Saturday, December
21, 2007
S E “Lou”
Woltering
Forest Supervisor
1101 New York Ave
Alamogordo, NM 88310-6992
Dear Mr. Woltering,
The Sacramento
Mountains Watershed Restoration Corporation (SMWRC) as a protestant against the re-issuance of a special use permit (SUP)
to the City of Alamogordo (Alamo) for water transmission pipelines and spring and creek diversions in Fresnal, La Luz and
Maruche Canyons (Watershed) hereby submits its comments on the letter dated November 20th, 2007 addressed to “Interested
Parties” and referenced as file code: 1950/2700 (the Letter).
The legal status
of “the Letter” is not clear. While the court that ordered the Environmental Analysis (EA) in question be performed
and stipulated that SMWRC was to be kept informed of progress, and that a letter summarizing the EA be released and a comment
period provided to satisfy that stipulation, there is no suggestion in the decision that the Court’s intent was to supercede
the CFR requirements of the EA process. Thus SMWRC wishes to point out that the United States Forest Service (USFS; FS) has
not followed the procedures required for an environmental assessment that are mandated by the CFR, beginning with an adequate
assessment of biological and other concerns, and ending with procedural aspects of announcing a public comment period. Details
follow.
Departures from
36 CFR 215:
The purpose of an EA is according to 36 CFR 215 (CFR) part .3 “Environmental Assessment (EA)—A concise public document
that provides sufficient evidence and analysis for determining whether to prepare an environmental impact statement (EIS)
or a finding of no significant impact, aids an agency’s compliance with the National Environmental Policy Act NEPA)
when no EIS is necessary, and facilitates preparation of a statement when one is necessary”. An EA was required in this
case prior to a Proposed Action, i.e. to renew Alamogordo’s permits to operate and maintain diversions and pipeline
on FS (and thus on adjoining private) lands.
The FS has admitted that
the Biological Assessment (BA) and the final draft EA are incomplete (Letter: “the Forest Service is preparing”).
Therefore it is inappropriate to publish a synopsis of the EA and invite comments on an analysis that is incomplete and so
could be altered, and on a Proposed Action which likewise could be changed. Yet “the Letter” announces a comment
period that ends in 30 days, with no further opportunity for comment to be allowed. Nor is any intent to release the final
EA and accept comments on it acknowledged.
A further departure
from the CFR is that 215.5 requires that the DATE by which comments must be received must be published. The FS failed to announce a date in “the Letter” (dated Nov 20th, but delivered Nov. 23rd
locally) but instead stated “30 days following the publication of a legal notice in the Alamogordo daily News (ADN)”.
Further: “This publication date is the exclusive means for calculating the time to submit comments … Those wishing
to comment should not rely on dates … provided by any other source”. Thus it was necessary for SMWRC to do a physical
search of past issues of the ADN, which delayed discovery of the actual date of publication (24th Nov.) until 29th
November. Thus 5 days of response time was lost. This is important because only a limited number of individuals received “the
Letter” and so SMWRC and others must take additional time to notify other interested parties who may wish to comment;
as a result the latter have even less time to prepare comments. We know for a fact that there are others who did not receive
“the Letter” who wish to comment.
According to “the Letter” the USFS is proposing to re-issue
a 25-year SUP. Comments are requested, but “the Letter” is ambiguous
as to what the comments are to address, given the documents are incomplete. It is ludicrous and a violation of due process
to request final comments on unfinalized documents. Comments by SMWRC on “the Letter” are not to be construed
as acceptance of the letter in lieu of the final Draft EA.
Given these circumstances, and other considerations to be mentioned,
SMWRC formally requests an opportunity to comment upon a legal notice of release of a clearly identified FINAL DRAFT EA and
Proposed Action. SMWRC requests that a copy of these documents, when available, be promptly delivered to its address. SMWRC also requests that a period of 60 days minimum be given in which to respond,
as the issues involved are extensive.
Environmental
issues:
The expansion of
Alamo’s pipeline and diversions approximately 10 years ago has had a devastating and continuing effect on the hydrology,
geology, ecology and human welfare of the Watershed. It should be noted that
the original SUPs were issued without any proper NEPA analysis being performed (only a few categorical exclusions). Furthermore, the USFS and Alamogordo did not, as stipulated under the original SUPs,
carry out agreed-upon monitoring and remediation measures designed to maintain the wetlands, creeks, ecology and affected
private property, according to law. These measures are exemplified by the Springer
Springs and Maruche Springs SUPs, but were also, in modified form, a part of other SUPS affecting other wetlands and streams
in the watershed.
Under purpose and
need for the re-issuance of the SUPs, the Letter states that is will ensure that clean, potable water can continue to be delivered
to the City’s municipal water system. This is a misrepresentation. The water captured either by Alamogordo’s (Alamo’s)
pipeline or at the base of the mountain (as was done for over 70 years) is not potable until after treatment. This is evidenced by the fact that the City is prohibited from selling household water from the pipeline
until after it has been treated.
Alamo’s collection
of water through the pipeline has declined steadily since the implementation of the system.
From 5,000 acre feet of water per year collected at the bottom of the watershed before the diversions were completed,
to the 2,000 acre feet now collected, the deterioration has been consistently downward.
Allowing this deterioration to continue for another 25 years without any remediation is unthinkable. Requiring Alamo to begin some or all of its water collection at its historical collection point at the
base of the mountain is expected to reverse the downward trend of water collection as explained in our response during the
Scoping period (attached). The resulting permanent in-stream water flows will help ensure the return of the watershed to its
prior health, thus guaranteeing Alamo a much larger supply of “potable” water. In addition, restoration of stream
flows will be a first step towards remediation of the adverse ecological and other effects on the watershed we have previously
documented; see attachment “B”.
Under “Public
Involvement” “the Letter” states “An Interdisciplinary Team (IDT) consisting of archeology, engineering,
lands, recreation, range, hydrology, wildlife, and soils specialists was assembled to review the application and identify
potential internal issues and concerns… Review and analysis of the responses to scoping did not result in any significant
issues being identified therefore there was no need to develop additional alternatives to the proposed action.” One
wonders if the IDT was permitted to see SMWRC’s comments in context. This
cavalier dismissal of our concerns, which we expressed and documented in great detail in our 2005 response to the scoping
letter (Attachment “A”) shows the incompetent and deficient manner in which this EA was conducted. Furthermore, the determination that “there was no need to develop additional alternatives to the
proposed action” is particularly egregious in light of the many alternative measures recommended by the SMWRC in its
2005 response (see attachment “A”). Is the USFS shirking its responsibilities
under its own regulations?
It appears that the USFS in trying to limit the scope of the environmental
analysis to exclude the consideration of any changes since operations began in
1997. SMWRC contends that the environmental analysis ought to consider the entire
project as it is operated now and the extreme damage that has occurred and that is continuing to occur. SMWRC’s position is that the USFS has allowed extensive damage to the wetlands in the area of concern
as a result of its previous SUPS (which we extensively documented in our 2006 comments) AND THAT THE PROPOSED PERMIT WOULD
ALLOW THIS DEVASTATION TO CONTINUE AND INCREASE, rather than mitigate it, as was our purpose in requesting an EA for the new
permit. Therefore SMWRC’s view is that the EA and Proposed Plan are incomplete,
and should include substantial mitigation provisions. See Attachment “B”
for more detailed discussion of certain environmental issues and Attachment “A” for an overview of the recommendations
earlier submitted by SMWRC.
Public Welfare:
Since 1996 there have been numerous reports of wells and springs
drying up, in many cases creating great hardship to families in the watershed. In addition, properties have been devalued
as a result of loss of creek amenities, or the perception of a failing watershed. These problems are attributed chiefly to
diversion of flowing streams, so preventing aquifer recharge.
The Otero County Assessor has determined that the disappearance
of the perennial nature of the creeks has caused loss in property values in the subject canyons. This damage to private property as a result of the prior SUP is in violation of the USFS regulations.
Additionally, there is a general loss of quality of life as a result
of environmental degradation and ecosystem loss. The USFS has refused to consider
these issues, although their regulations require it.
General:
It is quite impossible
to imagine the contingencies that may arise during the proposed 25-year permit for Alamogordo. Because of that and past permit
violations a 25-year SUP is irresponsibly long. We request 5 years as a maximum.
“The Letter” and the August ’07 Draft Biological
Assessment show that there is no significant concern about future watershed damage when Alamo needs to make repairs or conduct
maintenance. This obviously brings the thoroughness and regard for law of the USFS personnel and management directly into
question. We feel strongly that an investigation into past practices of the USFS
regarding the contents of past SUPs will produce an abundance of evidence that
the USFS has violated its fiduciary responsibilities and its own regulations many times over.
That damage has already been done is unquestionable. Just because watershed deterioration has already been initiated
under previous SUPS does not mean that the EA for a new SUP can ignore past and continuing damage when it has been made public.
Under “Effects of the Proposed Action” “the Letter”
ignores the damage done since 1997 to the environment and private property. Any
mention of prior environmental damages are completely absent from the findings, thus suggesting that the extensive past damage
is irrelevant to the current EA, even though it permits that damage to continue. SMWRC
could not disagree more. The USFS has a responsibility to remediate damage in which it has had a hand. Any mitigation procedures discussed in “the Letter” are totally inadequate with respect to
past damage and future risks and imply a total lack of concern for the land that the USFS is under a fiduciary responsibility
to care for. Therefore, we intend to hold all supervisory personnel personally
liable in any future action we might take.
Chief Conclusions:
The SMWRC strongly disagrees with the proposed re-issuance of
the SUP in its current form and wishes to point out the careless and incompetent manner in which the USFS has conducted this
study, especially in light of the fact that the original SUPs were issued without any environmental analysis.
No SUP should be issued for more than 5 years (if at all) and
should include exacting monitoring and mitigation procedures with follow up. It
is impossible to anticipate all possible future contingencies.
That the USFS would not entertain any “alternatives to
the proposed action” is deplorable and indicates a total lack of concern for the public welfare and a gross misinterpretation
of its legal mandate to protect the forest and its riparian ecosystems.
Protection for the endangered Sacramento Prickly Poppy in Fresnal
Canyon is insufficient as was pointed out above. The area in which the Prickly
Poppy grows in concentration adjacent to and over the pipeline should at the least be totally closed to all vehicular traffic. Should service to the pipeline be required in that area then the pipeline should be
abandoned and the water restored to its original channels.
According to “the Letter”, all responses to the fall
of 2005 scoping letter resulted in no significant issues being identified, but no explanation has been provided as to why
responses were so determined. It essential to our being able to properly respond
to “the Letter” and the EA that we be given access to the rationale for these findings.
The goal of the USFS is to protect public welfare and has a fiduciary
responsibility to protect and care for the land under its control. We conclude
the USFS has failed in these matters and should reassess its actions and their consequences.
SMWRC requests a 60-day comment period after the FINAL draft
EA and Proposed Plan have been made public and a copy sent to SMWRC and others.
Sincerely,
Richard F Warnock,
President
