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Resources:

⁠How to Participate in Rulemaking⁠

⁠National Environmental Policy Act⁠ (NEPA)

⁠Administrative Procedures Act (APA)

Transcript

Speaker 1 (00:00)
Okay, welcome back Kirk to the In the Wasatch podcast. We’re so happy that you’re back. And we had a previous episode with you about NEPA. Would you mind giving us like a brief introduction about yourself and also kind of we can talk a little bit about what we talked about last time.

Speaker 2 (00:16)
Okay, so first of all, we’re recording on Earth Day, so happy Earth Day. I do remember the first one in 1970.

Speaker 1 (00:21)
Happy Earth Day!

What? Wow!

Speaker 2 (00:28)
And I’ve also been involved with our topic, which is public comments since about 78, when I was employed by the Forest Service to evaluate public comments. I don’t think I’d even written one myself at that point, but, and the review of the comments were treated a little bit differently. We’ve become more sophisticated because they weren’t required for NEPA until 1970.

Although the project I worked on was the roadless area view and evaluation part two for the forest service. So our issue wasn’t NEPA. Our issue was wilderness. So the comments are a little bit different, but back then we recorded comments even about ⁓ aesthetic appreciation, scenic beauty, and we had categories for those.

They counted a little more than we insist on slightly different style types of comments now. We want to hear those. I don’t work for the Forest Service anymore. So I’m going to still say we. ⁓ Now we’re looking usually for a little more, they get called substantive comments, ⁓ which we’ll go into pretty deeply here. But I also want to make sure that it isn’t just NEPA that we’re talking about. We’ll certainly.

Speaker 1 (01:33)
Yeah.

Speaker 2 (01:49)
talk about NEPA quite a bit and the comments there, but there are all kinds of projects that require public comments. And I’ll even give you a little bit of history on why we have these public comment periods. So that’s not new in history, but also to remember that public comments are meant to improve the project. A lot of people use them to just get digs at the agency and that’s not helpful.

⁓ Keep in mind that you are commenting to make it a better project.

Speaker 1 (02:23)
Right.

Speaker 2 (02:27)
Yeah, keep…

Speaker 1 (02:30)
Yeah, we have a lot to unpack here. Yeah. We have so much information. It sounds like you have a lot of history and different ⁓ information that you can give about ⁓ comment periods, which is our topic today. And the previous episode that Kirk and I went over was about NEPA. And so we’re using this next episode to kind of connect how everything is with NEPA and connecting it to public comment periods because they are so crucial when it comes to EIS processes and how to.

effectively ⁓ go or make sure that people are going through the NEPID process accordingly and also give ⁓ public comment about what they’re missing. ⁓ And so this episode, let’s, ⁓ what’s like a brief, if you can just go over what is a comment period? Like what is like, if you’re just getting a brief description about what it is, like for people who don’t know, what would you say it is?

Speaker 2 (03:26)
there is a public comment period for a lot of projects for a lot of different agencies. ⁓ I focus on land management agencies. ⁓ so Forest Service, Park Service, BLM. ⁓ but the, the requirements out of the Administrative Procedures Act is much, much broader into areas. have no idea about the comment period for a federal prison. Okay.

Speaker 1 (03:51)
Yeah.

Speaker 2 (03:51)
They tend to be time limited. They might be as short as 15 days on a project that actually doesn’t require public comment. Most of them are 30, 45 day comment periods. Occasionally they’re even 90 days. When the BLM released six regional management plans within a few weeks of each other, those are in the thousands of pages. And if one person is to comment on six, you just can’t do that in 30 days and have a life.

Speaker 1 (04:21)
Yeah, totally.

Speaker 2 (04:23)
So some of those got pushed to 90 days, but generally they are time bound.

Speaker 1 (04:28)
Okay, and so public common periods aren’t just concealed to just one area or ⁓ obviously land management like what we’re talking about today, which is going to be our emphasis on today’s topic obviously, but it sounds like it also goes into other federal and state procedures when it comes to… ⁓ it’s only federal.

Speaker 2 (04:45)
The

law is federal. States can do it. They do sometimes. They don’t have to unless they are taking federal money, they require a federal permit, then they may end up in the NEPA realm. Even though if a state is doing a state project on state money, they do not have an administrative procedures act, which I’ll explain, which is what’s really behind public comments. So states…

may or may not. people are so accustomed to them that states often do just mimicking the federal requirement because the public is so accustomed, which is great.

Speaker 1 (05:16)
Okay.

Yeah, it’s great. People can get used to it and get comfortable with proceeding in the public comment periods. ⁓ Well, I know that you have some information that you wanted to share with us and kind of have an outline. Would you like to… ⁓ You can go ahead. Sure.

Speaker 2 (05:44)
And it fits right along with what we’re talking about. So stop me and ask questions at any time. ⁓ Other examples besides NEPA when the public lands rule was being considered ⁓ by Biden, there was probably a 45 day public comment period on that. ⁓ The roadless rule years ago, electric bikes on our federal lands had a comment period before the forest service made a decision on that.

There was the, the waters of the U S rule called WOTUS, a big public comment period on that too. So it isn’t just NEPA, but they are federal projects or have require federal money or federal permits. Then they’re more likely to. ⁓ People always ask, how do I hear about these things? And you do need to be connected in some way to the type of

Organizations that watch dog the government. So ⁓ if so much of what I do is federal lands, so you will have organizations, whether it’s save our canyons or the Sierra club. You generally don’t have to join them. You can just sign up for their newsletters. Otherwise you got to be watching the papers and the papers miss a lot of stuff. So the more places you can get connected with other advocacy groups and either join them.

or at least learn from them and then do all of your own independent work. Also, don’t forget that you can keep making comments during that whole period. If something new occurs to you, write a new paragraph and add it to the comments. It doesn’t have to be all self-contained. So that’s kind of a nice thing. Let’s see, we did talk about substantive. ⁓

Questions. let me sidetrack just a moment here. Yeah. Because another place that comments happen are in these town meetings ⁓ that many agencies have. And you have to be really aware that you’re not being recorded there. So any comments you make, a lot of them have you write comments on sticky notes, but they’re anonymous, you know, unless your name and your address is on them.

So those are wonderful things to attend. They’re great places to ask questions, but always go home and sit down at a computer, write your comments, and turn them into the ⁓ managing agency in the right place. So be careful because people forget or are unaware that they’re not truly being recorded, the comments that they make.

Speaker 1 (08:32)
So

it would probably be helpful to take notes during the If you are going to attend the meetings, take notes and come up with different components that you would want to put in your public comment. Absolutely.

Speaker 2 (08:43)
Walk around with a clipboard because they tend to have little stations that you stop at and there’s a table, there may be a display. It’s been changing. It used to be all people standing up and talking and those turned into fights. So they now diffuse it quite a bit by having little stations. ⁓ Information stations. They’re very, very helpful if you’re new to a project to go and learn. ⁓

So don’t miss those, just recognize that you need to get your comments into the what’s called the administrative record. So do watch out for that. You can include questions. you aren’t always giving facts. You can also ask questions. are sub.

Especially with NEPA, they’re required to answer every comment you make, have a reply to it. They will lump comments together. And if everybody is asking about one, say an endangered species, they’ll only answer at once. And then they’ll give you, you know, we answer that on page 18, set paragraph, this and that, and they’ll give it a number and you’ll get that next to your question.

Speaker 1 (09:57)
that’s nice. Then you can reference that later.

Speaker 2 (09:59)
Yes, ⁓ do always check those. I have sent in comments and received back those numbers and not a single one actually applied to my question.

Speaker 1 (10:11)
okay. Yeah.

Speaker 2 (10:14)
That’s a deep topic.

Speaker 1 (10:16)
I’m sure, I’m sure then afterwards you’re confused about why would you give me this number? Like why would you miss… This doesn’t answer my question at all. ⁓

Speaker 2 (10:28)
We’re in a lawsuit over that. We’ll try to not go there too much. ⁓ Let’s see. ⁓ Other things about your comments, ⁓ that they are well organized, ⁓ that they’re polite. I always thank them at the beginning. I do have a number of comments about comments coming up. ⁓

And I do want to warn anyone listening that we are about to join Alice in the rabbit hole. There is going to be a fair bit of detail that there’s no way you can get in just one sitting, but these are recorded. can play them back. ⁓ and, but before we go to that detail, I want to say absolutely write your comments. Even if it’s just off the cuff, you’ve forgotten everything that we talk about today.

get those comments in, some of it’s going to be useful. All we’re doing today is trying to help you make them even more useful. That’s the big project today is writing better comments. Exactly. if you forget everything, still write your comments. Some of it’s going to be very helpful.

Speaker 1 (11:39)
Yeah, and like Kirk is saying you can always re-listen to this episode. It’ll always be available. So feel free to listen to this, maybe take some notes, think about what you want to improve on with your comment period like that you’re watching currently and then if you forget everything watch it, listen to it again and ⁓ then you can kind of improve over time and that’ll make a big difference.

Speaker 2 (12:02)
Yes, I do want to go into the history of how we got a government to allow us to be a democracy from the bottom up and not just from the top down. So the, the act of Congress is called the Administrative Procedures Act of 1946. So think about that date. We are coming off a depression because we have energized our commerce.

because we are coming off a war and we are coming off a war, World War II to end fascism, Nazism and autocracy in Europe. And we’re looking at how do we not have that happen to us here? And one of the ways is to bring in the public to have a say in every, not every, but the major agency decisions. So the agencies are in the executive.

department and the judicial creates them ⁓ and then they’re administered under the executive departments. And what this administrative procedures act does is it’s often referred to as a citizen’s bill of rights addressing agencies within our government. These are rights that are being stomped on at the moment.

We are losing comment periods because of declaring emergencies that don’t exist, but under an emergency, the public comments get cut off. So we do have to watch that the APA is respected ⁓ and that we get our comments. So what the APA requires of agencies for the most part is that they’re required.

to give public notice of what they’re doing. And they are required to explain their procedures and their rules of how they’re going to go about it. And they’re required under APA to create comment periods so that we run democracy not just the day we voted, there are only a few of those a year, but this is to run from the bottom up and be able to give comments that must be answered, addressed.

It doesn’t mean that you’re going to change their opinion, they have to at least, okay, they’ve now been informed about this piece of information that you’ve passed on. ⁓ The other part of APA that we always try to avoid is it does give the rules for adjudication for when a citizen, I mean, this is pretty unique. This law is one of the things that supports ⁓ citizens to be able to ⁓

sue a sovereign government. You can’t do that everywhere. And this is part of coming off the authoritarianism in Europe in World War II, saying that we are going to not just be told from the top, that they have to be able to explain what they’re doing, when they’re doing it, what the rules are for citizens to apply. And then

If there’s still a failure of following procedures as described, citizens can sue a sovereign government. That’s just wild. So what a law that we have going here. So yeah, anytime you want, look up the Administrative Procedures Act of 1946. It’s actually a fun read. Well, if you’re a nerd.

Speaker 1 (15:51)
It sounds like it’s so crucial though to our the foundation of like how our government has been since then and also like how we operate with on a federal level and also making sure that the public always has a say.

Speaker 2 (16:05)
Yes, that we think NEPA is the best rule ever, but NEPA couldn’t exist without the APA. NEPA has very few teeth. APA has teeth. ⁓ that.

Speaker 1 (16:17)
Right.

Do you think that that’s because it’s not just surrounding the environment? I know that with NEPA, it’s more of how the land is being affected and resources, but with the APA, it’s because it has a broader scope, do you think?

Speaker 2 (16:35)
It’s kind of that, but it’s also their purpose. Okay. The purpose of the APA was to regulate agencies and bring the public in and to give the public a judicial review, allow a judicial review initiated by the public. NEPA gives all the processes that have to happen, but it doesn’t have that rule that says you can now sue us. So because it’s already covered, it was covered in 46. So since then, very, here’s where I’m an historian and not an attorney.

So I’m not going to get all of your answers, they shoot lost your question.

Speaker 1 (17:12)
⁓ the broader scope. ⁓

Speaker 2 (17:15)
Yes, the comparison of the two, their purposes are different and APA is meant to apply to NEPA and other laws that came after it. So it’s not two sets of teeth, only one set of teeth. That’s not an attorney term. Anyway. And in APA, does say that things we’ve already said that all of your comments have to make it into the administrative record ⁓ to count.

Speaker 1 (17:30)
Yes!

Speaker 2 (17:44)
and you cannot litigate until the agency has its final rule. So you can keep commenting throughout the whole process. And EIS has multiple periods for public comments. ⁓ You cannot litigate until they say, OK, here’s our final decision. And that goes in the record, and then you can, if you have the money, you could sue.

The ideal is, and most of the time, you work through the issues before our final decision. Not that many decisions by the Forest Service or the Park Service are litigated, but some are. And we have a pattern, we have a legal right under the APA.

Let me jump to a question I get asked quite often. And that’s, what is a substantive comment? And I won’t have all the perfect words for you, but I can help you. And remember I started by saying, we even recorded that the scenery was beautiful. Still say that. Okay. ⁓

But we’re really looking under substantive comments are content and procedure. So procedure would be, they follow the requirements of whatever they’re operating under? And NEPA is what I’m most familiar with. So NEPA has a bunch of steps that have to be followed. Did they skip some? And it’s not just steps. And also they’re interested in comment. Honestly.

The people I know who work on NEPA for the different agencies, including UDOT, who’s operating under the Federal Highway, they can’t do NEPA themselves. They’re a state agency. They have to do it under the Federal Highway.

Most of them are really honest people who really do want to make a better product. So you do want to bring them information about the impacts that are happening on the site or that you think will happen that they might not have thought about. And then the other half are the procedural comments that I already mentioned. Are they following the process and the procedures of the law?

Speaker 1 (20:15)
Would you say those are like the main two components then to like take into consideration? Yeah

Speaker 2 (20:21)
Those, those are the broad categories and they certainly overlap. but, but in, my mind, I’m thinking, okay, is I’m thinking about the impacts. How, how are they, what, what the project is they’re called an action or a project. What, what are they going to do to my environment? And it’s the whole human environment. It’s not just the.

It’s not just the plants and animals and water, but it’s also affects on the human environment. ⁓ So it can be about how it affects you. And then the other, do have to know the procedure. So if it’s about the wilderness act, you need to know the requirements of the wilderness act. And then you can make comments of, but there really is a road there. So it can’t be wilderness unless that road is rehabilitated. ⁓ So, so that’s just, just one simple.

bit exaggerated example. ⁓ And I will get to some more as we go down the list. I’m also thinking about how you write the letter or the comments matters. A majority of the time you’re given a tiny little window to write your comments into on an electronic form. So you’re going to be writing all your comments in Word first.

Well, okay, I do. ⁓ Cause mine might run into 16 pages. ⁓ If it’s something that I know a lot about and, decide that that’s what I want to do. So just thinking about the structure, I introduced myself. think thank them for the opportunity. If it ties to my job, I will list that I am that person under that job. If I am ⁓ a member of a council.

or a committee, will list that right at the top. So they know when they start reading a little bit about my background. It’s just really short, just a couple of lines there. And then I also, because it matters later, let them know that this is a place that I go to and this will have impacts on my life ⁓ in my world. And I will just very, very quickly say how I might be harmed.

And it’s interesting because since 1972, you can even say your aesthetic experience will be changed, your recreation will be changed, and those are considered harms. So up until then, it had to be not a personal emotional harm, but it had to be a physical harm to the environment. So now it can be a harm to you as an individual.

That’s good to just get that out there right up front. The first little bit is going to be an introduction about you. and you have to make a connection that you have, you use that area and that there will be a harm to you. So, then you probably most of what I write is about a harm to the area and whether they follow a procedure or not. But I do like to get that, that personal part, ⁓ up there first.

⁓ because that would really require it. That’s one of the first things a judge is going to ask you. So, cause you do have to have a connection and you do have to have a personal arm, ⁓ or you can’t be in there. Okay. ⁓ continuing on thinking about writing it, do organize carefully. keep your reader in mind. You know what you’re thinking. You need to think about this as a third person reading it. Cause you’re likely to skip over things cause you know them.

overwrite, let them know. So ⁓ do think about your reader. One of the things that’s going to really help your reader is to organize with titles and subtitles. When you put a letter, a word document, copy and paste it in there, it will almost always get rid of your spacing. So I triple space between a lot of stuff and then it comes out as a single.

And every, every program is different, but they tend to really munch your letter and nobody wants to read a one paragraph, 16 page, one paragraph. So usually bolds don’t carry across either. So the formatting is, is really limited. So I do organize, I will hold an all caps that seems to hang. So if I want to say that this is, ⁓

about the purpose and need statement, I will put that in all caps and then triple space and answer that in a paragraph or two. So do think about what it’s going to look like. Additionally, if it’s more than a page, there’s usually a place to submit whole letters and then they might get, not might, if I’ve written 16 pages, they’re going to get a 16 page letter in addition to my putting them in the comment spot.

That’s not required, that’s my own hang up. But I’m gonna do it both ways. ⁓

The advantage of subtitles is that your reader can then jump around and find, ⁓ they made this comment. What was it under? Okay, I remember it’s under this. And then they can jump 10 paragraphs, two pages earlier and find that subtitle. So, okay, that’s also comes from teaching college. So I do write it the way I expect my students to write papers to me.

Speaker 1 (26:04)
Yeah.

Speaker 2 (26:14)
Let’s see, we did already do NEPA as a blog, but a real quick review of NEPA’s, there are three levels. They’re categorical exclusions. These are things, small projects that ⁓ the Forest Service or the Park Service has done before. There’s a record of the impacts and they will refer back to that and say, in the past there’s never been a significant impact. This is so similar. We’re just going to do a categorical exclusion.

Boy around Salt Lake, even let people public comment on those just because they know we have a really active population, but it’s not required by law. ⁓ If they think it’s bigger than that, that there’s a chance they need an EIS, they’ll start what’s called an environmental assessment, which is a much bigger project that could still turn into a hundred pages. Because part of it’s describing the project. isn’t the environmental review isn’t a hundred pages.

But because they get combined, the design of the project and the engineering of it are in there too. ⁓ And being evaluated at the same time, we’re going to build this bridge over this creek. So we’ve got to describe the bridge. then anyway, those, they sound big, but they’re not. And again, the public doesn’t, they don’t have to give the public a comment on those. But.

They are searching for is this a significant, will this have a significant impact, significant or major impact on the human environment? And if the answer at the end of that study is yes, then they have to move to the bigger environmental impact statement, which I think we went over enough the other time. And that has multiple public comment periods ⁓ early on in the middle during to review the draft. And then you can comment on the final.

before they file a record of decision. So that’s NEPA, that’s mostly covered before, but that’s probably the type of project that you’ll be commenting on the most.

Speaker 1 (28:18)
you

⁓ And I wanted to quickly ask you, I that we’re going to talk a lot about how to write your best comment. What are some common mistakes that people make when it comes to writing in the comment period?

Speaker 2 (28:35)
getting angry that has no value. So that’s a common mistake. ⁓ And then,

treating them poorly. Some comments are essentially yelling and that’s not out. Why would you want to read that and take it seriously enough to answer? So do think about your reader. Some comments just wander and we start learning about the Jeep ride that they took and then they got a flat tire and that’s interesting to read comments. Some are just

don’t have a positive thing to say. mean, yes, you do have to talk about the negatives. This will harm this, this will harm this. But if you can also say, here’s a potential solution. Have you looked at this? Have you looked at that? Have you evaluated this? ⁓ And then, so yeah, they need to be more thoughtful. And that’s, not everybody has the time. And I’m saying even go ahead and write a so-so comment rather than not write.

So. ⁓

Speaker 1 (29:46)
Do the amount of comments make a difference when it comes to? ⁓ doesn’t. OK.

Speaker 2 (29:52)
it is the content of the comments that matters. It’s not a vote that you’ll hear that phrase all the time saying, I don’t want this project. It is a mistake. You have not told them why you haven’t told them, anything that will improve it. You haven’t told them what they haven’t done yet that they need to do. So yeah, just saying, I don’t want this project.

Go ahead and write it. There are times when they all get tallied, not by the agency, but by the local organizations. And they’ll say, there were 900 comments that just said no. And that’s not helpful, but it is a notice to the everyone else that there are a lot of people who say no. So as far as the actual EIS, it’s not helpful. As far as letting the public know, go ahead, write those comments.

⁓ They just won’t change anything.

Speaker 1 (30:54)
Yeah, it doesn’t make a significant difference ⁓ in comparison to writing a very thoughtful comment ⁓ with structure and with also consciousness on like who your reader is and being also kind, but also pointing out what there might be missing.

Speaker 2 (31:13)
Yeah, so that leads us to some things that you should be careful about. But let’s also understand the Administrative Procedures Act and what the judicial standards are, because it will help you write your comments. So an agency is not allowed to be, these are some of the words out of the APA, arbitrary and capricious. I’m not allowed to grade students in an arbitrary and capricious way. I can’t just throw papers down and say the ones that went the farthest get the highest grade.

Okay, that would be arbitrary and capricious. ⁓ For an agency study, they must show supporting documentation. So they can’t just say we are doing this. They must say we are going to have an effect on the environment. We are bringing shovels. ⁓ It will be disturbed ground. ⁓ And we have studied that

a bunch of things. So, and we’ll get to those. I’ve got a list coming up. ⁓ So, I frequently write in my comments that your decision here is arbitrary. I do not see any documentation. Please show me the data on this. Right. Show me your study. ⁓ Reference it so I can look it up. Otherwise, I say this is arbitrary. You have not given any reason for this piece of the decision.

⁓ So the APA has the phrase supported by substantial evidence, which is what you can ask for. It says the decision has to be warranted by the facts. So that’s just re-emphasizing it. It’s part of the wording in the APA says an agency may not abuse its discretion. So everybody knows you’re not going to have every fact you want. So if there will be parts of a decision that don’t have perfect

data behind it, but you must be able to answer to a judge or the public ⁓ that you haven’t abused your discretion, that a reasonable person is a legal term, that a reasonable person with your same position would make, that that could be one of their decisions. It doesn’t say that everybody would agree, but that a reasonable person could look at this.

And say, that’s a reasonable solution. And it’s not just someone off the street. It would be someone else who had been in that type of work for a long time. Okay. And the courts have added after taking a hard look. So what a fun phrase. It’s not a real academic phrase, but I think we understand that a hard look is not casual. That there is some substance behind their decision.

Also, anything that they decide, this won’t surprise you at all, that any decision about an action has to be in accordance with the law. And there they’re saying all laws. So it could be the Endangered Species Act. If you find a violation of the Endangered Species Act, that’s really helpful in the comments. The Clean Water Act, any local health laws, and get to know if it’s a Forest Service Project, really get to know the Forest Plan, BLM.

We’ll have regional management plans. The park service has a general management plan for each park. Get to know those because they cannot be in violation of those either. So either the forest plan or one of these general management plans has to be modified to allow a project or it must be in compliance with them. So, yeah, it means doing your homework. It’s, it’s hard to make substantive comments.

And you can always ask the agency to show you their data and ask you where their database comes from, because they don’t always know. So they might go to HawkWatch. They might go to Utah Native Plants. And if you know a better database or you have information that HawkWatch didn’t have, that’s really important substantive comment. ⁓

Yeah, I’ve got a couple of examples ⁓ right here. So what you’re usually commenting on on these substantive comments are the impacts that are likely to happen. ⁓

If you know, if there, if you’ve seen bald or golden eagles there, if you know that they’re nesting, there is a law that I don’t remember the name, about bald and golden eagles. They are, there are only two eagles. They’re quite rare. They’re top of the food chain. So they’re affected first. ⁓ owls and other raptors are also likely to be endangered because they’re top of the food chain too. So that’s where they’re like the canary in the mine where we pick that up.

So understanding those other laws really matter and you can bring that up. Endangered species in the area, the Utah native heritage, I can’t think of their name, keeps a record of the endangered species and make sure they’ve been consulted and make sure that, you know, ask who was your botanist who went out.

looking on what dates and you read that the date is, you know, April and you go, well, that plant doesn’t come up until June. ⁓ so yeah, there, there are, that’s substantive in there, in your comments to find those things.

Speaker 1 (37:07)
Can I quickly ask you? So you’re saying that you can ask for data, you can ask for more information about these topics that you have concerns about. Would you include that in a comment period or can you reach out to someone directly or what does that look like and how soon would you receive a response?

Speaker 2 (37:25)
You will not directly receive a response. It will be in a document that they will say. However, if you…

Some projects, if you are concerned, you just go in the office and you say, I would like to talk to this person and set up an appointment. And if they don’t feel like you’re being frivolous, that you really have something, ⁓ I have not been turned down. And sometimes it’s just exchanges by email. I rarely meet them in person, but occasionally.

But sometimes outside of what’s required by the APA, these are real people doing the projects. We forget that. We just think it’s a government machine, but it’s not, it’s real people. So you can sometimes have real people conversations. ⁓ so not give it a try outside of the official comment period.

You know there’s a project happening up the canyons. You know it’s being run by the Forest Service. The Forest Service is so understaffed right now, but you still might be able to get some email exchange with them. So yes, there is a little bit outside of the official window, which is a fairly impersonal

Speaker 1 (39:02)
Yeah, I’m sure there’s a lot of people who have felt kind of disconnected from the personal component of commenting and meeting with people and trying to figure out different solutions and also expressing their concerns and what harm is going to potentially happen or ⁓ what if there’s any violations or like what you’re saying, there’s missing components that they’re not saying.

Speaker 2 (39:27)
And the people who do get the appointments are typically an organization. So around here, whether it’s Save Our Canyons or Southern Utah Wilderness Alliance, their representatives are more likely to get those conversations. So sometimes you work through them. And a lot of these become community projects. It isn’t just the agency in a tower.

Speaker 1 (39:47)
Right.

Speaker 2 (39:57)
that they really do have people out there on the ground. Doesn’t always feel like it though.

Let’s see, I had some other impacts that you want to know about. So we did talk about plants and animals of concern. ⁓ Old mines and mine tailings are a problem on our public lands. So you have to ask if there’s going to be any ⁓ impacts on, are they going to be building this project right through an old tailing, an old dump?

What are they planning to stabilize ⁓ on those? ⁓ We can ask them about their traffic flow studies. ⁓ And we think of that as people and as cars. It can be skiers. It depends on what the project is. ⁓ But we do want to understand if you make this project, if you create this thing,

How are people going to access it and how will they come and go? Because it’s not just that site, but it’s whatever else that site causes. So if you are essentially building a bigger parking lot at the trailhead, you’re not to just evaluate the trailhead. You’re also now required to evaluate, ⁓ where are those people going to go and what will their new impacts be? So we are allowed to look at connected, foreseeable.

⁓ and similar projects. So yeah, let that, those are things that you should be evaluating yourself. Things that, what have you seen? if you’ve seen trails that are in bad shape, that are going to be affected, you want to say, are you going to move that trail? So you can look a little bit farther away than the exact spot. you, we could.

Here in the Wasatch, we could really use an inventory of vegetation loss around recreation sites. So you think of Lake Mary and how much vegetation is lost there. You think of any of the passes, the places where people collect, any viewpoint, what’s the vegetation loss at those, ask them what their standards are for area evaluations and trail evaluation.

We want to be looking at any historic sites, which really is anything over 50 years old. So are they aware that this used to be a site of something? I was talking to you earlier that I’m going to be going out to a grave site and evaluating that in June. ⁓ So it’s something they just recently learned about. ⁓

I can think of a bunch of others, but let’s keep going. So any prehistoric or historic sites, are there designations in the area? You can ask what tribes or first nations have been consulted. ⁓ You can ask about timber harvest. If the project is to build a road, what’s the purpose of the road? Is it for more timber? ⁓ Travel plans are very important.

Does this fit with the travel plan that’s already written? Or is that going to have to be modified? Things that you might not think about but are in Forest Service plans is a thing called Viewshed. And they’re ranked from one to five, I think. And I can’t remember which order. But I think ones are the, I could have it backwards, at one end are areas where the view is very, very natural.

And then maybe the next level is whatever constructions of man tend to flow with the topography and are from most places, unnoticeable where an awful lot of the road in Little Cottonwood, especially, I think Big Cottonwood, the road is just obvious. But in Little Cottonwood, if you’re looking up that long Canyon, you don’t see the road much or the road cut. You’re usually a little below it. ⁓ So that’s.

part of the view shed and it meets the requirement that the Forest Service has for that part of the canyon. ⁓ They have ranked it to stay at that view shed level, whether that’s a two or a four. ⁓ So will the project change the view shed and does the forest allow that according to the forest plan or not? So that’s just one more thing to be looking at. Soundscapes are becoming more important.

Is this going to create a lot of noise? And there are rankings on what the sound ⁓ should be, decibel levels. And if they can’t show you the studies, then you’re saying, well, this is arbitrary. And anyone reading one of your comments and it says arbitrary, go, wait a minute, this person knows APA.

Speaker 1 (45:13)
Right, so the flag goes up and they say, ⁓ we need to review this. Wow, so people need to know a lot about the surrounding area and also laws in accordance to what’s being affected as well.

Speaker 2 (45:16)
Yes.

Fortunately and unfortunately. And it’s going to almost always be teach thyself. Definitely. is online. It’s pretty easy to find stuff. ⁓ There are plenty of books on environmental law that aren’t that hard to read. but yeah, the more you get familiar with all of these, the more that you are concerned. You want to learn these things. So.

Speaker 1 (45:36)
Yeah.

Speaker 2 (45:57)
still make those casual comments. I’m going to keep going on that. But boy, if you want to have an effect, you are going to have to go deeper. And each project is going to be a little bit different. And if you only work on one project in your life to write real comments, great. Thank you for the one. But you’re going to learn enough. You might be wanting to ⁓ keep going.

Speaker 1 (46:23)
Yeah, well and and I think that not one person can’t do everything and can’t do all the

Speaker 2 (46:29)
projects.

have to pick your battles. So, yeah.

Speaker 1 (46:31)
Totally.

Speaker 2 (46:35)
So those are the impacts that we’ve been talking about but there are also the procedures the requirements of each individual law where this is where you do look at NEPA in depth and Take a look at what’s required there ⁓ NEPA has a number of requirements and the first thing that people Initiating a project first they have to have an idea ⁓ It’s usually brought to them and said we we see a need ⁓

for

Getting here’s the release relatively simple one the beaver of all being killed This is an environment that used to have lots of ponds in it. We’d like to get the ponds back we got to make a decision here do we do we bring back beaver and With their

challenges, especially if it’s now, if we’re going to do it and there’s housing nearby. So in big cottonwood, that would be pretty tough to bring the beaver back and not have people ⁓ killing them as soon as they proper move onto their property. So instead there’s this thing called a beaver dam analog where you go out and essentially build a beaver dam and you get the public to come out and help you. And the public tends to like to do that. And you weave together all this stuff and, and make a beaver dam.

So ⁓ we are going to have a public scoping period and ask people the big broad question without the details. ⁓ What are the concerns that you see? And homeowners are going to have their set of concerns. Other people are going to have others and they’re going to say, well, the moose population here is already too high or maybe, ⁓ that might help bring back more moose, not bring them back. Moose are new in this environment. So.

If we’re going to do it in one side canyon, do we think we’re going to do it in others? And in scoping, you need to say, do we want, is this going to be bigger? Do we want to limit it here or during the scoping period, people might be saying, yeah, here are these other places that I believe had beaver dams too. And now the project is much bigger. So that may bump us into a significance. ⁓

But in scoping, you’re going to the public, you’re going to other agencies, you’re going to Native American groups, and you’re asking them in broad, what do you think? So there is a scoping period for an EIS where the public starts making their comments. It’s not the only time that they make comments. The recommendation by the Council of Environmental Quality is to scope early and scope often, or ask for public comments early and often.

more than the law itself requires. Let’s see, we also, I’ve hinted toward it already that there has to be a definition of the study area. So the affected area, ⁓ projects can overlap outside that a little bit. So, but for the most part, there is going to have to be a definition of this is the study area. So you can comment by saying,

That looks great. I think it covers everything. And then other times you can say, wait, wait, wait a minute. That project, you can’t just look at that little thing. There are connected projects, connected effects, foreseeable connected effects that go much farther. So you do get to address the study area and give examples of.

going beyond what maybe they are suggesting. Also early on, the agency will be putting out a purpose and needs statement. So why are they doing this proposed action? And you’d need to read those carefully because that will become the standard that they have to answer to. So if you think that they are really wrong on their purpose and needs, you’d need to sit down and write out a very

A more accurate purpose and needs and I have sat down before with agencies and just said your purpose and needs do not reflect this project. Sure. It’s going to be really easy to meet those purpose and needs, but that’s not the real reason why we’re doing this. So yeah, re read those really closely early on, make your comments early. See if you can get them to change them before.

the draft environmental impact statement comes out. So not every agency will have public comments and tell the draft, but boy, if they do, you want to start, you want to read that, and this is a logic thing. You want to look at that purpose and needs and say, no, this project is really being promoted for this reason.

Speaker 1 (51:48)
Is it common for agencies to then like change their purpose and needs when people pointed out that it doesn’t align with where the project is headed?

Speaker 2 (51:59)
I don’t know. In my experience, it’s been mixed. Because they generally write them in a way that they can meet rather than what’s actually going to happen. that’s probably one of the hardest ones I’ve had to work on to get a change and not.

Speaker 1 (52:00)
It depends, probably.

Okay.

Mmm.

Speaker 2 (52:25)
But it’s really important to be on the record that you did not find their purpose and needs to cover to be adequate. And therefore, it’s arbitrary. So.

Speaker 1 (52:37)
Right.

So that’s kind of the flow of keeping in mind when it comes to procedural ⁓ and NEPA itself. So you have like the scoping, the study area, and the purpose and needs. so taking all of these into account.

Speaker 2 (52:55)
Those are early on parts before we get to the impacts.

Speaker 1 (52:59)
Okay, so that’s like the first big stage.

Speaker 2 (53:02)
Yeah, that’s how they’re going to run an EIS. Those are going to be written and decided pretty early on. Then they know what impacts to study a little bit better. So those come early and sometimes they’ll publish those early and ask for comments. And sometimes they’re just going to wait to tell when they’re legally required to have them, which is the draft EIS. And then you comment. I comment again, I make sure my comments are there.

And it’s copy and paste some of it. It’s not always new. ⁓ Copy and paste is just fine, but you want to have in the administrative record. You made those comments early on. You’ve made them again and you made them again. So there may be three times. You just keep getting it in the record.

Speaker 1 (53:53)
Have there been ⁓ times in your experience where you have one comment, but then you learn more information or you have different conversations with people that your previous comment has now changed significantly?

Speaker 2 (54:08)
Yes, I am more than willing to change with new information. So another reason to keep commenting. And I tend really my comments get more sophisticated as I learn more. I’m sure those very first ones, you really don’t know what’s going on yet. Everybody’s trying to figure that out. So my comments tend to get much more sophisticated with time.

Let’s see, that’s talking about NEPA. ⁓ This is specific to NEPA, but, and I’ve already used most of these words. So within NEPA, the Council on Environmental Quality has had to define some of the words used in the original law. And they say that actions, so proposals, projects,

⁓ need to be evaluated with any connected project. ⁓ You also need to evaluate the cumulative. So that typically means you need to go back 10 to 20 years. And what have we done to this environment that we’re now accustomed to? But what was it like long before? And can we justify changing it again? Maybe if we don’t look back and we say, this change is tiny.

We go ahead and do it, but if you do, you go back, you look back 20 years and go, wow, we have already altered this environment so much that we’re not going to involve it. And you also need to look forward ⁓ and looking at those impacts. So CEQ, Council Environment Equality, has also defined their impacts that you must look at direct. Those are the ones that are pretty obvious. That’s the shovel in the dirt.

indirect. So if we put up a road or a barrier of any type, how does that affect migrating animals? Seasonal migration, it doesn’t have to be the big migration from summer to winter or from one major area to another, but it can just be, okay, the deer and the moose are going to move down and get into lower and less and less snow so that they can find something to eat. ⁓

So yeah, if we only think about this in the summer when we’re using it, but what’s the indirect, what, how’s that going to affect further down the line? And now if they’re trapped into a smaller area, what does that mean to the vegetation? What does that mean to the smaller animals? And if we’re losing all of our rabbits and mice, what’s the effect going to be on the coyotes? And so those are pretty indirect and you.

have to understand ecological systems to go down that path. ⁓ Cumulative impacts, ⁓ pretty similar to the cumulative up there on actions that ⁓

Remember that this is also the human environment. So the cumulative impacts people are now accustomed to this amount of development in a public area, but

Do we want more? And maybe we say, well, yeah, we’ve already got concentrated action here. Let’s keep this as the only concentrated area. So you might think of ⁓ cumulative in the way of concentration, and you might also think of it as saying, well, enough is enough. But that has to be considered, is the cumulative ⁓ impacts.

⁓ environmental impact statements. can’t remember if we got it much done talking about alternatives or not. ⁓ but in an EIS, they have to give at least three possible solutions. Often there are five, I’ve even seen seven possible solutions in the draft EIS. They eventually change them, often modify them from the public. This is what changes the most is that the style of the project, ⁓

What changes the most are these alternatives. And I think they really do listen to the public and their view of impacts. This is what you’re going to see the change in, is from the draft of three to five to seven alternative possible solutions to the final. That is where the public probably has the most impact. That’s so visible through there.

through the alternatives and the refinement that they finally do.

We’ve covered a lot.

Speaker 1 (59:03)
Yeah, a lot of information. We’re talking about from writing the comment periods to educating yourself on what a project might affect the study area. And we’ve talked about the APA process and NEPA. Yeah, and it seems like it can be maybe a lot for people who are listening and who are just kind of taking all this in at one point.

But it’s so important too, because like you said before, not a lot of ⁓ countries and areas have an APA process like this where it’s from the bottom up rather than from the top down. And especially with places like the Central Wasatch and regions that people deeply, deeply care about, it’s important to partake in these common periods.

Speaker 2 (59:57)
I highly recommend it. And probably the first time is the hardest time. And even if all you do is write, like it, I don’t like it. You’ll go, I’ve pushed that button before I can do it again. And you can do it again on the same project until the day it closes. So you can have your name multiple times on their list of commenters. And that’s great. Cause you will learn more over time. Comment early, comment often.

Speaker 1 (1:00:27)
And actually I wanted to ask you, what was your first comment period like? Do you remember? And what was that learning experience like for you?

Speaker 2 (1:00:35)
No idea.

And I told you, my first experience was actually being given a code book and said, read these letters, fit them into the code. And, and then we will, that’s how we will accumulate our data. And there were new codes written every week as people were making, wow, we’ve never had anyone comment on that. Let’s give it a new code number. And so that’s.

Speaker 1 (1:00:48)
Wow.

Speaker 2 (1:01:07)
But that was at that time, the largest public comment ⁓ project with the most number of comments ever. And computers were just coming in. This was 1978. yeah, laptops were in the future by 20 years, 25. ⁓ It was handwritten letters. Wow. And then my job was to read them, absolutely know the code book.

Speaker 1 (1:01:22)
⁓

There was a lot of letters.

Speaker 2 (1:01:37)
of different categories of the many things we’ve talked about. They all had their own code numbers and we were saying that, okay, here is what the comments, the number of comments and because of the comments, the depth of the comments, because we were writing new people above me, we’re writing new places for us changing the code book, which was great. We just had to, okay, I have seen that before. I didn’t know where to put it.

How wonderful we now have a category. ⁓ so, and that was not NEPA, that was wilderness areas. So there was a lot about areas that were, would be disqualified because they didn’t actually meet. There were some confessions that people should have never made. Like, there’s a road there because my buddies and I just took our trucks last week. comments are interesting.

Speaker 1 (1:02:34)
I’m sure, and I’m sure as you’ve seen them change over the years from letters to computers and also accessibility to vast amount of information with the internet.

Speaker 2 (1:02:45)
Yes, careful what you read there.

Speaker 1 (1:02:48)
Yeah. well, is there any other last thoughts that you’d like to, you know, talk about, whether that’s APA, NEPA, or just public comment periods? you have anything else to share?

Speaker 2 (1:03:01)
we did do a great job on what I brought in and intended. ⁓ there, I’m going to just repeat myself. Comment, comment often, ⁓ be heard. Written comments aren’t the only way. ⁓ there are public demonstrations that are worth attending. There are public work projects that are worth attending. that’s a totally different kind of comment to say.

I work in this, I volunteer. If I’m doing trail work, volunteer in the area. That gives you a connection to a place that you want to be able to say to your reader in the agency that says, okay, this, I’m taking this letter extra seriously. This is a person who volunteers here. So yeah, think about the reader of the comment, just not just you and don’t comment while you’re angry. I mean,

Some anger is permanent, yeah, make the comments in writing in person.

Speaker 1 (1:04:11)
Great. Well, thank you so much, for coming on the podcast. ⁓ And for those who are interested in learning more, past what we’ve just discussed in this episode, we will have resources in the description that you can check out and read more and educate yourself on what your next public comment period is going to be like and how you’re going to format it in a very effective and positive way. ⁓ And yeah, thanks again, Kirk. That was awesome.

Speaker 2 (1:04:37)
Thanks for the invitation.