Coalition Submits Comments to BLM Regarding the Lava Ridge Wind Project EIS

 

April 12, 2023

Lava Ridge Wind Project EIS
BLM Shoshone Field Office
Attention: Kasey Prestwich
400 West F Street
Shoshone, ID 83352

Subject:  Lava Ridge Wind Project Draft EIS Comments

Dear Mr. Prestwich:

I am writing on behalf of the Coalition to Protect America’s National Parks, which represents over 2,400 current, former, and retired employees and volunteers of the National Park Service. Collectively, our membership represents over 45,000 years of national park management and stewardship experience. Our membership includes former National Park Service directors, deputy directors, regional directors, and park superintendents. Recognized as the Voices of Experience, the Coalition educates, speaks, and acts for the preservation and protection of the National Park System, and mission-related programs of the National Park Service.

As a national parks advocacy group, we are quite concerned that the proposed Lava Ridge Wind Project would be constructed immediately adjacent to Minidoka National Historic Site (NHS)[1] in south central Idaho. We offer the following comments about the January 2023 Draft Environmental Impact Statement (DEIS) for the project.

INTRODUCTION

As described in the Federal Register Notice,[2] Magic Valley Energy, LLC (MVE) has applied for a right-of-way (ROW) grant to construct, operate, maintain, and decommission the Lava Ridge Wind Project (LRWP or Project), a wind energy facility and ancillary facilities primarily on BLM-administered public lands in Jerome, Lincoln, and Minidoka counties, Idaho. The Project would consist of up to 400 wind turbines and associated infrastructure, including new and improved roads, powerlines for collection and transmission of electricity, substations, operation and maintenance facilities, and a battery storage facility. The Project area spans 197,474 acres and all project components would be sited within a series of corridors. These corridors are approximately one-half mile wide and cover approximately 84,385 acres, of which 75,760 acres are located on public lands managed by the BLM, 2,910 acres are on State lands managed by the Idaho Department of Lands, 5,417 acres are on private lands, and 288 acres are on lands managed by the Bureau of Reclamation. All wind turbines, powerlines, and associated infrastructure would be located on lands managed by the BLM and the Idaho Department of Lands.

However, less well described in the Federal Register Notice is the fact that the entire Project Area is located immediately adjacent to Minidoka NHS,[3] a unit of the National Park System managed by the National Park Service (NPS), and the larger 33,000-acre footprint of the Minidoka War Relocation Center (WRC), which is located primarily on public lands managed by the BLM. As a result of its proximity to these historically and culturally significant sites, the Project poses significant risk of adverse effects to historic and cultural resources in the Project area and as a result is generating significant controversy.

The extent and severity of potential adverse effects to the landscape setting of Minidoka NHS (park) and the WRC is particularly concerning. The setting provides critical context to help visitors understand the purpose of the park and the experiences of the Japanese Americans who were unjustly incarcerated there. As described in the 2016 NPS Foundation Document[4] for the site:

The purpose of Minidoka NHS is to provide opportunities for public education and interpretation of the exclusion and unjust incarceration of Nikkei—Japanese American citizens and legal residents of Japanese ancestry—in the United States during World War II. Minidoka NHS protects and collaboratively manages resources related to the Minidoka War Relocation Center in Idaho and the Bainbridge Island Japanese American Exclusion Memorial in Washington State.

Also described in the Foundation Document is that “[f]undamental resources and values are those features, systems, processes, experiences, stories, scenes, sounds, smells, or other attributes determined to merit primary consideration during planning and management processes because they are essential to achieving the purpose of the park and maintaining its significance.” (Emphasis added) Most notably, Minidoka’s environmental setting is identified as a Fundamental Resource and Value because:

Minidoka’s remote location in the high desert of Idaho provides an immersive setting that is fundamental to the visitor experience. Views of open fields and distant mountains create a sense of isolation on a vast landscape where Minidoka once stood. Extreme changes in temperature, the arid environment, and high winds that the people at Minidoka experienced are part of the environmental setting that are felt today. Experiencing this environmental setting allows visitors to better understand and connect to the daily lives at Minidoka. (Emphasis added)

Because the site “commemorates the more than 9,000 Japanese Americans who were imprisoned at the Minidoka War Relocation Center (WRC) during the Second World War,” Minidoka NHS is recognized as an International Site of Conscience.[5] However, despite the historical significance of the site, we are very concerned that BLM has proposed authorizing the development of a massive wind farm within the footprint of the WRC and immediately adjacent to Minidoka NHS. 

GENERAL COMMENTS

We have multiple concerns about the planning process and the draft environmental impact statement (DEIS). BLM has produced an enormous DEIS comprising 59 separate volumes, appendices, and supporting documents, which collectively contain over 3,300 pages of information for the public to review. Despite the massive amount of information, it does not obscure the fact that the BLM did not have adequate project screening processes in place for evaluating the appropriateness of this kind of project proposal when it was first submitted by MVE. Such criteria should have been in place and clearly would have helped BLM avoid conflicts with protected resources and values in the Project area.

Our primary concerns include the following:

1. BLM Idaho has never fulfilled its responsibility under the National Historic Preservation Act (NHPA) to consider the eligibility of the 33,000-acre Minidoka War Relocation Center (WRC) for listing on the National Register of Historic Places (NRHP).
2. The DEIS description of the Traditional Cultural Property (TCP) proposed by Japanese-American groups is factually incorrect and any BLM decision based on that inaccuracy would have dire consequences for historic properties within the actual proposed TCP area.
3. The DEIS contains confusing and inconsistent information regarding potential compensatory mitigation for Dispersed Environmental Justice Populations (the Japanese American Community and Native American Tribes).
4. Prior to receiving the project proposal, BLM had failed to conduct a baseline Visual Resource Management (VRM) classification[6] that would have provided much needed VRM management objectives for the Project area.
5. Multiple credible information sources indicate that the wind resources in the Project Area fall below the Department of Energy (DOE) recommended threshold for wind energy development. The DEIS fails to adequately explain or analyze the “wind potential” rationale underlying the proposed siting of the Project.
6. The completion of SWIP Phase III (SWIP-North) in Idaho and the LRWP appear be “connected actions” under NEPA. However, they are not identified or evaluated as such in the DEIS.
7. The DEIS does not consider the Area of Critical Environmental Concern (ACEC) nomination submitted for the 237,000-acre area surrounding the Minidoka WRC. Any decision on the Project should be deferred until after BLM makes a determination on the ACEC nomination.
8. The DEIS does not consider BLM’s proposed Idaho Renewable Energy Strategy (Strategy).[7] Any decision about the Project should be deferred until after the Strategy is finalized, so that BLM can apply the Strategy’s screening criteria to the Project before BLM makes a final decision whether to approve MVE’s ROW application or not.
9. The proposed action violates the spirit and letter of P.L. 109-441, an Act to Provide for the Preservation of Japanese American Confinement Sites.[8]
10. Notwithstanding FLPMA’s “multiple use” mandate, the Secretary of the Interior has an “absolute duty” under the NPS Organic Act, as amended,[9] to protect the resources and values of Minidoka NHS from unacceptable impacts.

These concerns are described in more detail below.

1. BLM Idaho has never fulfilled its responsibility under the National Historic Preservation Act (NHPA)[10] to consider the eligibility of the 33,000-acre Minidoka War Relocation Center (WRC) for listing on the National Register of Historic Places (NRHP) – Federal agency responsibility for considering the eligibility of historic properties for listing on the NRHP is well established. As described in BLM National Training Center’s “Brief and Selective Summary by Section”[11] of the NHPA:

Section 110(a)(2) of the NHPA directs each Federal agency to establish a preservation program to identify, evaluate, nominate, and protect historic properties that are eligible for the National Register. The agency shall ensure that such properties “as are listed or may be eligible for the National Register are managed and maintained in a way that considers the preservation of their historic, archeological, architectural, and cultural values in compliance with Section 106 of this Act. This section also directs that “preservation of properties not under the jurisdiction or control of the agency, but subject to be potentially affected by agency actions are given full consideration in planning. (Emphasis added)

The provisions of Section 110 are proactive, not reactive, and are reinforced in the Secretary of the Interior’s Standards for Federal Agency Historic Preservation Programs.[12] Specifically, Standards 2 and 3 state the following (emphasis added to underlined sections):

• • • • Standard 2. An agency provides for the timely identification and evaluation of historic properties under agency jurisdiction or control and/or subject to effect by agency actions. (Sec. 110(a)(2)(A), and sec. 112)
      • Standard 3. An agency nominates historic properties under the agency’s jurisdiction or control to the National Register of Historic Places. (Sec. 110(a)(2)(A)).

These responsibilities are acknowledged in the 1986 Monument RMP (p. 41), which states:

The Bureau of Land Management is required to identify, evaluate, and protect cultural resources on public lands under its jurisdiction and to ensure the Bureau-initiated or Bureau-authorized actions do not inadvertently harm or destroy non-federal cultural resources. These requirements are mandated by the Antiquities Act of 1906, the Reservoir Salvage Act of 1960 as amended by P.L. 933-191, the National Environmental Policy Act of 1969, Executive Order 11593 (1971), the Archaeological Resources Protection Act of 1979, and Section 202 of the Federal Land Policy and Management Act of 1976. (Emphasis added)

Similarly, on a project-by-project basis, the Advisory Council on Historic Preservation (ACHP) guidance on “Meeting the ‘Reasonable and Good Faith’ Identification Standard in Section 106 Review” [13] states:

The regulations implementing Section 106 of the National Historic Preservation Act (“Protection of Historic Properties,” 36 CFR Part 800) require federal agencies to identify historic properties within the Area of Potential Effects (APE) that may be affected by their undertakings. Section 800.4(b)(1) of these regulations states that federal agency officials shall make a “reasonable and good faith effort” to identify historic properties. (Emphasis added)

However, it appears that BLM has never given consideration to the potential eligibility of the 33,000-acre Minidoka WRC as a whole for listing on the NRHP. The 1986 Monument RMP made no mention of the site. Most recently, Appendix 9 of the DEIS, titled “Cultural Resources Potentially Affected by the Action Alternatives,” identifies over 5,600 individual “sites” that may or may not be eligible for listing on the NRHP. However, the WRC is notably missing from the appendix. In our experience, given the historical significance of the World War II era Minidoka WRC, the entire WRC is an obvious candidate for listing on the NRHP as either one or both of the following:

• • • A “rural historic landscape,” which is described in National Register Bulletin 30[14] as:

The rural historic landscape is one of the categories of property qualifying for listing in the National Register as a historic site or district. For the purposes of the National Register, a rural historic landscape is defined as a geographical area that historically has been used by people, or shaped or modified by human activity, occupancy, or intervention, and that possesses a significant concentration, linkage, or continuity of areas of land use, vegetation, buildings and structures, roads and waterways, and natural features. Rural landscapes commonly reflect the day-to-day occupational activities of people engaged in traditional work such as mining, fishing, and various types of agriculture. Often, they have developed and evolved in response to both the forces of nature and the pragmatic need to make a living. Landscapes small in size and having no buildings or structures, such as an experimental orchard, are classified as sites. Most, however, being extensive in acreage and containing a number of buildings, sites, and structures–such as a ranch or farming community–are classified as historic districts. (Emphasis added)

And/or as:

• • • A “traditional cultural property,” which is described in National Register Bulletin 38[15] as:

The traditional cultural significance of a historic property [] is significance derived from the role the property plays in a community’s historically rooted beliefs, customs, and practices. A traditional cultural property [] can be defined generally as one that is eligible for inclusion in the National Register because of its association with cultural practices or beliefs of a living community that (a) are rooted in that community’s history, and (b) are important in maintaining the continuing cultural identity of the community. (Emphasis added)

Either of the above designations would be particularly appropriate for the Minidoka WRC in its entirety. The historical significance and potential eligibility of Minidoka WRC for listing on the NRHP has been known for decades. An initial 6-acre portion of the WRC was listed on the NRHP as long ago as 1979.[16] The Nomination Form acknowledged that “[t]he property being nominated was only a small part of the Minidoka Relocation Center.”[17] (Emphasis added) Over two decades later, on January 17, 2001, a larger 72.75 acres portion of Minidoka WRC was designated as Minidoka Internment National Monument making the site the 385th unit of the national park system. On May 8, 2008, the U.S. Congress expanded the park unit to 388 acres by passing Public Law 110-229, which changed the name to Minidoka National Historic Site and added the Bainbridge Island Japanese American Memorial in Washington State to the national park unit.[18]

We understand that the Friends of Minidoka submitted a TCP study to BLM Idaho in December 2022 and BLM has acknowledged the proposal in the DEIS. However, our point is that it is an affirmative responsibility of the Bureau, not stakeholders, under Section 110 to “identify, evaluate, and protect cultural resources on public lands under its jurisdiction.” The fact remains that BLM Idaho has never considered the potential eligibility or submitted a nomination for the 33,000-acre WRC to be listed on the NRHP as required under Section 110 of the NHPA. That fact is confirmed by the notable absence of the 33,000-acre WRC in Appendix 9 of the DEIS.

Instead, BLM is now entertaining a proposed action (Alternative B) in which “[t]he nearest wind turbine would be set back over 0.5 miles from the Minidoka NHS boundary and 1.7 miles from the Minidoka NHS Visitor Center (KOP 1) in the project layout design.” (DEIS p. 167) In addition, Alternative B’s “siting corridors would overlap 4,818 acres (8 square miles) of Minidoka WRC.” (DEIS p. 168)

If BLM had instituted an effective “preservation program to identify, evaluate, nominate, and protect historic properties that are eligible for the National Register” as required un Section 110(a)(2), BLM would have known the WRC (not just the NHS) is potentially historically significant; and proactively determined whether it is eligible for listing on the NRHP. Depending upon that determination, BLM could or should have taken appropriate steps to manage and protect the WRC from the impacts of major development (e.g., through setbacks or exclusions zones) well before MVE submitted its current Project proposal. In our view, BLM’s failure to proactively address its Section 110 responsibilities is the root cause for the current situation.

2. The DEIS description of the Traditional Cultural Property (TCP) proposed by Japanese-American groups is factually incorrect and any BLM decision based on that inaccuracy would have dire consequences for historic properties within the actual proposed TCP area – In December 2022, Algonquin Consultants, Inc. completed a TCP study titled “A Landscape of Isolation: A Traditional Cultural Property Study of the Minidoka Concentration Camp and its Viewsheds”[19] that was submitted to BLM on behalf of the Friends of Minidoka.[20] Whereas Minidoka WRC comprises approximately 33,000 acres of the Project area, the TCP proposal described in the study would be considerably larger than the just the footprint of the WRC. See Figure 25, page 40, in the study, which is shown below.

In contrast, p. 3-157 of the DEIS describes the TCP proposal as follows:

Those Japanese Americans consulting on the project have asked that Minidoka WRC, inclusive of Minidoka NHS, be considered a TCP. As a result, the BLM is treating [only the] Minidoka WRC as a TCP, historically associated with the Japanese American communities. In accordance with National Register Bulletin 38 (NPS 1998), this Japanese American TCP would be NRHP-eligible because of its association with cultural practices and beliefs of a living community that a) are rooted in that community’s history and b) are important in maintaining the continuing cultural identity of the community. Minidoka WRC retains the integrity of relationship between a property and the beliefs or practices that give it significance as a TCP. Minidoka WRC, as a TCP, retains its historical condition (e.g., setting, feeling, association), as expressed by the Japanese American communities and which could be impacted by the project. (Emphasis added)

In brief, BLM’s description of the TCP proposal as being limited to the 33,000-acre footprint of the WRC is much smaller than what was actually indicated in the TCP study’s Figure 25 on page 40. As a result, BLM should revise its description of the proposed TCP in the DEIS so it accurately reflects the actual size of the TCP proposal as submitted. Any BLM decision about the Project or the TCP proposal itself should be based on the corrected description, not the faulty assumption that the proposed TCP would be limited to the footprint of the WRC.

Lastly, the 1986 Monument Resources Management Plan (RMP)[21] provides guidance to the SFO in the event that a project site is “determined to be of significant value; [or] eligible for or on the National Register of Historic Places.” (Emphasis added)Specifically, p. 42 of the RMP states:

Cultural resource values discovered in a proposed work area will be protected by adhering to the following methods: 1) Redesigning or relocating the project; 2) Salvaging, through scientific methods, the cultural resource values pursuant to the SHPO agreement; 3) Should the site be determined to be of significant value; eligible for or on the National Register of Historic Places; and/or the above mentioned methods are not considered adequate, the project will be abandoned.” (Emphasis added) 

Given the likelihood that the proposed TCP is eligible for listing on the NRHP, BLM should “abandon the project” and deny MVE’s ROW grant application.

3. The DEIS contains confusing and inconsistent information regarding potential compensatory mitigation for Dispersed Environmental Justice Populations (the Japanese American Community and Native American Tribes) – DEIS Appendix B, Table App4-5, on Potential Compensatory Mitigation Measures, Items XIV-XVI indicates that MVE will provide the following compensatory mitigation to Environmental Justice Populations:

• • • MVE would fund the design and preparation of an ethnographic study and report related to Minidoka National Historic Site. This would be accomplished in close coordinate with Japanese American Stakeholders and the National Park Service.
    • MVE would fund the design and preparation of an ethnographic study and report related to Shoshone-Bannock Tribes and Shoshone-Paiute Tribes. This would be accomplished in close coordinate with these Native American Tribes.
    • MVE would establish a fund to be used based on recommendations from a committee that would be established and comprise Minidoka NHS stakeholders with an emphasis on including representatives of Japanese American organizations. Recommendations from the committee would focus on enhancing the fundamental values of Minidoka NHS so that it will continue to provide opportunities for commemoration and healing through pilgrimages and provide opportunities for bettering humanity as a site of conscience. Recommendations from the committee may include but are not limited to the following:

• • • • • • Establishing conservation easements to preserve the visual character of the surrounding landscape
          • Removal of existing visual intrusions within close proximity to Minidoka NHS that take away from meeting its fundamental values
          • Increasing access to pilgrimages and educational materials that provide a better understanding of the history associated with Minidoka NHS

The above section of Appendix B creates the impression that MVE would provide the listed compensatory mitigation regardless of which action alternative is selected. However, for the majority of impact topics discussed in Chapter 3 of the DEIS, BLM states, in effect, “that compensatory mitigation would not be warranted.” The only two impact areas that could possibly result in compensatory mitigation for the Japanese American Community and Native American Tribes are “Cultural Resources” and “Environmental Justice and Socioeconomics.”

However, both Sections 3.5.6.4 and 3.6.2.4.2 in Chapter 3 state specifically that (for Cultural Resources and Environmental Justice and Socioeconomics respectively) the “compensatory mitigation measures could be applied to [only] Alternative B [but only] if the BLM determines it is warranted (see EIS Appendix 4).” (Emphasis added)

These statements that “compensatory mitigation could apply [only] to Alternative B” are both confusing and concerning because BLM has elsewhere created an expectation among the Japanese American Community and Native American Tribes that the proposed compensatory mitigation measures would apply regardless of which action alternative is ultimately selected. BLM should correct the wording in these two sections of the DEIS (or in Appendix B, if needed) to accurately reflect BLM’s intent about compensatory mitigation.

4. Prior to receiving the Project proposal, BLM had failed to conduct a baseline Visual Resource Management (VRM) inventory or classification[22] that would have provided much needed landscape management objectives for the Project area – In principle, BLM should have prepared a baseline VRM inventory and management classification assessment during one of its previous land use planning processes for the area well before considering a project proposal of this magnitude. Under BLM’s VRM system, the Class rating determines the landscape management objectives for the area. In this case, the 1986 Monument RMP[23] did not include a VRM management classification or landscape management objectives that would serve as a baseline for determining the appropriateness of future development proposals. In addition, the RMP also did not recognize or consider the historical significance of the Minidoka WRC or contemplate the creation of Minidoka Internment National Monument by Presidential Proclamation in 2001 or the establishment of Minidoka NHS by act of Congress in 2008. As a result, protecting visual resources and landscape scenic values from the perspective of the Minidoka NHS or the WRC had never been formally considered by BLM before it received the LRWP proposal.

Most concerning is that BLM waited until late in the DEIS planning process to finally determine that the project area would be considered a Class IV VRM area, which is the least protected class of visual resources in BLM’s VRM system. See the Visual Resources Technical Report for the Lava Ridge Wind Project[24] dated January 2023, which is 34^th document listed on the Project website. Based on its completion date, this key report identifying the project area as a Class IV VRM area was not finalized until literally a few days or a few weeks before the DEIS was issued for public review.

According to BLM Manual H-8410-1[25] on “Visual Resource Inventory,” a Class IV rating allows “management activities which require major modifications of the existing character of the landscape. The level of change to the characteristic landscape can be high. These management activities may dominate the view and be the major focus of viewer attention.” (Emphasis added)  In other words, a Class IV rating provides little if any protection to viewsheds within or near the Project area, which in this case includes visual resources as seen from the perspective of Minidoka NHS and the WRC, and from Native American cultural sites such as Wilson Butte Cave.

As described in multiple places in the DEIS, BLM’s primary “strategy” for protecting cultural resources, in general, is to focus on avoiding physical impacts to significant cultural sites by imposing a minimal “setback” (e.g., 0.5 miles from the boundary of Minidoka NHS or 1 mile from Wilson Butte Cave under Alternative B) for wind turbine installation. BLM’s focus on avoiding primarily adverse physical effects to cultural sites in the Project area is ineffectual at protecting visual resources and related scenic values from the perspective of these important historical and cultural sites. The adverse effects to visual resources that are of concern are inherently non-physical effects, not physical. While minimal setbacks may prevent ground disturbance or other direct physical impacts in the immediate vicinity of (i.e., literally on top of) specific cultural resources, they offer little, if any, effective protection to the culturally significant landscape views as seen from Minidoka NHS, the WRC, or Wilson Butte Cave.

In our scoping comments[26] dated October 20, 2021, we voiced the concern that “if BLM were to conduct a baseline visual resource inventory or classification for the project area now only AFTER a massive wind farm has already been proposed, the classification results will be controversial regardless of outcome.” In essence, waiting to determine the VRM Class and related landscape management objectives until after a major development has been proposed is out of compliance with BLM VRM procedures and creates the appearance of a conflict of interest on BLM’s part. For that reason, in our scoping comments we strongly recommended that “BLM and NPS hire an independent third-party consultant, such as the Argonne National Laboratory,[27] to conduct such a baseline assessment and VRM classification” so that the results would appear unbiased and credible.

However, it appears that a BLM contractor, SWCA Environmental Consultants, conducted the VRM assessment for the Project; and SWCA has determined that “the visual resources within the project area would fall primarily under Class IV, with smaller portions of both Class II and III.” The basis for this finding is not revealed until Section 4.1.4 of the Visual Resources Technical Report for the Lava Ridge Wind Project_508 (report),[28] which is the 34th document listed on the BLM eplanning website. SWCA’s VRM analysis and determination are not adequately described or explained in the DEIS proper or in its appendices. However, it appears that BLM has adopted SWCA’s recommendation, as indicated by Figure 3.16-4 in the DEIS, which is a color coded map that indicates the project area is considered a Class IV area. The figure in the DEIS is the same as “Figure 5. Visual resource inventory classes for the analysis area” in the contractor’s report.

Because SWCA’s technical report is dated “January 2023,” it suggests that BLM has adopted a last minute recommendation that BLM should allow the highest level of development and visual resource impacts within the Project area. Based on the respective landscape management objective descriptions, it seems that a Class IV rating is the only result that would allow the Project to move forward at this location.

BLM’s determination that the project area is a Class IV visual resource area at this stage of the planning process is problematic for several reasons. First, as explained on the BLM Visual Resource Management (VRM) Classes website,[29] “[w]hen Visual Resource Management (VRM) class objectives are designated for the lands in an RMP, management actions and allowable uses are determined that reflect the VRM class objectives.” (Emphasis added) In this case, BLM had no VRM class objective(s) to serve as a basis for determining if the proposed Project is appropriate or allowable. Similarly, BLM IM 2009-043[30] states, in part: “The BLM Land Use Planning Handbook requires that VRM management classes be identified in land use plans based on inventories of visual resources as well as management considerations for other potential land uses… The VRM management classes are intended to establish landscape management objectives for a variety of surface disturbing activities.” (Emphasis added) In this case, the classification analysis was conducted and VRM landscape management objectives were determined only after a major project proposal had been submitted and accepted by BLM as the Proposed Action.

Second, it is a concern that the determination of the Class IV rating for the project area is not described until a technical report that is the 34th document listed on the BLM eplanning website.[31] It would have been appropriate to provide a summary of the VRM class analysis and determination in the body of the DEIS (such as in Chapter 2 or 3 or in an Appendix), where it would have been more apparent and more likely to be subject to public review and comment. It appears the only information about the Class IV rating in the DEIS proper is the color coded map provided in previously mentioned Figure 3.16-4.

Third, the impact of BLM’s failure to previously establish VRM-related landscape management objectives in the area surrounding Minidoka WRC is clearly reflected in MVE’s siting decision, which is described in MVE’s Plan of Development (POD) in DEIS Appendix C.[32] Section C-2 on Alternative Project Locations indicates that MVE initially focused on several other locations that ultimately were found to be in conflict with sage grouse habitat protections. This resulted in the “lead federal and state agencies to encourage MVE to seek another alternative location for wind energy development… MVE proceeded to renew its siting analysis… Special emphasis was placed on avoiding areas designated as priority or important sage grouse habitat. As a result of these extensive siting efforts, MVE has identified the current Project area.” (Emphasis added)

Notably, in MVE’s evaluation of “the current Project area,” there is no mention of the area’s VRM Class rating or landscape management objectives (presumably because there were none), or related concerns about visual resources in the vicinity of Minidoka NHS or the WRC. In contrast, the POD goes on to say that MVE ruled out another location based on potential conflicts with Class III visual resources. See Appendix C, Subsection 3-1.1.1, which states: “MVE considered placement of wind turbines and substations within a Visual Resource Management (VRM) Class III area along Highway 24… However, it is not certain that wind turbines and substations will meet the VRM Class III management objectives…  The current Proposed Action has removed all wind turbines and substations from the VRM Class III area.” (Emphasis added) In other words, MVE recognized and avoided potential conflicts of building a wind farm in another location with a Class III rating; but absent any existing VRM Class rating for the Project area, MVE apparently did not anticipate and/or was not informed by BLM of potential conflicts with the protection of visual resources surrounding Minidoka NHS.

Fourth, the BLM should have been well aware of wind turbine visibility and visual impact threshold distances in western landscapes. A 2012 study[33] of wind turbine visibility in western landscapes conducted by the Argonne National Laboratory for the BLM found that:

Under favorable viewing conditions, the wind facilities were judged to be major foci of visual attention at up to 19 km (12 mi) and likely to be noticed by casual observers at >37 km (23 mi). A conservative interpretation suggests that for such facilities, an appropriate radius for visual impact analyses would be 48 km (30 mi), that the facilities would be unlikely to be missed by casual observers at up to 32 km (20 mi), and that the facilities could be major sources of visual contrast at up to 16 km (10 mi). (Emphasis added)

Yet BLM has entertained multiple action alternatives that would allow industrial-scale wind turbines in close proximity to culturally significant resources, such as Minidoka NHS, the WRC, and Wilson Butte Cave. All action alternatives would allow turbines at distances the 2012 study found “could be major sources of visual contrast” (i.e., within 10 miles); and “unlikely to be missed by casual observers” (i.e., within 20 miles).

Last but not least, the proximity of wind turbines to sensitive viewing locations in each of the action alternatives is fundamentally at odds with BLM guidance described in “Best Management Practices for Reducing Visual Impacts of Renewable Energy Facilities on BLM-Administered Lands” (BMPs),[34] published in 2013. Specifically, Section 6.2.1, p. 141, of the BMPs recommends: “Site [alternative energy] facilities and ROWs outside of sensitive viewsheds or as far as possible from sensitive viewing locations.” (Emphasis added) Given the proposed size of the wind turbines, a minimal setback of 0.5 mile from the boundary of Minidoka NHS or 1.0 mile from Wilson Butte Cave, as proposed under Alternative B, are obviously not “outside of sensitive viewsheds or as far away as possible from sensitive viewing locations.” Why did BLM not follow its own BMPs “for reducing visual impacts of renewable energy facilities on BLM-administered lands?”

5. Multiple credible information sources indicate the wind resources in the Project area fall BELOW the U.S. Department of Energy (DOE) recommended threshold for wind energy development. However, the DEIS fails to adequately explain or analyze the “wind potential” rationale underlying the proposed siting of the Project – As background, the DOE Wind Energy Technologies Office states that “[a]reas with annual average wind speeds around 6.5 meters per second and greater at 80-m height are generally considered to have a resource suitable for wind development.”[35]. However, the National Renewable Energy Laboratory (NREL) wind resource map for Idaho indicates that the average wind speed in the vicinity of the Lava Ridge project site just north of Twin Falls is less than the recommended 6.5 meters per second threshold. See map below.

As further evidence of the concern about the adequacy of wind energy potential at the site, see DEIS section 3.1.2.2 (p. 3-7) on “Tiering to the 2005 Programmatic Wind Environmental Impact Statement (PEIS).”[36] As described, the 1986 Monument RMP for the SFO was NOT amended by the Record of Decision for the PEIS “for a variety reasons (BLM 2005b:B-2), including that developable wind resources were not deemed present in the area managed by the SFO at that time, or that BLM (1986) was expected to be amended in the near term (and thus analysis would be incorporated into BLM [1986]).” (Emphasis added)

In addition, a review of Appendix B, p. B-70, of the PEIS indicates the wind energy potential for the SFO is “Low.” See the following map at PEIS Appendix B, p. B-70.

This begs the question – why is BLM entertaining a massive wind energy project at a location with “low” wind energy potential, so low, in fact, that the Monument RMP was NOT amended by the 2005 Wind Energy PEIS? When considering the current proposed Project area, to what extent did MVE or BLM consider the Project’s obvious, significant, and unmitigable adverse effects on resources and values of Minidoka NHS, a unit of the National Park System before proceeding with Project planning at the proposed location? And why did BLM not suggest or discourage MVE from applying for this site because of the direct conflicts with the conservation of Minidoka’s resources and values? Based on the POD information cited above, it sounds like BLM’s primary feedback to MVE related to the avoidance of conflicts with sage grouse habitat. As a result, MVE was unaware or unconcerned about potential visual resource impacts in the vicinity of Minidoka. These questions/concerns have not been adequately addressed in the DEIS, which is sorely lacking in information or analysis regarding the rationale for siting the Project in a low wind energy potential area immediately adjacent to Minidoka NHS.

6. The completion of SWIP Phase III (AKA SWIP-North) in Idaho and the LRWP appear be “connected actions” under NEPA; however, they are not identified or evaluated as such in the DEIS – We previously raised this concern in our scoping comments. Although the Record of Decision (ROD) for SWIP was issued in 1994, SWIP Phase III (AKA SWIP-North) has never been constructed. As proposed, SWIP-North would provide a 275-mile 500 kV transmission line between Midpoint Sub-station near Shoshone, Idaho and Robinson Summit in Nevada. Because the NEPA review for SWIP-North was conducted nearly 30 years ago, it is surely outdated as environmental conditions in the project area have changed significantly since 1994 (e.g., impacts of climate change; changes in sage grouse conservation).

In December 2020, LS Power reported[37] that SWIP-North is “permitted but seeking cost recovery” (i.e., construction funding) and that the “project is nearly construction ready and could be online as early as June 2024.” The same report also indicated that SWIP-North would provide a link to “Idaho Power Company’s interconnection queue; primarily wind, including a 1050 MW Lava Ridge wind project, being developed by [an] LS Power affiliate that is scheduled to be online in 2024.” (Emphasis added.)

Based on this statement, SWIP-North is clearly “connected” to the Lava Ridge Wind Project. The long delayed completion of SWIP-North, first approved in 1994 but never constructed, and the proposed LRWP are both planned for completion in 2024; both are being developed by LS Power or an “affiliate” of LS Power; and either project would be impractical without the other. In fact, the map below contained in LS Power’s December 2020 report geographically illustrates the dependency of one project’s existence upon the completion of the other, and vice versa.

Last but not least, the most recent (July 2021) U.S. Geological Survey (USGS) interactive “wind turbine database” map[38] for Idaho shows there are no existing wind turbines in the immediate vicinity of the Twin Falls-Midpoint Substation-Shoshone area.

Completing the Idaho leg of an interstate high voltage transmission line that terminates in rural Idaho nearly three decades after it was approved makes no sense unless and until there will be a major energy generation facility near the same terminus. As a result, SWIP-North and the LRWP clearly appear to be “connected actions” under NEPA. As described in BLM Permanent Instruction Memorandum (IM) No. 2018-023:[39]

Connected actions are those proposed Federal actions that are “closely related” and “should be discussed” in the same NEPA document (40 CFR 1508.25 (a)(1)). Proposed actions are connected if they automatically trigger other actions that may require an environmental impact statement; cannot or will not proceed unless other actions are taken previously or simultaneously; or if the actions are interdependent parts of a larger action and depend upon the larger action for their justification (40 CFR 1508.25 (a)(1)). (Emphasis added.)

If the connected action is also a proposed BLM action, we recommend that you include both actions as aspects of a broader “proposal” (40 CFR 1508.23), analyzed in a single NEPA document. You may either construct an integrated purpose and need statement for both your proposed action and the connected action, or you may present separate purpose and need statements for your proposed action and the connected action. Regardless of the structure of the purpose and need statement(s), you must develop alternatives and mitigation measures for both actions (40 CFR 1508.25(b)), and analyze the direct, indirect, and cumulative effects of both actions (40 CFR 1508.25(c)).  (Emphasis added)

In other words, if either action “cannot or will not proceed without the other,” then they are “connected” under NEPA and should be evaluated accordingly in the same NEPA document. As a result, we urge BLM to defer any further planning for the LRWP until BLM has prepared a supplemental EIS that properly analyzes both SWIP-North (Phase III) and Lava Ridge as “connected actions” under NEPA.

7. The DEIS does not consider the Area of Critical Environmental Concern (ACEC) nomination submitted for the 237,000-acre area surrounding the Minidoka WRC. Any decision on the Project should be deferred until after BLM makes a determination on the ACEC nomination – FLPMA requires BLM to “give priority to the designation and protection of areas of critical environmental concern,” or ACECs, in the development and revision of land-use plans (43 U.S.C. § 1712(c)). The statute defines an Area of Critical Environmental Concern (ACEC) as follows:

Areas within the public lands where special management attention is required (when such areas are developed or used or where no development is required) to protect and prevent irreparable damage to important historic, cultural, or scenic values, fish and wildlife resources or other natural systems or processes, or to protect life and safety from natural hazards [43 U.S.C. § 1702(a)]. (Emphasis added)

Page 55 of the TCP study prepared by Algonquin Consultants, Inc. (see General Comment #2 above) states that:

Algonquin also completed an ACEC Study report and nomination concurrent with this TCP Study that was submitted to the BLM, Twin Falls District Office. The ACEC nomination found that the BLM should establish the approximately 237,000-acre area surrounding the Minidoka Relocation Center as an Area of Critical Environmental Concern (ACEC).Minidoka and its vicinity represent a sensitive and culturally important site for the Minidoka descendant community. The landscape surrounding and incorporating Minidoka is also of significant national and historic importance, commemorating the experiences of incarcerated Japanese Americans during WWII. (Emphasis added)

Given that FLPMA requires BLM to “give priority to the designation and protection of ACECs,” it is incumbent upon BLM to fully evaluate the ACEC nomination before proceeding with further planning or approval of the ROW application for the Project.

8. The DEIS does not consider BLM’s pending Idaho Renewable Energy Strategy (Strategy).[40] Any decision about the LRWP should be deferred until after the Strategy is finalized, so that BLM can apply the Strategy’s screening criteria to the Project before BLM makes a final decision whether to approve MVE’s ROW application or not – BLM has recently announced that it is undertaking a review of its Renewable Energy Strategy (Strategy) in Idaho. Note: We submitted separate comments on the proposed Strategy and will not repeat them here.

First, we commend BLM Idaho for reviewing its Strategy by taking a holistic look at its current approach to managing renewable energy projects. In our view, the current policy, if there is one, sorely lacks effective screening criteria for evaluating renewable energy proposals in Idaho. As an effective model for renewable energy project screening criteria, we call your attention to the 2012 Western Solar Plan (Plan).[41] The Plan identifies “priority development zones” with high energy development potential and low potential for conflict with the protection of other resources and uses. It also identifies numerous “exclusion areas” where utility scale energy development would NOT be allowed in order to “to support the highest and best use of public lands by avoiding potential resource conflicts and reserving for other uses public lands that are not well suited for utility-scale solar energy development.”

Had a proper project screening process been in place in Idaho that identified priority wind energy development zones and exclusion areas, we suspect BLM would have denied or redirected the LRWP to another location when it was first proposed. This is due to the relatively low wind energy potential in the Project area and the relatively high potential for conflict of the Project with the protection of nearby historic and cultural sites. In the absence of an effective screening process, MVE, BLM, and many stakeholders have now invested considerable time, energy, and expense in a complicated and lengthy planning process. It is inevitable that whatever BLM decides to do with the Project after such a process, some party or parties will be extremely disappointed with the decision.

BLM Idaho has stated that the summary document for the Idaho Renewable Energy Strategy will be available by May 1, 2023,[42] which means BLM will complete the Strategy well before it issues a final EIS or Record of Decision (ROD) on the LRWP. Once the Strategy is completed, we recommend that BLM apply it to the Project to help inform its decision about whether to approve the Project or not. 

9. The proposed action violates the letter and intent of P.L. 109-441, an Act to Provide for the Preservation of Japanese American Confinement Sites[43] – The Act requires the Secretary to establish a program “for the purpose of identifying, researching, evaluating, interpreting, protecting, restoring, repairing, and acquiring “historic confinement sites in order that present and future generations may learn and gain inspiration from these sites and that these sites will demonstrate the Nation’s commitment to equal justice under the law.” (Emphasis added.) As described in the law, this is an “all of the above” mandate, not a discretionary or “one or none of the above” decision option for Interior agencies.

The proposed action, a massive wind farm development with up to 400 wind turbines with a maximum height of up to 740 feet, will be highly visible, dominate the landscape, and overwhelm the scenic vistas immediately north and northeast of Minidoka National Historic Site (NHS). In addition, the proposed action would “overlap 4,818 acres (8 square miles) of Minidoka WRC.” (DEIS p. 168) Moving forward with the proposed action, as described, would be the antithesis of the Act’s mandate to right the injustice of Nikkei incarcerations and demonstrate the “Nation’s commitment to equal justice under the law.”

Although portions of the DEIS acknowledge the history of Japanese American incarceration at Minidoka WRC, the fact remains that all proposed action alternatives would cause substantial adverse effects to the site. As a result, BLM’s planning process continues to seem indifferent to the unjust treatment suffered by and the amazing resiliency demonstrated by the Nikkei community at Minidoka WRC[44] during one of the gravest American civil rights injustices of the 20^th century. Moving forward, consistent with P.L. 109-441, BLM should carefully re-consider the historical and cultural context of the Minidoka landscape that BLM’s proposed action would irreparably harm.

10. Notwithstanding FLPMA’s “multiple use” mandate, the Secretary of the Interior has an “absolute duty” under the NPS Organic Act, as amended,[45] to protect the resources and values of Minidoka NHS from unacceptable impacts – As the chief executive of the U.S. Department of the Interior, the Secretary is responsible for ensuring the Department and its bureaus comply with a variety of agency-specific legal mandates. For example, as stated in the DEIS (p. 1-1), FLPMA “requires the BLM to manage public lands for multiple use and sustained yield and authorizes the BLM to issue ROW grants on public lands for systems for generation, transmission, and distribution of electric energy (FLPMA Title V).” While FLPMA emphasizes managing public lands for multiple uses, at its core it is a conservation law. Section 102 (a)(8) of the Act states, in part: “the public lands be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values[.] (Emphasis added.)

In contrast to the BLM’s “multiple use mandate” under FLPMA, the NPS-managed resources at Minidoka NHS are protected under the “conservation mandate” of the NPS Organic Act of 1916 and subsequent amendments. The Organic Act established the fundamental purpose of units of the National Park System, which is:

to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations. (54 USC § 100101(a))

Congress supplemented and clarified the NPS Organic Act’s 1916 provisions through enactment of the General Authorities Act in 1970, and again through enactment of a 1978 amendment commonly referred as the “Redwood amendment” because it was included in a bill expanding Redwood National Park. Key language from these amendments includes the following:

Congress further reaffirms, declares, and directs that the promotion and regulation of the various areas of the National Park System… shall be consistent with and founded in the purpose established by section 1 of this title [the Organic Act provision quoted above], to the common benefit of all the people of the United States. The authorization of activities shall be construed and the protection, management, and administration of these areas shall be conducted in light of the high public value and integrity of the National Park System and shall not be exercised in derogation of the values and purposes for which these various areas have been established, except as may have been or shall be directly and specifically provided by Congress. (16 USC 1a-1) (Emphasis added)

 Congress intended the language of the Redwood Amendment to the General Authorities Act to reinforce the provisions of the Organic Act, not create a substantively different management standard. As stated in the Senate committee report:[46]  

The Secretary is to afford the highest standard of protection and care to the natural resources within . . . the National Park System. No decision shall compromise these resource values except as Congress may have specifically provided. . . . The Secretary has an absolute duty, which is not to be compromised, to fulfill the mandate of the 1916 Act to take whatever actions and seek whatever relief as will safeguard the units of the national park system. (Emphasis added)

Similarly, the House committee report described the Redwood amendment as a “declaration by Congress” that the promotion and regulation of the National Park System are to be consistent with the Organic Act. The House report[47] stated:

The Secretary is to afford the highest duty of protection and care [to parklands]. (Emphasis added)

 In other words, while FLPMA Title V may “authorize the BLM to issue ROW grants on public lands for systems for generation, transmission, and distribution of electric public lands,” the Secretary of the Interior has overarching responsibility over all bureaus of the Department. The Secretary’s responsibility includes “an absolute duty, which is not to be compromised,…to take whatever actions and seek whatever relief as will safeguard the units of the national park system,” including Minidoka NHS. We urge Secretary Haaland to fulfill this absolute duty by denying MVE’s problematic ROW grant application.

SECTION BY SECTION COMMENTS

 

1. Chapter 1. INTRODUCTION

A. Section 1.2 Purpose and Need (p.1-1) – First, we appreciate that the Purpose and Need statement provides for the possibility that BLM might deny MVE’s right-of-way (ROW) grant application. Because the proposed action as well as any of the other action alternatives would have significant, unavoidable adverse effects on visual resources surrounding Minidoka NHS, the WRC, and Native American cultural sites such as Wilson Butte Cave, we strongly support Alternative A (No Action). It is the only alternative that would adequately protect the landscape settings of Minidoka NHS, the WRC, and Wilson Butte Cave.

In contrast, we are very concerned that the Purpose and Need statement includes no mention of the “need” to conserve resources and values within the Project area. As stated in the DEIS (p. 1-1),”[t]he need for this action arises from FLPMA, which requires the BLM to manage public lands for multiple use and sustained yield and authorizes the BLM to issue ROW grants on public lands for systems for generation, transmission, and distribution of electric energy (FLPMA Title V).” This limited statement creates the impression that BLM is legally required to err on the side of “use” rather than “conservation.”

Despite its emphasis on allowing multiple uses, at its core FLMPA is a conservation law. For example, Section 102 (a)(8) of the Act states that:

the public lands be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values; that, where appropriate, will preserve and protect certain public lands in their natural condition; that will provide food and habitat for fish and wildlife and domestic animals; and that will provide for outdoor recreation and human occupancy and use. (Emphasis added.)

We ask that BLM revise the Purpose and Need statement to reflect not only FLMPA’s “multiple use mandate.” The statement should also acknowledge the Act’s “conservation mandate,” which requires BLM to “protect the quality of… scenic [and] historical… values” as well. Otherwise, it sounds as if BLM’s “mandate” is primarily focused on “use” rather than “conservation,” which clearly is not the intent of FLPMA.

B. Section 1.4 Conformance with Land Use Plans (p. 1-2) – This section of the DEIS states the following:

The Proposed Action and alternatives described in this EIS are in conformance with the [1986 Monument Resources Management Plan (RMP)], as amended, including the 2015 Idaho and Southern Montana Grater Sage-Grouse Approved Resource Management Plan Amendment (BLM 2015). (Emphasis added) The Proposed Action and alternatives fall within an area designated as “moderate use“, which is described as follows:

Moderate use areas are generally suitable for a wide range of existing and potential uses and will be managed for production and use of their forage, timber, minerals and energy, recreation, or other values. Where conflicts occur with resources or uses, full consideration of all benefits and costs will be taken into account in resolving such conflicts. Sensitive and significant values will always be protected consistent with Federal and State law. Public lands in a moderate use area will be retained in Federal ownership. (BLM 1986:4) (Emphasis added)

No special limitations or restrictions on the type or intensity of resource use will be applied in this area. Valid uses will be allowed subject to environmental review and stipulations or special conditions to protect resources. (BLM 1986:6) (Emphasis added)

We believe the BLM has mischaracterized the proposed LRWP as a “moderate use.” An energy generation facility is defined as a “public utility” under applicable Idaho statutes; and a “public utility installation” is an “intensive use/development” that is explicitly precluded in the 1986 Monument RMP, see p. 4, which states:

Intensive Use/Development Areas – These areas will generally be managed for a major or large-scale intensive use/development such as a major campground, off-road vehicle (ORV) area, mine, or public utility installation. No intensive use/development areas were estab­lished in the Monument RMP. (Emphasis added)

First, under Title 61 of the Idaho Statutes, §61-118[48], LRWP meets the definition of an “electric plant”:

The term “electric plant” when used in this act includes all real estate, fixtures and personal property owned, controlled, operated or managed in connection with or to facilitate the production, generation, transmission, delivery or furnishing of electricity for light, heat or power, and all conduits, ducts or other devices, materials, apparatus or property for containing, holding or carrying conductors used or to be used for the transmission of electricity for light, heat or power. (Emphasis added)

Second, under § 61-129[49] of the statute, LWRP meets the definition of a “public utility”:

The term “public utility”…includes every common carrier, pipeline corporation, gas corporation, electrical corporation, telephone corporation and water corporation … and each thereof is hereby declared to be a public utility and to be subject to the jurisdiction, control and regulation of the commission and to the provisions of this act. The term “public utility” as used in this act shall cover cases: (1) Where the service is performed and the commodity delivered directly to the public or some portion thereof, and where the service is performed or the commodity delivered to any corporation or corporations, or any person or persons, who in turn, either directly or indirectly or mediately or immediately, performs the services or delivers such commodity to or for the public or some portion thereof[.] (Emphasis added)

In other words, LWRP, if approved, will be considered a “public utility” under applicable Idaho statutes; “public utility installations” are explicitly identified as an “intensive use/development” under the Monument RMP; and no “intensive use/development areas” were estab­lished in the RMP. Therefore the Project is not in conformance with the Monument RMP. We ask that BLM revise the DEIS to accurately reflect the nonconformance.

In addition to the legal definitions described above, we also question in common sense terms how the BLM could view the LRWP as only a “moderate use” of the area. As described in the FR Notice, “[t]he Project area spans 197,474 acres and all project components would be sited within a series of corridors. These corridors are approximately one-half mile wide and cover approximately 84,385 acres.”  (Emphasis added) In mathematical terms, 84,385 acres or 43% of the Project area would be heavily developed with concentrated corridors of as many as 400 wind turbines up to 740 feet tall. While there may be “open space” between the numerous corridors, the visual adverse effects of such concentrated development over such a large area would resonate across the Project area and beyond. If one compares the size of the Project area with the size of the proposed ACEC described in General Comment #7 above, the Project area of 197,474 acres would constitute 83% of the proposed 237,000-acre ACEC. This hardly seems like “moderate use” to us.

C. Section 1.7 Relationship to Statutes, Regulations, and Other NEPA Documents (p. 1-7) – In general, this section is woefully incomplete, as presented, and defers providing important statutory background information until much later in the DEIS in Appendix 2. Such information would provide essential context for the DEIS’s discussion about the appropriateness of the Project as well as for the analyses of impacts. A careful review of Appendix 2 reveals it is similarly incomplete and lacking in relevant statutory information. We will provide detailed comments about Appendix 2 later in this letter.

In addition, Section 1.7 indicates that “this EIS tiers to the BLM’s 2005 ‘Final Programmatic Environmental Impact Statement for Wind Energy Development on BLM-Administered Lands in the Western United States’ (PEIS), including the implementation of best management practices (BMPs) for wind energy development on BLM public lands.” (Emphasis added) We question why BLM would “tier” the current DEIS to the 2005 PEIS. First, we note that BLM did NOT amend the Monument RMP, which covers the Project area, to incorporate the provisions of the PEIS because “developable wind resources were not deemed present in the area managed by the SFO at that time.” See General Comment #5 above.

Second, why would BLM “adopt” only the BMPs from a 2005 plan that it otherwise did not incorporate/amend into the 1986 Monument RMP, but then disregard more recent, more effective BMPs described in “Best Management Practices for Reducing Visual Impacts of Renewable Energy Facilities on BLM-Administered Lands” (BMPs),[50] published in 2013?

Specifically, Section 6.2.1, p. 141, of the 2013 BMPs recommends: “Site [alternative energy] facilities and ROWs outside of sensitive viewsheds or as far as possible from sensitive viewing locations.” (Emphasis added) The proposed action for the LRWP would include large wind turbines located only 0.5 miles from the boundary of Minidoka NHS, which is the antithesis of “as far as possible from sensitive viewing locations” that is called for in the 2013 BMPs. Rather than tier the DEIS to a limited aspect of the 2005 PEIS (the BMPs), which BLM has not otherwise amended/incorporated into the Monument RMP, for the LRWP we recommend that BLM adopt the more current 2013 BMPs instead.

2. Chapter 2. PROPOSED ACTION AND ALTERNATIVES

A. Section 2.1 Alternatives Development Process (p. 2-1) – As described in the DEIS, “[a] range of alternatives was developed and alternatives were carried forward for detailed analysis if they: 1) met the BLM’s purpose and need, 2) were technically and economically feasible, 3) addressed the substantive issues identified in scoping, 4) reduced potential adverse environmental effects or addressed resource conflicts when compared with the proponent’s project, and 5) were consistent with management objectives outlined in BLM (1986), as amended.”

Our concern with the range of action alternatives considered is that none would successfully avoid substantial adverse effects to visual resources as seen from the perspective of Minidoka NHS, the WRC, and Native American cultural sites such as Wilson Butte Cave, regardless of whatever “mitigation measures” BLM proposes to try to lessen the relative severity of those impacts. In our scoping comments, we had recommended that BLM consider at least one action alternative in a location with adequate wind energy potential but outside of the current Project area in order to avoid conflicts with the sites mentioned above. However, it appears that BLM has not fully considered such an alternative.

B. Section 2.2 Alternative A (No Action) (p. 2-1) – Under Alternative A, the BLM would deny MVE’s application for construction, operation and maintenance, and decommissioning of the project. The project facilities would not be built, and existing land uses and present activities in the area would continue. Because all of the action alternatives would have significant, unavoidable adverse effects on visual resources surrounding historic and cultural sites such as Minidoka NHS, we fully support the selection of Alternative A (No Action). It is the only alternative that would adequately protect the landscape setting of those sites.

C. Section 2.3.3 Project Phases and Duration (p. 2-3) – As described, “[t]he EIS analysis assumes an approximate project schedule consisting of three phases: 2 years of construction, up to 30 years of operation and maintenance, and 2 years of decommissioning.” (Emphasis added) We ask BLM to explain the basis for its assumption that the wind farm would have an operational lifespan of (only) 30 years. We cannot imagine that would be the case, particularly considering the considerable investment MVE would need to make in constructing, operating, and maintaining such a massive wind farm.

Based on the proposed action, we fully expect adverse effects to cultural sites would be so long-term that they are, in effect, permanent. If BLM decides to approve the proposed wind farm in any form and is serious about limiting the duration of its operation, then we request that BLM formalize the assumed 30-year limit with a “date certain” expiration date in the ROW grant that includes only two additional years for decommissioning and removal of the wind farm. If BLM is not willing to enforce its “30-year assumption” with such a measure, then BLM should at least be transparent about the fact that the adverse effects of the wind farm are likely to last longer than 30 years.

D. Section 2.3.4 Avoidance and Minimization (p. 2-4) – This section provides a brief overview of the concept of mitigation, which is defined in the Council on Environmental Quality’s (CEQ) NEPA regulations (40 CFR 1508.1(s)) as “avoiding, minimizing, rectifying, reducing over time, or compensating for impacts of a proposed action.” In plain terms, there is a significant difference between “avoidance” (meaning “no impacts occur”) and the other levels of “mitigation” listed in the CEQ definition, all of which would allow varying degrees of adverse effects. As we will discuss later in these comments, we are very concerned that throughout the DEIS BLM focuses primarily on avoiding only physical adverse effects to protected cultural and historic sites such as Minidoka NHS, the WRC, and Wilson Butte Cave. In contrast, all action alternatives would readily allow non-physical adverse effects such as major visual intrusions and noise that would adversely affect the protected sites. Later in this letter we will comment on the proposed mitigation measures, which are described in Appendix 4 of the DEIS. 

E. Sections 2.4 thru 2.7 Alternatives B-E (pp. 2-4 thru 2-14) – All of the action alternatives, including the proposed action, would cause substantial adverse effects to Minidoka NHS, the WRC, and Native American cultural sites such as Wilson Butte Cave. While Alternatives B-E do provide a “range of alternatives,” each would result in varying degrees of adverse effects; and none of them would successfully “avoid” or effectively mitigate significant adverse effects to the aforementioned specially protected cultural sites. As a result, we strongly oppose Alternatives B-E.

F. Section 2.8.4 Alternative H (pp. 2-16 and 2-17) – As described under Alternatives Considered but Eliminated, “Alternative H was considered in order to examine an alternative that eliminates potential impacts to the visual landscape surrounding the Minidoka NHS. Alternative H considered a project layout that would only include turbine siting corridors not potentially visible from the Minidoka NHS (see Figure 2.8-1).” (Emphasis added) However, BLM dismissed this alternative from further consideration because “[t]wo of the core siting requirements, wind resource quality and access to suitable transmission, reduce the feasibility of Alternative H compared to the Proposed Action and other action alternatives.”

BLM’s decision to limit ALL of the action alternatives to the same location within close proximity of Minidoka NHS, the WRC, and Wilson Butte Cave has created an irreconcilable conflict between managing for appropriate energy development under FLMPA and conserving scenic and cultural resources and values, which is also mandated by FLMPA. As a result, the range of action alternatives presented in the DEIS is merely a list of relatively bad options that vary in the level of adverse effects they would cause. Alternative A (No Action) is the only alternative considered that would actually avoid substantial adverse effects to the cultural landscape surrounding and encompassing these sites. 

3. Chapter 3. AFFECTED ENVIRONMENT AND IMPACTS

A. Section 3.1.1 Existing and Future Trends and Actions – This comment is specifically about the SWIP-North project mentioned on DEIS p. 3-5. See General Comment #6 above. In December 2020, LS Power reported[51] that SWIP-North, approved in 1994, is “permitted but seeking cost recovery” (i.e., construction funding) and that the “project is nearly construction ready and could be online as early as June 2024.” The same report also indicated that SWIP North would provide a link to “Idaho Power Company’s interconnection queue; primarily wind, including a 1050 MW Lava Ridge wind project, being developed by [an] LS Power affiliate that is scheduled to be online in 2024.” (Emphasis added.)

The 1994 NEPA compliance for SWIP-North is undoubtedly outdated, as environmental conditions in the project area have changed significantly over the past three decades (e.g., impacts of climate change; changes in sage grouse conservation, etc.). It is clear from LS Power’s 2020 report that the primary reason the company is moving forward with that project now, with a target completion date of 2024, is because the LRWP is also anticipated to be completed by 2024.

As a result, BLM should follow its guidance in Permanent Instruction Memorandum (IM) No. 2018-023:[52]

Connected actions are those proposed Federal actions that are “closely related” and “should be discussed” in the same NEPA document (40 CFR 1508.25 (a)(1)). Proposed actions are connected if they… cannot or will not proceed unless other actions are taken previously or simultaneously (40 CFR 1508.25 (a)(1))… If the connected action is also a proposed BLM action, we recommend that you include both actions as aspects of a broader “proposal” (40 CFR 1508.23), analyzed in a single NEPA document. (Emphasis added)

We urge the BLM to defer any further planning on LRWP until it has prepared a supplemental EIS that properly evaluates the Lava Ridge Wind Project and SWIP-North as “connected actions,” which they clearly are.

B. Section 3.1.2.2 Tiering to the 2005 Programmatic Wind Environmental Impact Statement (PEIS) (p. 3-7) – See General Comment #5 and Chapter 1, Section 1.7 comment above. As described previously, BLM did NOT amend/incorporate provisions of the 2005 PEIS into the Monument RMP due to the lack of wind energy potential in the SFO. Yet BLM proposes to “adopt” just the best management practices (BMPs) from the 2005 plan while disregarding the more recent BMPs for “Reducing Visual Impacts of Renewable Energy Facilities on BLM-Administered Lands,”[53] published in 2013. For example, the 2013 BMPs recommend: “Site [alternative energy] facilities and ROWs outside of sensitive viewsheds or as far as possible from sensitive viewing locations.” (Emphasis added) However, the proposed action for the LRWP is located only 0.5 miles from the boundary of Minidoka NHS, which is the antithesis of “outside of sensitive viewsheds or as far as possible from sensitive viewing locations.” In general, BLM has not explained its rationale for adopting just the BMPs from a plan/PEIS that it did not otherwise amend or incorporate into the Monument RMP, while disregarding more recent BMPs that are specifically related to reducing visual impacts of renewable energy facilities on BLM-administered land. We recommend that BLM adopt the 2013 BMPs instead. 

C. Section 3.5.3 Minidoka War Relocation Center and Minidoka National Historic Site (pp. 3-154 thru 3-158) – See General Comment #2 above. By citing comments and concerns expressed by the Japanese American community and the National Park Service, this section of the DEIS contains a detailed description of the significance of Minidoka NHS and the importance of protecting not only its resources and values but also its isolated setting. However, p. 3-157 contains a factual inaccuracy related to the Japanese American community’s request that the area be considered a Traditional Cultural Property (TCP) under the NHPA. The DEIS states that “[t]hose Japanese Americans consulting on the project have asked that Minidoka WRC, inclusive of Minidoka NHS, be considered a TCP. As a result, the BLM is treating Minidoka WRC as a TCP, historically associated with the Japanese American communities.” (Emphasis added)

The DEIS incorrectly states the proposed TCP would be limited to the footprint of the WRC, which comprises approximately 33,000 acres of the Project area. In reality, the proposed TCP would be considerably larger than the footprint of the WRC. See Figure 25, page 40, in the TCP study.[54] As a result, we ask that BLM revise its description of the proposed TCP so that it accurately reflects the actual size of the TCP proposal as submitted. Any BLM decision about the project should be based on the corrected description, not the faulty assumption that the proposed TCP is limited to the footprint of the WRC.

D. Section 3.5.4 Programmatic Agreement (pp. 3-158 and 3-159) – Page 3-158, near the bottom, contains a misleading statement that “[t]he BLM will prioritize avoidance of adverse effects to historic properties.” (Emphasis added) As described throughout the impact analyses in Section 3.5, it is clear that BLM will only seek to “avoid” adverse physical effects to cultural resources; but not the many adverse effects that are non-physical, such as visual resource and noise impacts. For example, see Section 3.5.5.2.2 (pp. 3-167 and 3-168) regarding the impacts of Alternative B, the Proposed Action, where the DEIS states:

Alternative B was sited to avoid physical effects to Minidoka NHS and Wilson Butte Cave, which are NRHP-listed cultural resources. The nearest wind turbine would be set back over 0.5 mile from the Minidoka NHS boundary and 1.7 miles from the Minidoka NHS Visitor Center (KOP 1) in the project layout design… Alternative B siting corridors would overlap 4,818 acres (8 square miles) of Minidoka WRC, which would result in a greater potential for physical impacts to cultural resources within and associated with Minidoka WRC than Alternative C, D, or E. (Emphasis added)

Stating the obvious, while a 0.5 mile setback of multiple 740-ft tall wind turbines from the Minidoka NHS boundary may prevent physical effects within the NHS boundary, it does not “avoid” (or prevent) all adverse effects to the NHS. The proposed action, and the other action alternatives to a lesser extent, would undoubtedly result in significant, albeit non-physical, visual impacts.

We cite this information here as an example of how inaccurate BLM’s statement is about “prioritizing avoidance of adverse effects to historic properties” such as Minidoka NHS. We therefor ask that BLM revise its statement so that it accurately reflects what BLM is actually proposing to do in the DEIS, which is to avoid (only) adverse physical effects to historic properties while addressing nonphysical adverse effects to a lesser degree through some other form or level of mitigation.

E. Section 3.5.6.4 Compensatory Mitigation for Cultural Resources (p. 3-188) – As background, see General Comment #3 above. This section of the DEIS states that “[e]ven with the implementation of avoidance, minimization, and mitigation measures, residual impacts to the Japanese American community and Native American Tribes could still occur.” It goes on to include a confusing if not misleading statement regarding the applicability of compensatory mitigation under the proposed Programmatic Agreement (PA) described in Appendix 4. (The draft PA creates the impression that the compensatory mitigations measures would apply to any/all of the action alternatives.) However, p. 3-188 of the DEIS states: “The following compensatory mitigation measures could be applied to Alternative B if the BLM determines it is warranted (see EIS Appendix 4: Table App 4-5).” (Emphasis added)

The statement that “compensatory mitigation could apply only to Alternative B” is both confusing and concerning because BLM has created an expectation among the Japanese American Community and Native American Tribes that the proposed compensatory mitigation would apply regardless of which action alternative is ultimately selected. BLM should correct the wording in this section of the DEIS (or in Appendix B, if needed) to accurately reflect BLM’s intent about compensatory mitigation.

F. Section 3.6.2.4.2 Compensatory Mitigation for Dispersed Environmental Justice Populations (pp. 216-217) – This concern is similar to the above comment. With regard to the Japanese American Community, this section states that compensatory mitigation measures “could be applied to Alternative B if the BLM determines it is warranted.” With regard to Native American Tribes, this section states that “[t]he following compensatory mitigation measure could be applied to Alternative B if the BLM determines it is warranted.” (Emphasis added)

These statements that compensatory mitigation could apply only to Alternative B are both confusing and concerning because BLM has created an expectation among the Japanese American Community and Native American Tribes that the proposed compensatory mitigation would apply regardless of which action alternative is ultimately selected. BLM should correct the wording in this section of the DEIS (or in Appendix B, if needed) to accurately reflect BLM’s intent about compensatory mitigation. 

G. Section 3.16 Visual Resources (p. 3-196) – As described in the DEIS, “[t]he SFO Monument Resource Management Plan (BLM 1986b) does not establish Visual Resource Management (VRM) classes or associated management objectives for BLM public lands in the siting corridors; for this reason, conformance with BLM VRM objectives was not determined in this analysis.” (Emphasis added)

As background, see General Comment #4 above, which we will not repeat in full here. We have numerous concerns about BLM’s failure to determine the VRM class or related VRM management objectives before the Project proposal had reached its current stage of development:

• • • In principle, BLM should have prepared a baseline VRM inventory and classification assessment well before considering a project proposal of this magnitude because the VRM classification determines the landscape management objectives related to how much future development and related impacts would be appropriate. Lacking such objectives, BLM had no basis for evaluating the appropriateness of the wind project (i.e., how much development and/or VRM impacts should be allowed based on the management objectives) when it was first proposed.
    • The impact of BLM’s failure to previously establish VRM management objectives in the area surrounding Minidoka NHS is reflected in MVE’s siting decision. As described in MVE’s Plan of Development (POD) in Appendix C,[55] MVE avoided a different project location due to potential conflicts with VRM Class III visual resources and instead focused on the current project location. Absent any existing VRM Class rating or landscape management objectives for the Project area, it seems that MVE did not anticipate or was not informed of potential conflicts with the protection of visual resources surrounding Minidoka NHS.
    • In our scoping comments, we strongly recommended that “BLM and NPS hire an independent third-party consultant, such as the Argonne National Laboratory[56], to conduct such a baseline assessment and VRM classification” so that the results would appear unbiased and credible. However, BLM did not do that. Instead, based on a contractor’s study BLM has given the project area a Class IV VRM rating as indicated in Figure 3.16-4 (p. 3-407). The figure’s color-coded illustration categorizes the Project Area as Class IV, which will allow the greatest amount of development and visual resource impacts within the project area.
    • Last but not least, even lacking previously established VRM-related landscape management objectives for the Project area, allowing a massive industrial-scale wind farm in close proximity to culturally sensitive resources, such as Minidoka NHS, the WRC, and Wilson Butte Cave, is fundamentally at odds with BLM’s 2013 “Best Management Practices for Reducing Visual Impacts of Renewable Energy Facilities on BLM-Administered Lands.”[57] Specifically, Section 6.2.1, p. 141, recommends: “Site [alternative energy] facilities and ROWs outside of sensitive viewsheds or as far as possible from sensitive viewing locations.” (Emphasis added) A setback of as little as 0.5 miles from the Minidoka NHS boundary is obviously not “outside of sensitive viewsheds or as far away as possible from sensitive viewing locations.” At its current location, the Project is in direct conflict with BLM’s own 2013 BMPs for reducing visual impacts of renewable energy facilities on BLM-administered lands.

H. Subsection 3.16.1.2.2 Alternative B Visual Impacts, Key Observation Points (p. 3-413 to 3-418) – This section of the DEIS describes the “degree of visual change” from the perspective of the following viewer groups: Travelers; Tourists and Recreationists; and Residents. Notably absent from the analysis are two viewer groups with strong cultural connections to the site(s), which are the Japanese American Community which has a close connection to Minidoka NHS (KOP 1); and Native American Tribes which have a close connection to Wilson Butte Cave (KOP 10). The discussion in the “Tourists and Recreationists” section acknowledges such groups, without actually naming them, by stating: “Select sensitive viewer groups visiting Minidoka NHS may have impacts beyond the casual viewer in that they could experience the setting from a visual-cultural perspective disproportionally higher than the typical visitor.” However, despite this statement, the DEIS goes on to characterize the visual impacts only from the perspective of the typical Tourist and Recreationist, and not from the perspective of the “select sensitive viewer groups.”

As a result, this section of the DEIS comes across to the reader as if BLM has mischaracterized Minidoka survivors and descendants and/or Native Americans as being the same as “Tourists and Recreationists,” which would be inappropriate. To address this concern, we recommend that BLM describe visual impacts for an additional viewer group in the applicable sections of the analysis. The additional viewer group could be called something like “Viewers with Cultural Connections to the Site” and should include Minidoka survivors and descendants and/or Native Americans, depending on which KOP is being discussed. The added analysis should include not only a narrative description of the degree of visual impacts from the viewer groups’ perspective, but also an additional Table 3.16-x titled “Degrees of Visual Change for Viewers with Cultural Connections to the Site.”

4. APPENDIX 2. Potential Major Agency Authorities and Actions and Other Applicable Federal Laws, Regulations, and Policies – The appendix fails to include numerous significant federal statutes and guidelines that are directly applicable to the Project. The following authorities provide important context for this issue and should be included in the listing:

A. Federal Land Policy and Management Act of 1976 (FLPMA) – The Act, which is codified at 43 U.S.C. Ch. 35 § 1701 et seq., is often referred to as BLM’s “organic act,” since it provides the statutory authority for BLM to manage public lands under the principles of multiple use and sustained yield. As such, FLPMA is commonly referred to as “multiple use mandate.” Among its many provisions, FLPMA mandates the permanent federal ownership of public lands; declares that BLM will manage public lands for multiple uses and values; repealed more than 1,000 out-of-date land management statutes, replacing them with new policies, including a new planning system; changed how BLM manages minerals and grazing in public lands; and mandated new forms of preservation and protection for public lands.

Despite its emphasis on allowing multiple uses, which includes consumptive uses by commercial operators such as mining, oil and gas extraction, and grazing, at its core FLMPA is a conservation law. For example, Section 102 (a)(8) of the Act states:

“the public lands be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archeological values; that, where appropriate, will preserve and protect certain public lands in their natural condition; that will provide food and habitat for fish and wildlife and domestic animals; and that will provide for outdoor recreation and human occupancy and use.” (Emphasis added.)

B. National Park Service Organic Act of 1916, as amended[58] – In contrast to the BLM’s “multiple use mandate” under FLPMA, the NPS-managed resources at Minidoka NHS are managed and protected under a separate statutory requirement, which is the “conservation mandate” of the NPS Organic Act of 1916  and subsequent amendments. The Organic Act established the fundamental purpose of units of the National Park System, which is

to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations (54 USC § 100101(a)).

Courts have consistently interpreted the Organic Act as giving conservation priority over use such that “when there is a conflict between conserving resources and values and providing for enjoyment of them, conservation is to be predominant” (NPS Management Policies 2006 §1.4.3).

In addition, as described under General Comment #10 above, under the NPS Organic Act, as amended, the Secretary of the Interior “has an absolute duty, which is not to be compromised, to fulfill the mandate of the 1916 Act to take whatever actions and seek whatever relief as will safeguard the units of the national park system.”

C. National Environmental Policy Act of 1970 (NEPA)[59] – Congress enacted NEPA in 1970 to establish a national policy for the environment, provide for the establishment of the Council on Environmental Quality (CEQ), and for other purposes. NEPA was the first major environmental law in the United States and is often called the “Magna Carta” of Federal environmental laws. NEPA requires Federal agencies to assess the environmental effects of proposed major Federal actions and inform the public of those effects prior to making decisions.

Section 101 of NEPA sets forth a national policy “to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.” 42 U.S.C. 4331(a).

Section 102 of NEPA establishes procedural requirements, applying that national policy to proposals for major Federal actions significantly affecting the quality of the human environment by requiring Federal agencies to prepare a detailed statement on: (1) the environmental impact of the proposed action; (2) any adverse effects that cannot be avoided; (3) alternatives to the proposed action; (4) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity; and (5) any irreversible and irretrievable commitments of resources that would be involved in the proposed action. 42 U.S.C. 4332(2)(C).

Under the Act, the Council on Environmental Quality (CEQ) is responsible for developing procedures for Federal agency implementation of NEPA. CEQ’s NEPA implementing regulations are found at 40 CFR Parts 1500-1508 and 1515-1518.[60]

D. National Historic Preservation Act of 1966, as amended (NHPA)[61] – The NHPA, 16 U.S.C. 470 et seq., was enacted in 1966, then subsequently amended in 1980 and 1992. The law contains a strong policy statement supporting historic preservation activities and programs. Section 2 of the statute calls for the Federal government in partnership with States, local governments,

Title I of the statute established the National Register of Historic Places as a national listing of “historic properties”, that is, districts, sites, buildings, structures, and objects significant in American history, architecture, archeology, engineering, and culture. Title I also established State Historic Preservation Officers as partners in the national historic preservation program; and contained Section 106, which established consultation requirements and requires federal agencies to consider the effects on historic properties of any projects they carry out, approve, or fund.

Title II of the statute established the Advisory Council on Historic Preservation (ACHP). Section 106 requires that all federal agencies provide ACHP an opportunity to comment on any undertaking for which an agency has direct or indirect jurisdiction when the undertaking has an effect on a historic property listed on or eligible for listing on the National Register of Historic Places. ACHP has published regulations at 36 CFR § 800[62] that guide federal agencies and other participants in the Section 106 process.

Section 110 of the statute requires the head of each Federal agency to manage and maintain historic properties under the jurisdiction or control of the agency in a way that considers the preservation of their historic, archeological, architectural, and cultural values. These responsibilities include the identification, evaluation, nomination to the National Register of Historic Places, and protection of historic resources. In addition, historic properties not under agency jurisdiction or control but potentially affected by agency actions are to be fully considered in agency planning. (Emphasis added)

E. Endangered Species Act of 1973[63] – When Congress passed the Endangered Species Act (ESA) in 1973, it recognized that our rich natural heritage is of “esthetic, ecological, educational, recreational, and scientific value to our Nation and its people.” It further expressed concern that many of our nation’s native plants and animals were in danger of becoming extinct.

The purpose of the ESA is to protect and recover imperiled species and the ecosystems upon which they depend. It is administered by the U.S. Fish and Wildlife Service (Service) and the Commerce Department’s National Marine Fisheries Service (NMFS). The Service has primary responsibility for terrestrial and freshwater organisms, while the responsibilities of NMFS are mainly marine wildlife such as whales and anadromous fish such as salmon.

Under the ESA, species may be listed as either endangered or threatened. “Endangered” means a species is in danger of extinction throughout all or a significant portion of its range. “Threatened” means a species is likely to become endangered within the foreseeable future. All species of plants and animals, except pest insects, are eligible for listing as endangered or threatened. For the purposes of the ESA, Congress defined species to include subspecies, varieties, and, for vertebrates, distinct population segments. 

F. Civil Rights Act of 1964[64] – The Civil Rights Act of 1964 is the nation’s premier civil rights legislation. The Act outlawed discrimination on the basis of race, color, religion, sex, or national origin, required equal access to public places and employment, and enforced desegregation of schools and the right to vote. It did not end discrimination, but it did open the door to further progress. Title VI of the Civil Rights Act prohibits recipients of federal financial assistance (states, grantees, etc.) from discriminating based on race, color, or national origin in any program or activity. This section of the Civil Rights Act provides the legal basis for the concept of “environmental justice.”

Environmental justice is defined by the U.S. Environmental Protection Agency (EPA) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.”[65] Because of the history of Japanese American incarceration at Minidoka WRC, environmental justice and respect for the cultural significance of Minidoka to the Japanese American Community is a particularly relevant concern about the proposed wind farm.

G. The Civil Liberties Act of 1988 (Public Law 100-383)[66] – The Act granted limited reparations to Japanese Americans who had been incarcerated by the United States government during World War II. The limits of these reparations reinforce the importance of preserving Minidoka WRC and the remembrance of its history and the people connected to it.

H. P.L. 109-441, An Act to Provide for the Preservation of Japanese American Confinement Sites[67] – Section 1(a) of the Act provides that

The Secretary shall create a program within the National Park Service to encourage, support, recognize, and work in partnership with citizens, Federal agencies, State, local, and tribal governments, other public entities, educational institutions, and private nonprofit organizations for the purpose of identifying, researching, evaluating, interpreting, protecting, restoring, repairing, and acquiring historic confinement sites in order that present and future generations may learn and gain inspiration from these sites and that these sites will demonstrate the Nation’s commitment to equal justice under the law. (Emphasis added.)

In other words, it was the expressed intent of Congress that the Secretary of the Interior shall, among other things, identify, protect, and restore Japanese American confinement sites to “demonstrate the Nation’s commitment to equal justice under the law.” Implicit within this statement is Congress’s recognition that the Nikkei were unjustly incarcerated at sites like Minidoka; and preservation of these sites by the Department of the Interior is necessary to demonstrate the Nation’s commitment to righting that that injustice. 

I. Executive Order 13985 of January 20, 2021: Advancing Racial Equity and Support for Underserved Communities Through the Federal Government[68] – The EO directs that “the Federal Government should pursue a comprehensive approach to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality. Affirmatively advancing equity, civil rights, racial justice, and equal opportunity is the responsibility of the whole of our Government.”

J. Executive Order 14008 of January 27, 2021: Tackling the Climate Crisis at Home and Abroad[69] – EO section 207, Renewable Energy on Public Lands and in Offshore Waters, directs the Secretary of the Interior to consult with interested parties in her review of siting and permitting processes for renewable energy on public lands. Obviously, in this case the Nikkei are an interested party who must be consulted.

K. 43 CFR Part 2800[70] – Section 501 (a)(4) of FLPMA authorizes the Secretary of the Interior “to grant, issue, or renew rights-of-way . . . for generation, transmission, and distribution of electric energy.” The Secretary has delegated that authority to the BLM; and the Bureau has promulgated regulations at 43 CFR Part 2800 governing the granting such rights-of-way. Section 2804.35 describes how BLM will prioritize solar and wind applications. Specifically, § 2804.35(c) states:

(c) Low-priority applications may not be feasible to authorize. These applications may include lands that meet the following criteria:

(1) Lands near or adjacent to lands designated by Congress, the President, or the Secretary for the protection of sensitive viewsheds, resources, and values (e.g., units of the National Park System, Fish and Wildlife Service Refuge System, some National Forest System units, and the BLM National Landscape Conservation System), which may be adversely affected by development (Emphasis added)

In other words, under applicable BLM regulations, because of its location the LRWP is considered a “low-priority” project that “may not be feasible to authorize” in order to protect “sensitive viewsheds, resources and values” of a unit of the National Park System. BLM should follow its own regulations and deny MVE’s ROW application.

5. APPENDIX 4. Mitigation – Multiple tables in this appendix list numerous “applicant committed measures” that are purported to lessen the severity of the many adverse effects that would be caused by the Project. However, very few of the proposed mitigation measures actually result in the “avoidance” of adverse effects, even though “avoidance” is the most effective form of mitigation. For example, Table App4-2c lists measures #18-28 intended to reduce impacts related to “Visual Resources, Lighting, and EMF.” The measures listed are generally common sense things like turning off unneeded lights at night; and painting facilities including the giant wind turbines with dull colors and/or non-reflective finishes, rather than bright colors or highly reflective finishes. While these measures undoubtedly would reduce unnecessary exaggeration of the visibility of the wind turbines (e.g., that could otherwise be caused by unnecessary lighting or extremely colorful or highly reflective paint jobs), they would do little to actually prevent or avoid significant visual impacts due in large part to the size, number, and proximity of the turbines to affected sites. Our observation has been that there is no such thing as a paint job that will make a 500-to-700 foot tall wind turbine blend into the background scenery, especially at the inadequate setback distances proposed in each of the action alternatives. The turbines will still be readily visible, especially in an open landscape such as that surrounding Minidoka NHS.

True avoidance of visual impacts involving wind farms is primarily accomplished through siting decision(s), which is where this Project proposal falls short. BLM is considering a number of action alternatives that would allow multiple rows of very large wind turbines to be constructed in close proximity to significant historical and cultural sites.

In addition, Table App4-2j lists Applicant-Committed Mitigation Measures # 94-96 related to Cultural Resources. These include a “historic properties treatment plan (HPTP) and a paleontological resources treatment plan (PRTP) [that] would be drafted prior to construction.” It is not clear from the description which entities would be involved in the preparation and/or review of the respective plans. In addition to BLM, the National Park Service, Native American Tribes, the Japanese American Community, and the Idaho State Historic Preservation Officer (SHPO), we ask that the Advisory Council of Historic Preservation[71] (ACHP) be actively involved in the preparation and review of the respective plans. In total, the project is highly controversial and concerning because it presents so many potential threats to the preservation of historic properties and associated cultural resources within the Project area. It is essential that the programmatic agreement, treatment plans, mitigation measures, any related actions and processes developed to avoid or minimize adverse effects on historic resources are widely perceived as credible. We believe the best way to ensure credibility in this case is to have the active participation of the ACHP.

To repeat an earlier comment, the introduction to the section on Compensatory Mitigation beginning on p. App4-33 creates the impression that the potential compensatory mitigation measures listed in Table App4-5 (including measures XIV-XVI related to “environmental justice, cultural resources”) could/would apply to any/all of the action alternatives. We call your attention to our previous comments about DEIS sections 3.5.6.4 (Cultural Resources) and 3.6.3.4.2 (Environmental Justice Communities) which, in contrast to Appendix 4, state that the proposed compensatory mitigation “could be applied [only] to Alternative B.” We (again) request that BLM fix this discrepancy so that the intended application of compensatory mitigation for the Japanese American Community and Native American Tribes is clear and consistent throughout the EIS.

6. APPENDIX 9. Cultural Resources Potentially Affected by the Action Alternatives – The appendix identifies over 5,600 individual cultural “sites” that may or may not be eligible for listing on the NRHP. However, the 33,000-acre Minidoka War Relocation Center (WRC) is notably missing from the appendix. Given the well-known history of the WRC, a small portion of which was listed on the NRHP as long ago as 1979, BLM should have previously and proactively evaluated the eligibility of the entire WRC for listing on the NRHP in accordance the Secretary of the Interior’s Standards for Federal Agency Historic Preservation Programs,[72] specifically Standards 2 and 3. which state the following:

• • • Standard 2. An agency provides for the timely identification and evaluation of historic properties under agency jurisdiction or control and/or subject to effect by agency actions. (Sec. 110(a)(2)(A), and sec. 112)
    • Standard 3. An agency nominates historic properties under the agency’s jurisdiction or control to the National Register of Historic Places. . (Sec. 110(a)(2)(A)). (Emphasis added)

In addition, under Section 106 of the NHPA BLM is required to “identify historic properties within the Area of Potential Effects (APE) that may be affected by their undertakings.” [73] In this case, the undertaking is the LRWP. Yet the WRC is not on the list of potentially eligible sites identified in Appendix 9, despite the fact that the 33,000-acre WRC appears to be eligible for listing as either a “rural historic landscape,” as described in National Register Bulletin 30[74]; or as a “traditional cultural property,” as described in National Register Bulletin 38.[75] BLM should have conducted such an evaluation of the WRC as part of this planning process, if not before. See General Comment #1 above for additional information on this concern.

CLOSING COMMENTS

As described in this letter, we have multiple concerns about the proposed development of the Lava Ridge Wind Project in close proximity to Minidoka NHS and the larger Minidoka War Relocation Center (WRC). We and others believe the WRC and portions of the surrounding landscape to be eligible for listing on the National Register of Historic Places. The proposed Project, if approved, would cause significant adverse effects to visual resources that are essential components of the landscape setting for these Register-eligible properties. For the many reasons summarized in this letter, we urge BLM and the Secretary of the Interior to select Alternative A (No Action) and deny MVE’s ROW grant application.

We appreciate the opportunity to comment on this important issue.

Sincerely,

 

 

Michael B. Murray
Chair of the Executive Council
Coalition to Protect America’s National Parks

Mail:    2 Massachusetts Ave NE, Unit 77436, Washington, DC 20013

cc:
Shannon Estenoz, Assistant Secretary for Fish, Wildlife, and Parks
Tracy Stone-Manning, Director, Bureau of Land Management
Karen Kelleher, BLM Idaho State Director
Charles F. Sams III, Director National Park Service
Frank Lands, Regional Director, Regions 8, 9, 10, and 12, National Park Service
Wade Vagias, Superintendent, Minidoka NHS, National Park Service

---

[1] https://nps.gov/miin/index.htm

[2] https://www.federalregister.gov/documents/2023/01/20/2023-00646/notice-of-availability-of-the-draft-environmental-impact-statement-for-the-proposed-lava-ridge-wind

[3] https://www.nps.gov/miin/index.htm

[4] http://npshistory.com/publications/foundation-documents/miin-fd-overview.pdf

[5] https://www.sitesofconscience.org/membership/minidoka-national-historic-site/#:~:text=Minidoka%20National%20Historic%20Site%20(USA)%20%2D%20Sites%20of%20Conscience&text=Minidoka%20National%20Historic%20Site%20is,during%20the%20Second%20World%20War.

[6] https://blmwyomingvisual.anl.gov/vr-inventory/blm/index.cfm

[7] https://www.blm.gov/programs/energy-and-minerals/renewable-energy/strategy/idaho

[8] https://www.congress.gov/109/plaws/publ441/PLAW-109publ441.pdf

[9] https://www.justice.gov/enrd/nps-organic-act

[10] 16 U.S.C. §470h–2.

[11] https://www.ntc.blm.gov/krc/uploads/646/Summary_of_NHPA.pdf

[12] https://www.govinfo.gov/content/pkg/FR-1998-04-24/pdf/98-10972.pdf

[13] https://www.achp.gov/sites/default/files/guidance/2018-05/reasonable_good_faith_identification.pdf

[14] https://www.nps.gov/subjects/nationalregister/upload/NRB30-Complete.pdf

[15] https://www.nps.gov/subjects/nationalregister/upload/NRB38-Completeweb.pdf

[16] https://www.nps.gov/parkhistory/online_books/internment/reporta6.htm

[17] https://history.idaho.gov/wp-content/uploads/2018/09/Minidoka_Relocation_Center_79000791.pdf

[18] http://npshistory.com/publications/foundation-documents/miin-fd-overview.pdf

[19] https://drive.google.com/file/d/17yO6qqYHX-YN1r6_RyT8ARzJPvkWln_K/view

[20] https://www.minidoka.org/

[21] https://eplanning.blm.gov/public_projects/lup/36121/42518/45285/monumentRMP_ok.pdf

[22] https://blmwyomingvisual.anl.gov/vr-inventory/blm/index.cfm

[23] https://eplanning.blm.gov/public_projects/lup/36121/42518/45285/monumentRMP_ok.pdf

[24]https://eplanning.blm.gov/public_projects/2013782/200493266/20072212/250078394/LavaRidgeWind_VisualTechnicalReport_508.pdf

[25] https://blmwyomingvisual.anl.gov/docs/BLM_VRI_H-8410.pdf

[26] https://protectnps.org/2021/10/20/comments-regarding-the-proposed-lava-ridge-wind-project/

[27] Ibid.

[28] Ibid.

[29] https://blmwyomingvisual.anl.gov/vr-mgmt/blm/

[30] https://blmwyomingvisual.anl.gov/docs/IM_2009-043_BLMWindEnergyDevelopmentPolicy.pdf

[31] https://eplanning.blm.gov/eplanning-ui/project/2013782/570

[32]https://eplanning.blm.gov/public_projects/2013782/200493266/20072051/250078233/Lava_Ridge_DEIS_V2a_App1_POD_(1%20of%202).pdf

[33] https://blmwyomingvisual.anl.gov/docs/WindVITD.pdf

[34]https://www.blm.gov/sites/default/files/documents/files/Library_BMP_Reducing_Visual_Impacts_Renewable_Energy.pdf

[35] https://windexchange.energy.gov/maps-data/34

[36] https://windeis.anl.gov/documents/fpeis/

[37] https://docs.cpuc.ca.gov/PublishedDocs/Efile/G000/M353/K226/353226801.PDF

[38] https://eerscmap.usgs.gov/uswtdb/viewer/#7/42.564/-113.716

[39] https://www.blm.gov/policy/pim-2018-023

[40] https://www.blm.gov/programs/energy-and-minerals/renewable-energy/strategy/idaho

[41] https://solareis.anl.gov/documents/fpeis/

[42] https://www.blm.gov/idaho-renewable-energy-strategy-faqs

[43] https://www.congress.gov/109/plaws/publ441/PLAW-109publ441.pdf

[44] https://www.nps.gov/miin/learn/historyculture/building-a-prison-camp-in-the-high-desert.htm

[45] https://www.justice.gov/enrd/nps-organic-act

[46] S. Rep. No. 95-528, 95th Congress, 1st Session at 13-14 (1977)

[47] H. Rep. No.95-581, 95th Congress, 2nd Session at 21. (1978)

[48] https://legislature.idaho.gov/statutesrules/idstat/Title61/T61CH1/SECT61-118/

[49] https://legislature.idaho.gov/statutesrules/idstat/Title61/T61CH1/SECT61-129/

[50]https://www.blm.gov/sites/default/files/documents/files/Library_BMP_Reducing_Visual_Impacts_Renewable_Energy.pdf

[51] https://docs.cpuc.ca.gov/PublishedDocs/Efile/G000/M353/K226/353226801.PDF

[52] https://www.blm.gov/policy/pim-2018-023

[53]https://www.blm.gov/sites/default/files/documents/files/Library_BMP_Reducing_Visual_Impacts_Renewable_Energy.pdf

[54] https://drive.google.com/file/d/17yO6qqYHX-YN1r6_RyT8ARzJPvkWln_K/view

[55]https://eplanning.blm.gov/public_projects/2013782/200493266/20072051/250078233/Lava_Ridge_DEIS_V2a_App1_POD_(1%20of%202).pdf

[56] Ibid.

[57]https://www.blm.gov/sites/default/files/documents/files/Library_BMP_Reducing_Visual_Impacts_Renewable_Energy.pdf

[58] https://www.govinfo.gov/content/pkg/COMPS-1725/pdf/COMPS-1725.pdf

[59] https://ceq.doe.gov/index.html

[60] https://www.govinfo.gov/content/pkg/FR-2020-07-16/pdf/2020-15179.pdf

[61] https://www.achp.gov/sites/default/files/2018-06/nhpa.pdf

[62] https://www.achp.gov/sites/default/files/regulations/2017-02/regs-rev04.pdf

[63] https://www.fws.gov/endangered/esa-library/pdf/ESAall.pdf

[64] https://www.govinfo.gov/content/pkg/STATUTE-78/pdf/STATUTE-78-Pg241.pdf

[65] https://www.epa.gov/environmentaljustice

[66] https://www.govinfo.gov/content/pkg/STATUTE-102/pdf/STATUTE-102-Pg903.pdf

[67] https://www.congress.gov/109/plaws/publ441/PLAW-109publ441.pdf

[68] https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-advancing-racial-equity-and-support-for-underserved-communities-through-the-federal-government/

[69] https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/27/executive-order-on-tackling-the-climate-crisis-at-home-and-abroad/

[70] https://www.govinfo.gov/content/pkg/CFR-1998-title43-vol2/pdf/CFR-1998-title43-vol2-part2800.pdf

[71] https://www.achp.gov/

[72] https://www.govinfo.gov/content/pkg/FR-1998-04-24/pdf/98-10972.pdf

[73] https://www.achp.gov/sites/default/files/guidance/2018-05/reasonable_good_faith_identification.pdf

[74] https://www.nps.gov/subjects/nationalregister/upload/NRB30-Complete.pdf

[75] https://www.nps.gov/subjects/nationalregister/upload/NRB38-Completeweb.pdf