradiator in Honolulu, Hawaii.” US Nuclear Regulatory Commission, Office of Federal and State Materials and Environmental Management Programs. March 2011. Available at:https://www.nrc.gov/docs/ML1103/ML110390325.pdf [2] “Irradiator helps keep patients home.” The Garden Island. May 6, 2018. Available at:https://www.thegardenisland.com/2018/05/06/hawaii-news/irradiator-helps-keep-patients-home/ [3] Under New Management, ‘Aina Le‘a Is Given Yet Another Chance by LUC.” Environmental Hawai’i. Vol 20, No 4. October 2009. Available at:http://www.environment-hawaii.org/wp-content/uploads/2015/01/October-2009.pdf
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Statewide Mine Closures and Reclamation

Like many other territories across the American West during the mid-to-late-19th century, Arizona was subject to heavy prospecting in search of gold, silver, copper and other valuable minerals and ores. Years later in the 20th century, deposits of both asbestos and uranium were also identified and mined around the Grand Canyon from the 1950s through the mid-1980s.

Unfortunately, many of these abandoned mines ended presented significant hazards to public health including loose rock falls, unsecured vertical mine shafts with high radon concentrations, and leaching of toxic metals and asbestos. Still worse, many of these Arizona mines were located in National Parks and ecologically important wilderness areas, and thus they proposed environmental damages in addition to human health and safety impacts.

In 2010, the National Parks Service (NPS) selected 139 high priority Arizona mines located in Coronado National Memorial, Grand Canyon National Park, Organ Pipe Cactus National Monument, and Saguaro National Park for permanent closure and reclamation.

During the planning phase, NPS was required to carry out an environmental review under the National Environmental Policy Act (NEPA). This review process is designed to ensure federal agencies identify and publicly disclose any potential environmental, public health, or economic impacts a proposed action may have.

Using the NEPA process, NPS solicited input from surrounding communities and tailored specific mine closure activities for each feature in the four parks. The Environmental Assessment also identified specific mitigation measures that would be taken to protect several endangered species, most notably the long-nosed bat.
[1] “Abandoned Mine Lands Closure Plan and Environmental Assessment available for public review and comment.” Grand Canyon News. February 16, 2010.
[2] “Proposal to Close Abandoned Mine Lands (AMLs) within Coronado National Memorial, Organ Pipe Cactus National Monument, Saguaro National Park, and Grand Canyon National Park.” U.S. Department of the Interior. April 12, 2010. https://www.fws.gov/southwest/es/arizona/Documents/Biol_Opin/090452_NPSMineClosure.pdf
[3] “Proposal to Close Abandoned Mine Lands Environmental Assessment.” National Park Service. https://parkplanning.nps.gov/projectHome.cfm?projectID=24740 

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Timpanogos Cave National Monument Visitor Center

Conceptual design for the new Timpanogos Cave Visitor Center // Credit: NPS In 1991, Utah’s Timpanogos Cave National Monument visitor center was destroyed in a fire, leaving staff working out of a cramped double-wide trailer located in a dangerous rock-fall zone for more than a decade. When the National Park Service (NPS) finally proposed the construction of a new visitor center in 2009, it was required to carry out an environmental review under the National Environmental Policy Act (NEPA). This review process is designed to ensure that federal agencies adequately analyze and disclose a potential project’s impacts on the environment, public health, and livelihood of surrounding communities. In the case of Utah’s Timpanogos Cave National Monument, much of that analysis was centered on predicting the size, frequency, and velocity of rockfalls in the vicinity of the proposed visitor center. Completion of the Environmental Assessment subsequently revealed that rock falls in the proposed area were far more hazardous than previously thought, leading NPS to relocate the site of the proposed visitor center a different area to maximize visitor and staff safety. Construction of the new visitor center began in 2018, 27 years following the destruction of the original visitor center and administrative offices. [1] “Public Comment Sought On Proposed New Facilities At Timpanogos Cave.” National Park Service, Department of the Interior. June 16, 2012. Available at:  https://www.nps.gov/tica/learn/news/environmental-assessment.htm [2] Timpanogos Cave National Monument Revisits Alternatives for Environmental Assessment.” National Park Service, Department of the Interior. January 31, 2012. Available at: https://www.nps.gov/tica/learn/news/2012-ea-revisit.htm [3] “Timpanogos Cave finally getting new visitor center”. The Daily Herald. August 1, 2018. Available at: https://www.heraldextra.com/news/local/north/american-fork/timpanogos-cave-finally-getting-new-visitor-center/article_0f40a189-52bc-5176-968a-8ab79a8580ed.html [4] “Timpanogos Cave National Monument Visitor Center Conceptual Design”. The University of Arizona. Drachman Institute. September 2010. Available at: http://capla.arizona.edu/project/timpanogos-cave-national-monument-visitor-center
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Taking the “Public” Out of Public Lands

It’s not enough that 90 percent of public lands are open to oil and gas exploitation. The fossil fuel industry wants more from the Trump administration. They just got it.

In the latest insult to America’s public lands, Interior Secretary Ryan Zinke recently issued a directive that guts environmental review and public scrutiny to speed oil and gas development. This effort, part of President Trump’s push to ramp up fracking and drilling across America, is intended to remove any “burdens” to the fossil fuel industry.

In the process, Trump and Zinke are taking the public out of public lands, ceding control of millions of acres to industry while keeping the title in the hands of Americans, who have less and less say over how these lands are managed.

Here’s what the latest directive will do:

Eliminate public input, environmental review and disclosure of harms from oil and gas projects before lands are leased,
Slash the time the public has to raise objections and concerns to just 10 days, reduced from 30 days,
End designation of “master leasing plans,” which aim to steer fracking and drilling away from communities, cultural artifacts, endangered species, recreational and other sensitive lands,
And discourage public land managers from taking any land off the auction block, even if those lands contain sensitive resources and wildlife habitat.

Trump and Zinke are essentially privatizing America’s public lands ― ensuring energy extraction is the top priority and letting the fossil fuel industry call the shots.

Private oil and gas companies already control more than 27 million acres of public land. They also tell the Bureau of Land Management (usually anonymously) which public lands they want put up for auction. This new directive makes clear that, under Trump, the BLM’s job is to give these wealthy private interests what they want.

An analysis by the Center for Biological Diversity shows there’s been no meaningful environmental review, disclosure of harms or public engagement regarding nearly 200,000 acres of public lands in six Western states scheduled to be auctioned off during the first half of 2018.

From Utah’s petroglyph-dotted canyons to Colorado mountain meadows to Wyoming’s sagebrush country, there appears to be no limit to the fossil fuel industry’s appetite for extraction and the Trump administration’s willingness to bend over backwards for these polluting companies.

To Trump and Zinke, this is eliminating “burdens” for industry. To the owners of America’s public lands ― all Americans and generations to come ― it’s about harming wildlife, clean air and water, natural wonders and the places they love. By nearly a 3-to-1 margin, westerners say protecting public lands and preserving access to the outdoors should be the Trump administration’s priority.

But under this latest directive, the public will be largely shut out. People will learn about a fracking pad at their favorite campsite when they see the trucks roll in.

Zinke dismisses the need to determine the environmental, economic and social impacts of fracking and drilling, saying that’s already considered in broader agency land and resource management plans.

But that’s not true.

Management plans can cover millions of acres and are completed before companies decide where they want to lease. BLM defends these plans by promising that analyses of specific areas to be leased will come later and will publicly disclose environmental harms from development. Now, that later will never come.

That means no review showing how drilling and fracking will worsen air quality, including increases in smog that leads to asthma attacks in children.

It means no information about how much fresh water will be polluted or depleted from drinking water supplies, including rivers, lakes, reservoirs and underground aquifers.

And it means no disclosure about what will happen to the polluted water created by fracking. Fracking operations often re-inject this chemical-laden water back underground, which can contaminate aquifers.

There won’t even be an analysis of possible alternatives to reduce harms from drilling or fracking.

The public will be left in the dark and silenced while their public lands continue to be plundered.

Trump and Zinke may want to brush aside these “burdens,” but the law says otherwise. This is another hasty, illegal Trump administration decision to benefit corporations, at the expense of the public, that should be overturned in court.

Randi Spivak is the public lands program director for the Center for Biological Diversity, a national, nonprofit conservation organization dedicated to the protection of endangered species and wild places.

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FERC Can’t Just Check the Climate Box

Federal law requires that the Federal Energy Regulatory Commission (FERC) take a “hard look” at a proposed energy’s project’s effect on climate change. In last week’s order approving the Calcasieu Pass liquefied natural gas (LNG) export facility in Cameron Parish, Louisiana, FERC adopted what it called a “new approach” for consideration of direct greenhouse gas emissions from LNG facilities.”

FERC’s “new approach”—applied over Commissioner Richard Glick’s dissent—falls far short of what is required under both the Natural Gas Act and the National Environmental Policy Act (NEPA). The order is unreasoned, arbitrary, and fails to include a robust public interest analysis. It reads as though FERC is trying to check the climate box and move on.

The legal history behind FERC’s consideration of greenhouse gases is complicated. But FERC’s statutory duty for reviewing LNG facilities is clear: FERC must determine both whether the project is consistent with the public interest and consider the direct and cumulative greenhouse gas effects caused by an LNG facility.

In the Calcasieu Pass order, FERC does neither.
How we got here

There is a “tangled web of regulatory processes” involved in permitting LNG facilities. FERC reviews the siting and construction of LNG terminals. It does not, however, approve the exporting (or importing) of gas via those terminals; that decision rests exclusively with the Department of Energy. This is different from interstate pipelines, where FERC determines the siting and construction of the pipeline, as well as whether gas can flow inside it.

This division of labor affects how NEPA is applied to LNG facilities. NEPA requires agencies to consider the direct, indirect, and cumulative effects caused by a proposed action, including its effects on greenhouse gas emissions (see here for an explanation of direct, indirect, and cumulative effects). The key word here is “caused.”

In the pipeline context, caselaw establishes that, at least when the end-users are known, downstream greenhouse gas emissions are an indirect effect of FERC’s action, because FERC decides whether the gas arrives at the end-user to be burned. That means that FERC must consider these effects in its pipeline NEPA analyses.

Conversely, in the LNG terminal context, caselaw establishes that downstream greenhouse emissions are not indirect effects that FERC must consider under NEPA, because FERC only approves the LNG terminal and not the exporting or importing of the gas. Since DOE is the agency that decides whether the gas is imported or exported, DOE enables its use.

For both pipelines and LNG terminals, FERC must, however, consider the direct and cumulative effects of its actions. In the LNG terminal context, this means that FERC must consider the greenhouse gases caused by the construction and operation of the LNG terminal itself, and the cumulative impacts that the construction and operation of the LNG terminal itself has when added to other past, present or likely future actions in the same region (i.e., other nearby LNG terminals). In some cases, the cumulative effects can be the “straw that breaks the camel’s back” in determining the environmental impact of a project.

Simply disclosing the pure statistics isn’t enough. FERC must also determine the “significance”—a term of art within NEPA—of these effects. This is because numbers, in and of themselves, do not answer whether something is a significant environmental impact or not. For example, if a project were to emit a lot of oxygen into the atmosphere, that presumably would be less significant than if it were to emit a small amount of methane.
How FERC failed

The lead opinion of the Calcasieu Pass order—joined by FERC Chairman Neil Chatterjee and Commissioner Bernard McNamee—asserts that the construction and operation of the Calcasieu Pass LNG facility could directly increase annual emissions of carbon dioxide equivalent (CO2e) by nearly 4 million metric tons. It then states that such a result would increase overall U.S. CO2e emissions by 0.07 percent.

Is this a significant amount? The order never says, nor does it explain what this number is even being used to support. Instead, the order simply discloses this statistic, and then backpedals with the blanket statement that “there are no national targets to use as a benchmark for comparison,” citing the Trump administration’s intention to repeal the Clean Power Plan and withdraw from the Paris Agreement. In other words, a proposed change in policy by the current administration seemingly drove FERC’s conclusion that it couldn’t assess significance.

As it is, the 0.07 percent figure reads as an aside, or what lawyers call dicta: material, that, while interesting, is not being used to decide anything.

After citing the 0.07 percent figure, the order acknowledges unequivocally that construction and operation of the LNG terminal “will contribute incrementally to climate change.” Further, FERC staff’s Environmental Impact Statement for the project makes the connection between greenhouse gas emissions and climate change, stating that climate change is “driven by accumulation of [greenhouse gases] in the atmosphere through combustion of fossil fuels … combined with agriculture and clearing of forests.” However, FERC concludes that it cannot determine whether the “project’s contribution to climate change would be significant” due to the alleged lack of an accepted methodology for doing so. This is the end of the order’s climate change inquiry. The order doesn’t even attempt to address cumulative greenhouse gas effects. While McNamee said that FERC gave the project’s climate impacts “thoughtful consideration,” it’s hard to tell from the order itself.

Here’s where things get weird: after concluding that FERC cannot assess the significance of these acknowledged greenhouse gas emissions, Chatterjee and McNamee declare that “all impacts from construction and operation of the facilities will be reduced to less than significant levels” if the terminal is built in accordance with the order. (Emphasis added.)

This makes no sense: If FERC says that it cannot determine the significance of the project’s direct greenhouse gas emissions, how can FERC know that they’ll be reduced to less than significant levels?

This inconsistency suggests one of two things. Either (1) FERC is making a major logical misstep; or (2) FERC did, in fact, determine that the project’s greenhouse gas emissions were insignificant, without explaining its method for doing so. This latter theory is strengthened by FERC’s declaration that it used a “new approach” for evaluating the project’s greenhouse gas emissions.

What was the new approach? The inclusion of the 0.07 percent figure? Because, if so, that’s a big problem for FERC, since it’s claimed in the past that because it’s “not aware of a widely accepted standard … to ascribe significance,” it would be arbitrary to pick one without some level of scientific acceptance or explanation. In fact, in the often-cited Sabal Trail case, the D.C. Circuit ordered FERC to “either quantify and consider the project’s downstream carbon emissions or explain in more detail why it cannot do so.” In response, FERC stated that it could not determine significance due to the alleged lack of an established method for doing so. If FERC is now making a significance determination based on the project’s impact on national emissions, it needs to disclose that and explain how it did so. Failing to do so is arbitrary and capricious under NEPA.
Time’s up

FERC has been waffling on how to consider a project’s climate change effects for years. As Glick wrote in his dissent, “no one benefits from the Commission’s refusal to take climate change seriously.” FERC needs to stop trying to just check a box and instead adopt a robust analysis.

 

Gillian Giannetti is an attorney with the Natural Resources Defense Council (NRDC) focusing on energy issues at the Federal Energy Regulatory Commission and the U.S. Department of Energy.

 

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Improving Infrastructure to Benefit Communities—Without Harming the Environment

Improving and upgrading U.S. roads, bridges, and transportation networks; energy production and transmission systems; and other elements of human-made infrastructure is long overdue. As the new Congress begins its bipartisan, bicameral effort to pass an infrastructure bill, it’s important that it not come at a cost to the natural resources that benefit society. Instead, policymakers should view the infrastructure package as an opportunity to protect bedrock conservation laws and reinvest in America’s natural resource infrastructure.

Parks, forests, and public lands are not only an essential part of the American landscape—they are also foundational to its economy and well-being. They clean our water and air, and they buffer against the effects of climate change by sequestering carbon and mitigating natural disasters. For these reasons, any infrastructure proposals must be managed with natural resources’ short- and long-term benefits in mind.
Below are three ways that Congress can structure the infrastructure package to benefit people and foster a healthy and resilient environment.

1. Don’t allow infrastructure legislation to undermine bedrock environmental laws
For decades, a framework for weighing the effects of growth and development on the environment and natural resources has protected communities from potential harm. Bedrock environmental laws—such as the National Environmental Policy Act (NEPA), the Clean Water Act, the Clean Air Act, and the Endangered Species Act (ESA)—require project proponents to analyze development impacts to ensure that projects proceed carefully and modify, avoid, or halt actions that could harm the air, water, or wildlife resources. In essence, this framework protects local communities and ensures that the United States invests in less harmful projects.
It is important that these bedrock laws not be circumvented or modified. Despite calls for so-called streamlining and regulatory efficiency, these environmental laws are neither costly nor time-consuming. For example, research on consultations under the ESA—which ensures that projects do not adversely threaten or endanger species of plants and animals—revealed that they do not burden development and are generally completed within weeks.

2. Support measures that advance environmentally sound infrastructure development
Bedrock environmental laws aren’t the only policies that can make infrastructure more environmentally sound. Other tools, including some that the Trump administration has rolled back, can help offset the effects of development and, in some cases, draw private investment into conservation. One such mechanism, known as mitigation, requires developers to first try to avoid damage to the environment. When damages are unavoidable, they may invest in habitat restoration to minimize or compensate for the project’s environmental effects. Originally used to stem the loss of wetlands and streams to development, mitigation projects are now major drivers of the $9.5 billion restoration economy.
Under former President Barack Obama, the U.S. Department of the Interior (DOI) detailed how mitigation can be used to manage public lands under the department’s jurisdiction to avoid, minimize, and compensate for project impacts. This gave project proponents and managers space to improve project implementation on public lands for the benefit of resource users and the environment.
Recently, however, the DOI rescinded the requirement to mitigate projects’ effects on public lands. As a result, project proponents, land managers, mitigation providers, and concerned citizens face the prospect of more uncertainty and controversy regarding project impacts on natural resources. This policy should be reinstated both to prevent conflict over projects and ensure that projects proceed in a manner that avoids, minimizes, or offsets their environmental effects.
To further efforts to mitigate damage to wildlife habitat and natural resources where development is planned, new technologies—including satellite data, geospatial mapping, and artificial intelligence—should be used to identify potential conflicts during infrastructure projects’ design phase. Project designers can use this information to site projects where conflicts are minimized or avoided. This approach has been used in the West to identify priority habitat and potential oil and gas production areas as a part of the DOI’s efforts to conserve the greater sage-grouse. This work demonstrated that energy development could proceed across much of the bird’s range without threatening the species’ existence—a valuable lesson in supporting smart development through science and technology.

3. Include funding to strengthen America’s natural infrastructure
The United States’ natural landscapes and ecosystems—including forests, rangelands, wetlands, and coastlines—represent an important part of the natural infrastructure that is as essential to the health of the nation as roads, bridges, and other human-made infrastructure projects. But they lack support relative to their value; there is a backlog of natural resource projects designed to protect endangered species habitat and improve the health and resilience of the nation’s ecosystems. Policymakers must invest in the contributions these natural assets make to communities and economies in order to ensure their future and prepare for the effects of a changing climate.
For example, the U.S. Forest Service estimates that 180 million people access their drinking water from national forests. More than 5 million of these people live in communities served by small- and medium-sized utilities that rely on surface water for their drinking water. At a time when climate-driven droughts and megafires are more common, these communities will need support to protect both homes and water supplies. And in urban areas, investments in natural infrastructure—such as parks and green spaces as well as dunes and wetlands—can help increase cities’ resilience to climate change as well as improve the health, safety, and quality of life of urban residents.
As Congress builds its package of infrastructure investments, members should focus on opportunities to benefit urban and rural communities, commerce, and the environment through sound policy and strong investments. Policymakers should also be aware that the legal and regulatory infrastructure that exists today does not interfere with improving the country’s infrastructure. To the contrary, lessons learned over the past 50 years illustrate that Americans will be better off because of these smart policies that protect communities and improve our air, water, wildlife, and natural resources.

This article was originally published by the Center for American Progress (CAP). About the author: Jim Lyons is a senior fellow at CAP.

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5G and the FCC: 10 Reasons Why You Should Care

As an environmental lawyer for over 25 years now, I have become intimately familiar with the workings of the Environmental Protection Agency and the Department of the Interior. I didn’t have occasion to watch what was happening across town at the Federal Communications Commission (FCC). Now I do. Here are ten reasons why you might want to also. 

1. Created in 1934, the FCC regulates all interstate communications—both wired and wireless—as well as international communications originating or terminating in the United States. In the words of the Telecommunications Act of 1934, the FCC was established to provide “to all the people of the United States, without discrimination . . . a rapid, efficient, Nationwide, and world-wide wire and radio communication service with adequate facilities at reasonable charges.” 47 U.S.C. § 151. The law requires the FCC to serve the public interest.

2. Wireless communication touches every aspect of life. Smart phones are used by billions of people across the globe. As volume of data increases and delay decreases, wireless service is expanding beyond person-to-person communication. The possibility of the “Internet of Things” combined with Artificial Intelligence will impact every aspect of human life including transportation, education and health care.

3. The next generation of wireless technology—5G—is dramatically different from previous versions. Telecommunication is possible through use of the electromagnetic spectrum.

4. Five Commissioners sit on the FCC. The current Chairman Ajit Pai is pursuing an aggressive deregulatory agenda. He is joined by four other Commissioners—Michael O’Reilly, Brendan Carr, Jessica Rosenworcel and Geoffrey Starks. The positions each takes on issues ranging from net neutrality to health standards will shape the development and impacts of wireless technology.

5. In December 2017, the FCC eliminated “net neutrality” rules for broadband. These rules prohibit websites from blocking or throttling traffic, or from selling off “lanes” of traffic that will advantage some content players and disadvantage others. Over 50 parties including 22 states and the District of Columbia have opposed rescission of the rules in court. The D.C. Circuit Court of Appeals held oral argument in the case on February 1, 2019.

6. In March 2018, the FCC eliminated environmental and historical review for siting certain cell towers and other wireless facilities (FCC Order 18-30). Despite the license needed to provide wireless services, the FCC determined that there was no federal role in the construction of facilities needed to provide these services. In addition to NRDC, 19 tribes have challenged the FCC’s action along with the National Association of Tribal Historic Preservation Officers and the National Trust for Historic Preservation. The D.C. Circuit Court of Appeals is scheduled to hear oral argument in the case on March 15, 2019.

7. In Order 18-30, the FCC restricted fees tribes charge Sprint and other telecom companies for reviewing the impacts on historic and cultural resources.

8. In September 2018, the FCC restricted fees cities charge Sprint and other telecom companies for siting towers and other wireless infrastructure in their communities. (FCC Order 18-133). Several lawsuits challenging the FCC’s action have been consolidated before the Ninth Circuit Court of Appeals. (Case No. 19-70146)

9. In addition to restricting fees that cities can charge for building new wireless networks, Order 18-133 limited the time allowed for review of the proposed construction. The FCC imposed a so-called “shot clock” on cities and towns. If the local government has not acted within as few as 60 days on a construction permit, the project is deemed approved.

10. While the FCC has limited the review by others, the Commission at the same time has refused to update its own health and environmental standards. The Commission’s standards date from the 1990’s. In 2012, the General Accountability Office found that the existing standards may not reflect current knowledge and recommended that the FCC formally reassess its standards. The FCC’s standards address only one aspect of potential harm from electromagnetic radiation—heat. The current standards do not address other ways in which exposure to increasing electromagnetic radiation from wireless communications can harm human health, as well as the natural systems around us on which all life depends.

The U.S. National Toxicology Program conducted rodent studies to help clarify the potential health hazards of radio frequency radiation (RFR). According to my NRDC colleague, Dr. Jennifer Sass, the results (which have been subjected to expert peer review and public comment) show that long-term high exposures to RFR used by 2G and 3G cell phones are associated with an elevated risk of cancer, particularly in heart and brain cells (NTP 2018). This is consistent with the previous hazard assessment of the World Health Organization’s cancer experts, which concluded that there was a possible link (Group 2B) to brain cancer in people with RFR exposures (IARC 2011). Both government agencies warn that the public should take pragmatic steps to reduce exposures (IARC Director, May 2011; NTP Fact Sheet, Nov 2018).

 
Sharon Bucino is the Senior Director for the Natural Resource Defense Council’s (NRDC) Public Lands Program. This article was originally published by NRDC.

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Flagship Enterprise Center

In Anderson, Indiana, the National Environmental Policy Act (NEPA) helped to facilitate proper planning the environmental impacts during construction of the $2.7 million-dollar Flagship Enterprise Center – an 80,000 square foot small-business incubator.

During the environmental review process, project sponsors became aware of impacts to neighboring forested wetlands, which are home to migratory waterfowl.

As a result, provisions were added to the project to preclude negative effects on wetland hydrology, prevent storm water runoff from being directed to the wetland, and provide retention facilities to contain storm water within the current footprint of the project site. Additionally, a 26.5-acre forested wetland southwest of the Flagship Enterprise Center (FEC) was protected.

Construction was completed in 2005, and the FEC was approved as a certified microlender in 2010 by the Small Business Association. In 2015, the FEC reached $7 million in microloans

 
[1] “The Tenth Report on the National Environmental Policy Act Status for American Recovery and Reinvestment Act of 2009 Activities and Projects.” White House Council on Environmental Quality. August 1, 2009. Available at:

[2] “Eco Industrial Business Park.” Madison County Council of Governments. Available at:
http://www.mccog.net/Eco%20Industrial%20Park%20Template.pdf

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