Final Comments on the MLPAI’s Draft EIR

For anyone interested, here are my final comments, turned in today for the record, on the Resources Legacy Fund Foundation’s “Horizon Water and Environment” Draft Environmental Impact Report, privately hired for the totally corrupt MLPAI “Initiative.”

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FINAL COMMENTS on the Marine Life Protection Act

North Coast Study Region Draft EIR

by David Gurney, April 16, 2012

Please note for the record that at a hearing on the North Coast Draft EIR on March 20, 2012, in Fort Bragg, California, David Gurney was assaulted at the podium by Resources Legacy Fund Foundation (RLFF) privately contracted MLPAI facilitator Michael Stevenson, with ‘Horizon Water and Environment.’  Mr. Stevenson attempted to push Mr. Gurney away from the microphone, after Mr. Gurney had requested a few extra seconds to wrap up his comments. He had been formally ceded time by another speaker, Mr. Gabriel Maroney.  Mr. Maroney’s speaker card, requesting that his time be ceded to David Gurney, is part of the public record.

Mr. Gurney’s comments were critical of the DEIR, and so Mr. Stevenson forced the issue by threatening to shut down the meeting unless Mr. Gurney relinquished his request to finish his comments under extra time ceded by Gabriel Maroney.

At a previous DEIR “scoping meeting” on Sept. 28, 2011, David Gurney was introduced by his full name by Mr. Stevenson. Yet in the ‘Horizon’ Draft EIR report, on page A-5, from that Sept. 28, 2011 scoping meeting, Mr. Gurney is listed as the “anonymous speaker.”

For the record, David Gurney’s on the record public comments from the Sept. 28, 2011 DEIR ‘scoping session’ are transcribed, verbatim, below:

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“I’ll be very brief. I just want to ask the same question that I asked in April 2010 when I was actually arrested for asking this same question, which is: Why the MLPA has not officially provided protection from oil and natural gas exploration and drilling, as well as wind and wave energy development?

And I’m wondering through this Environmental Impact process, if those issues are going to be dealt with?

One of the stakeholders, whose name I can’t remember right now, who passed away during the process, (Skip Wollenberg) was trying to get laws put into place that prevented pipelines and development from offshore drilling (that would go through the benthic zones of marine protected areas) to be put into place along with the MPA’s, and I don’t think that was dealt with.

We could take a lesson from the Gulf where there are many wildlife refuges, many protected areas that were totally destroyed by the Gulf oil spill, which ironically happened that same day, April 20, 2010, when I was told I couldn’t videotape MLPA public meetings. I was arrested the next day for asking the same question that I’m asking right now.

Also, why is there no mention of other industrial developments like commercial fish farms, and as I said before, wind and wave energy development?

So I’m just wondering if the CEQA process is going to delve into these issues? Thank you.”

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Members of the Fort Bragg community repeatedly and respectfully asked the MLPAI “Initiative” to address these issues, including the above comments on wave energy. In fact, as stated, this writer was unlawfully arrested at a public MLPAI meeting, on April 21, 2010, for trying to respectfully ask a question regarding wave energy in relation to this MLPAI project.

And yet on April 6, 2012, ten days before the deadline for these comments, I was obliged on behalf of the Ocean Protection Coalition to file a “Motion to Intervene” with the Federal Energy Regulatory Commission – for a 2012 “GreenWave” wave-energy permit on a large fifteen (15) square-mile ocean tract, less than one-half-mile offshore of two MLPAI State Marine Reserves: the Point Cabrillo SMR, and the Russian Gulch SMR.

Does this DEIR seriously claim that an approximately fifteen (15) square-mile tract for wave energy machines would have “no significant effect” on two MLPAI State Marine Reserves, less than half-a-mile away?

This DEIR fails to address my comments from the scoping session on the effects of wave energy projects, and other human impacts on MPAs, in general.

Repeated attempts by the MLPAI to silence and/or limit discussion by the public on the lack of significant ocean protection by this project have been duly noted in light of the present permit application by GreenWave, for a wave energy tract adjacent to new State Marine Reserves, recently approved by the MLPAI.

A map of the two coastal reserves and the large wave-energy tract permit, appears below:

Point Cabrillo & Russian Gulch “State Marine Reserves,” upper right in orange, and the 15 sq. mi. “GreenWave” energy permit area, just offshore in red.  The “three-mile limit” of CA state waters is the blue line.  The square-mile area of the GreenWave permit zone is roughly equivalent in size to the new marine reserve closures, proposed by the MLPAI for other regions of the Northcoast.

 

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The following is a copy of the federally filed ‘Motion to Intervene’ on the “GreenWave” wave-energy project:

 

Motion to Intervene in FERC Docket No. P-14291-000, GreenWave Mendocino Wave Park Project GreenWave Energy Solutions, LLC

Ocean Protection Coalition

P.O. Box 1006 Fort Bragg, CA 95437

Tel: 707-961-1339    jugglestone@comcast.net

April 6, 2012

THE OCEAN PROTECTION COALITION’S MOTION TO INTERVENE AND COMMENTS REGARDING PRELIMINARY APPLICATION

INTERVENER STATUS OVERVIEW

Intervener status is requested because the Ocean Protection Coalition (OPC) has a long and honored historical record for the care and protection of California’s North Coast, and the Mendocino Coast in particular. As a local Mendocino Coast organization, OPC represents a wide range of coastal constituents, in the precise area most affected by GreenWave Energy Solution LLC’s (GreenWave) proposed project.

For 35 years, the OPC has represented those who have a deep spiritual and economic connection to the ocean, including recreational and commercial fishers, sea-vegetable harvesters, a vibrant tourist industry, and a passionate conservation and environmental community – all deeply concerned with the protection of wildlife, habitat, and food resources on our coast. The OPC has been successful in advocating for the protection of these vital resources, including plants, shellfish, birds, fish, marine mammals, and the ocean ecosystem as a whole. We have been central in the dialog of our community for the protection of ocean wilderness from oil and gas drilling, and other destructive forms of ocean industrialization.

STATEMENT OF FACTS AND POSITION

When GreenWave filed its original preliminary permit P-13053 in 2008, a significant public outcry resulted. Over the course of well over a year, contentious public meetings were held, involving GreenWave, and the Pacific Gas and Electric Company, who were co-applicants on a similar project proposal, just north of GreenWave’s present area of interest. These agencies were informed in official public comment during FERC’s first public meeting, that the small fishing port of Noyo Harbor, the only safe harbor within 120 miles of the proposed permit areas – was too small, and inappropriate to accommodate this type of industrial project.

After extensive meetings, review, and numerous objections expressed by local interests, over one year later, the Mendocino Coast community was summarily informed by P.G.&E. that they were canceling their permit, because our harbor was – “too small, and inappropriate to accommodate this type of industrial project.”

During GreenWave’s first preliminary permit application process in 2008-9, The Ocean Protection Coalition submitted a lengthy Motion to Intervene, Docket # P-13053. Some of the important issues our community found surrounding this wave energy project, and the many reasons it was found unacceptable for the Mendocino Coast, may be found in this public records document.

In the course of the original GreenWave permit proposal P-13053 in 2008-9, OPC spent literally hundreds of hours becoming well-versed in the field of ocean hydro-kinetic power systems. An educational PowerPoint slide-show was presented before the Mendocino County Board of Supervisors, the Humboldt Bay Harbor Commission, and other community groups and meetings. Informative articles were also written and published by OPC on the subject.

At the time of GreenWave’s original permit application, up until the present, many have expressed feelings that GreenWave has no serious intention or purpose with this proposal, beyond irresponsible speculation, and that GreenWave is engaging in what is

known in the industry as “site sitting” – a scheme of speculative control over areas of interest, for no legitimate purpose other than retaining the permit itself, that engages the public and federal agencies in a process that is frivolous, fraudulent and negligent.

GreenWave has already established a track record of filing such a frivolous permit application, only to have it lapse and expire in an untimely manner.

Additionally, in the past two years, the State of California’s Marine Life Protection Act ‘Initiative’ has designated two “Marine Protected Areas”: The Point Cabrillo State Marine Reserve, and the Russian Gulch State Marine Conservation Area, both of which are less than a mile from GreenWave’s present Docket # P-14291 proposal. These MPA no fishing restriction zones, under the authority of the California Natural Resources Agency, were painstakingly set aside specifically for the protection of habitat, fish, and wildlife. Wave machine installations adjacent to and seaward of these conservation areas are an industrial development inimical to the very idea of ocean wildlife protection.

Grey Whales and their offspring travel right through the area of GreenWave’s proposed permit, on their bi-annual migrations, and could become entangled in the underwater power cable grids and extensive anchoring systems needed for wave energy “farms.” The noise emanating from these machines, and the pollution from marine paint, construction materials, diesel fuel and hydraulic fluids, used for installation and maintenance, are totally inappropriate to be placed in, near, around, or adjacent to Marine Conservation Areas. This proposal threatens the wildlife that these conservation areas were set aside to protect.

The permit area is also in a coastal navigation zone heavily used by commercial and recreational vessels, many without radar. The installation of any obstacle in these open waters would create a dangerous navigational hazard, particularly in the fog or during storms.

CONCLUSION

Because of, and not limited to the above, the Ocean Protection Coalition believes we have an important and relevant place at the table as interveners in this matter.

On behalf of our organization, we respectfully request the Commission to accept and grant the Ocean Protection Coalition’s timely Motion to Intervene, to obtain party status in the above referenced proceedings related to GreenWave Energy Solutions, LLC’s application for a preliminary permit #P-14291, to begin evaluation for the “GreenWave Mendocino Wave Park”, in an ocean area designated directly west (0.5 miles) and adjacent to the town of Mendocino, an exclusive priority zone some 2.5 miles wide, 6.9 miles long, and extending from just north of Albion, to just south of Caspar, at the coordinates: 39° 20.024?N 123° 50.014?W; 39° 20.001?N 123° 53.009?W; 39° 14.238?N 123° 50.870?W; 39° 14.327?N 123° 48.018?W, on the Mendocino Coast of California.

Sincerely,

David Gurney, Chairman Ocean Protection Coalition (OPC)

Ann Rennacker, Secretary/Treasurer, OPC

Char Flum, Steering Committee, OPC

John and Barbara Stephens-Lewallen, Steering Committee, OPC

Ed Oberweiser, Steering Committee, OPC

Judy Filer, Steering Committee, OPC

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CERTIFICATE OF SERVICE

I, David Gurney, declare on this day April 6, 2012, that I have hereby served by first class mail or electronic email, a letter to the Federal Energy Regulatory Commission Secretary Bose, and to each person designated on the official service list compiled by the Commission, the Ocean Protection Coalition’s ‘Motion to Intervene’ and this Certificate of Service, in the above referenced proceeding.

I declare under the penalty of perjury that the foregoing is true and correct, executed on April 5, 2012 at Fort Bragg, California.

____________/s/______________ David Gurney

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Finally, these questions remain, regarding the oppressive, top-down and undemocratic process of the privatized MLPAI “Initiative”:

1.) Why was I arrested at an April 21, 2010 MLPAI public meeting for trying to respectfully ask a question related to wave energy and oil development? Why were these questions, raised repeatedly by the public throughout the MLPAI process, never adequately addressed? Why are we now, before the North Coast MLPA has even been adopted, already having to deal with wave energy permits adjacent to “Marine Protected Areas”? Why does this DEIR list ocean industrial development as having “no significant effect”?

2.) Why were Bagley-Keene Open Meeting Laws grossly and flagrantly violated at public meetings of the MLPAI, and why was the public and the press prohibited from openly recording these public MLPAI meetings?

3.) Why is the California Attorney General’s Office defending private MLPAI contractor Ken Wiseman for these Bagley-Keene and other violations, when Mr. Wiseman, by his own account, is a privately-paid contractor for the Resources Legacy Fund Foundation, and not a state-paid employee?

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Additional comments on Horizon Water and Environment?s DEIR:

DRAFT ENVIRONMENTAL IMPACT REPORT (DEIR) for the NORTH COAST STUDY REGION Submitted by David Gurney, April 16, 2012

I. Science related aspects of the Draft EIR 1.) Chapter 1.4 — “Topics Dismissed From Detailed Analysis–Mineral Resources

The issue of protection of Marine Reserves from oil/gas drilling and infrastructure, or any other ocean industrialization projects, in or around Marine Reserves, was not addressed, and was deliberately kept off the table during the entire MLPAI process.

The president of the “Western States Petroleum Association,” Catherine Reheis-Boyd sat on the “Blue Ribbon Task Force” throughout the MLPAI process, representing a gross conflict of interest.

2.) Chapter 6-4 of the the Draft EIR states: “scientific and educational research” will have “no significant impact.” Yet the EIR identifies 20 organizations, institutions, and governmental agencies, and four non- governmental organizations (NGOs), with an interest in these marine reserves.”(pg. 6.4.3)

In addition, the EIR states there are now 562 “scientific collecting permits” valid for our Marine Region. (pg. 6.4-8)

I question whether 562 loosely regulated “scientific collecting permits” – for the potential take of fish in Marine Protected Area closures – will have “no significant impact” on the ocean or the culture of the North Coast region.

3.) Seventeen Native American Tribes from throughout Northern California have expressed a renewed interest in harvesting marine resources in the “North Coast Study Region,” as a result of the MLPAI. The increased pressure on marine resources has not been addressed as an “impact” by this Draft EIR for the North Coast region.

In my opinion, neither the California nor the United States Constitution allows for special, discriminatory access to the ocean for spiritual, scientific or subsistence use of marine resources, based on criteria described in item II. 8. below.

4.) In Section 4.3 of chapter 4: “Biological Resources” the EIR states: “the majority of the study region’s habitats occur in areas 100 m or shallower. In fact 93% of the study region occurs in water 100 m or less.” The section lists as “unknown habitats” 127 mi.! of the marine study region from 0 to 30 meters deep. In a strip coastal habitat from Point Arena to the Oregon border, to three miles out, the EIR identifies 127 square miles as “unknown habitat” in the 0 to 98 foot depth range. According to the DEIR figures, this is over a quarter (27%) of the study region, from the shoreline, 0 to 98 feet deep.

The EIR also claims on page 4-31, in section 4.3 – “Environmental Setting“ that the 127.9 mi.! or 27% pof the region is “unknown substrata.” This represents a severe lack of data for the process of choosing MPAs.

5.) The MLPAI’s sonar mapping vessel, working to identify undersea habitats through marine mapping, struck and killed a 72 foot blue whale. The vessel at the time was operating illegally without a valid permit, and without the required marine mammal observer onboard, whose job it is to spot whales and avoid such accidents during hydrographic operations.

The data supplied by a contractor willing to violate the law in both the permitting and operation of their sonar surveys must be called into question, along with the gap of over 25% of the critical 0 – 100ft habitat

in the Study Region. As a result the entire Marine Mapping project needs to be re-done, for credible and usable scientific data to be used implementing meaningful marine protected areas.

6.) Mr. Ron LeValley, Co-Chair of the MLPAi “Initiative’s” ”Science Advisory Team” , was recently arrested on felony fraud and embezzlement charges. Although we do not know the outcome of these allegations, the very fact and circumstances of this arrest call into question the integrity of the entire scientific process used in the MLPAI.

In my opinion, the science used for implementation of the MLPA needs to be fully and independently investigated and verified following Mr. LeValley’s felony arrest. Otherwise, the science for this DEIR cannot be considered valid.

The standards for the “best readily available science” used in the MLPAI project may need to be set higher.

7. Members of the MLPAI and its science team have improperly secured jobs and grants for themselves to “research & monitor” new MPAs, in a blatant display of cronyism and nepotism with this privatized process. Perks, hotel rooms, meals, travel expenses, per diems, and “grants” – were freely offered through the Resources Legacy Fund Foundation (RLFF) throughout the MLPA process, to both individuals and organizations.

II. Analysis of other improper/illegal actions by the MLPAI

1.) The privately funded implementation of the MLPA, nor the law itself, was ever voted on by the people of this state, though this project alters the California State Constitution (See: Article 1, Section 25), which guarantees equal ocean access to all Californians.

2.) California, through the Department of Fish and Game and the Fish and Game Commission, already has “statutory authority to determine season and conditions” under which any plant or animal species may be taken. Hence the MLPA limited access program is unnecessary under existing law, as any or all species may be listed, in both time and place, by “seasons and conditions.”

3.) The MLPA process called itself an “Initiative.” But an Initiative in California has a specific legal definition. An initiative is the process of collecting signatures for a measure to be put on the ballot, and then voted on by the people.

The MLPAI “Initiative” was not an initiative.

4.) Private aquariums will be allowed take in the new Marine Protected Areas, under the legal umbrella of “education and research.”

The people who funded this “Initiative” (through the RLFF) own the Monterey Bay Aquarium, contractors for them “take” marine resources for profit, on behalf of their own and other private, public, and commercial aquariums. A vested conflict of interest in the creation of the MLPA “Initiative” is being granted exclusive rights to “take” within MPA’s they have devised.

5.) The privately funded “Initiative” violated numerous law in the course of it’s 2009-2011 process in the North Coast Region. Among the violations committed during the North Coast MLPAI “Initiative” process:

a.) The MLPAI repeatedly violated Bagley-Keene open meeting laws by improperly noticing their public meetings. It changed the location of a Sept. 2009 meeting without proper notice, and it announced a follow-up meeting for the following evening, all without proper notice and in violation of B-K.

b.) Members of the public, while seated in the audience, were repeatedly and improperly approached by initiative staff during public meetings.

c.) The MLPAI engaged in secret, non-noticed meetings with Tribal representatives, without oversight or proper representation of the public, in violation of Bagley-Keene Open Meeting laws.

d.) The MLPAI seriously violated Bagley-Keene open-meeting and civil rights laws, by prohibiting public comment and press coverage at some of their public meetings. This writer was repeatedly harassed for trying to legally record MLPAI public meetings. I was finally falsely arrested, and charged with “disrupting” the meetings, for legally asserting rights under the Bagley-Keen Open Meetings Act.

The Mendocino County District Attorney categorically refused to prosecute the false charges and arrest by the MLPAI.

e.) The MLPAI “Initiative” engaged in the illegal financing of individuals, organizations, agencies, and government entities throughout the course of their project.

f.) The MLPAI misleadingly called itself an “Initiative,” when in fact an “initiative is a specifically defined process of obtaining signatures to put a measure on the ballot, to be decided by the voters. The Initiative process is clearly defined by the California Secretary of State anf the Office of the Attorney General.

(Other MLPAI “Initiative” violations may be referenced in Section I of this document.)

6.) I object to the naming of the Ten Mile State Marine Reserve after Skip Wollenberg. Mr. Wollenberg staunchly insisted that marine protected areas have, written into law, an absolute prohibition of underwater pipelines, cables or any other infrastructure related to industrial development, oil and gas drilling.

I believe Mr. Wollenberg would have demanded that these prohibitions be in place, before his name would be attached to any MPA.

To do less is disrespectful Skip Wollenberg’s memory.

7.) It is illegal and unjust to delegate access to the ocean for only certain individuals, for the take of plants and animals, or access for spiritual communion, public or private, or for subsistence food gathering – on the basis of race, religion, national origin, cultural identity, professional, economic or scientific status.

The access to interrelate with nature should be based solely a human being’s respect for nature.

In my opinion, abrogation of these rights is a violation of both the United States, and the California Constitutions, and the essence of equality, civil rights, and fair play.

8.) The end result of denying access to areas already severely regulated to public, and opening these MPAs up to 562 “scientific take” permits, twenty research and educational organizations, seventeen tribes, four NGO’s, possible oil/gas interests, energy interests, aquaculture interests, Navy testing and training, and the increased pressure on other areas from displaced fishing interests, will have the opposite effect of that intended by the MLPA in the first place.

9.) Finally, how can a Draft EIR – be paid for by the same private parties (the RLFF) – who financed the MLPA “Initiative” in the first place, and still claim to be independent, fair, accurate, just, or comprehensive – or even legal?

The gross conflict of interest in the financing of this EIR by the same private funding sources as the project itself, should be cause for this EIR to be invalidated.

III. Other Observations: MAPS INACCURATE, NO COORDINATES

The maps and descriptions of MPA’s are unsatisfactory. Coordinates for locating MPAs are not included. Maps presented in this DEIR are unprofessional and inaccurate.

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One Response to Final Comments on the MLPAI’s Draft EIR

  1. Don Sack says:

    This will be a wall for migrating fish and marine animals as well as a loss of habitat and fishing grounds. These huge obstacles create electrical fields that have been proven to drastically change the movement of fish away from them. Most migrating fish will be forced outside of state waters into trawler territory. State waters have most of our fishery resources for the shore-based hook and line fishing fleet and this will only impact them. There are places in federal waters that contain less habitat and living resources that could be utilized but this would be impacting trawlers and they wrote all these laws to impact everybody but themselves. If boats are not allowed to traverse these areas then they will be forced to navigate around them. Dangerous in bad weather. The bottom line is the cost of maintaining these massive devices out at sea will outstrip any profits and only tax payer subsidies will keep these projects alive. I know because boat maintenance costs are a huge part of putting a boat into saltwater.