Last week, the Department of Interior Inspector General announced an investigation into the conduct of the National Park Service Draft Environmental Impact Statement (DEIS) for Drake’s Estero, prepared by its contractor, VHB. A spokesman for the Inspector General said “the inquiry will examine whether park staff followed correct procedures; it will not include an examination of the integrity of the science itself. If evidence of procedural abnormality or misconduct is found, an official investigation will then be launched to determine whether or not that activity was criminal.” Here, the science itself is not what is controversial; it is the management decision to ‘import’ non-representative sound data rather than follow NPS policy and procedures.
This decision becomes key in evaluating potential fraud, as it is the apparently deliberate use of non-representative data by the NPS to support its latest claim of environmental harm caused by the oyster farm. Was it NPS or VHB who decided to ‘import’ the bogus data? What is clear is that at the same time NPS was starting work on the Drakes Estero environmental permit (or ‘review’), the NPS was being slapped down in Federal District Court in a 2010 decision involving jet-skis sound measurements in National Parks in Florida and Michigan, with the court specifically questioning NPS’ use of imported sound data. (Bluewater Network v. Salazar) The court, in their ruling, specifically noted the NPS failure to provide rational explanations to demonstrate that their conclusions were justified by the data.
The record shows that NPS and VHB knew of the impact of the rulings in the Florida/Michigan case at the time they were preparing the Drakes Estero DEIS. Jake Hoogland, former Chief of NPS’ Environmental Quality Division, before retiring in 2008 and moving through the typical Washington revolving door to VHB as their NPS Market Leader, made a presentation at the 2011 George Wright Society meeting, funded by NPS. His presentation discussed the impact of the recent court decisions on personal watercraft in the National Park System and their impact on science and regulation. Significantly, Hoogland visited DBOC on 1 September 2010 and was given a full tour of all the facilities on a day when the farm was in full operation.
DBOC Farm Manager Ginny Lunny-Cummings holding a sound meter within 3 feet of the oyster tumbler, indicating a sound level of 61 dB, Rather than measuring, the Park Service imported supposedly equivalent data showing the device put out 79 decibels at 50 feet. The Times reading agrees closely with the Environ reading of 50 decibels at 50 feet, ten times less than the NPS limit of 60 decibels at 50 feet (36 CFR 2.12) For further details on sound issues see this link: ‘Counterfeiting Science‘
Much of the controversy in the Drakes Estero DEIS focused not only on why NPS and VBH failed to measure the actual sound of the DBOC boats, but why they substituted data from a 75-horsepower, two-stroke jet ski tested in 1995, for the late-model 20 and 40 horsepower four-stroke outboards DBOC uses, as measured by Environ.
The disagreement is not scientific per se, but one of substituting erroneous data. Personal Watercraft Industry Association Executive Director, David Dickerson, stated that “there is no controversy over the methods used to test for boat sound, which are well known to state and federal regulators,” and went on to state that they are used for law enforcement and follow established sound standards.
The Association has worked extensively with NPS for over two decades involving use of jet skis, and noted the considerable experience of NPS’ Ft. Collins soundscape scientists in this area. He said that NPS was well aware of the significant advances in Jet Ski and outboard motors to meet the 2005 EPA guidelines, and noted that in the Florida case, NPS based their arguments on the fact that these improvements have brought about sound-level reductions of over 70% from earlier two strokes. In its 2011 judgment, the court was repeatedly critical of NPS’ failure to establish “a rational connection between the facts found and the choices made.”
In the Drakes Estero DEIS, no reasons are given for selecting the jet ski sound, and the even more distorting substitution of construction-equipment sound data for actual oyster equipment. This fact places these questions before the IG’s investigation: who at NPS or VBH is responsible for the decision not to make actual measurements of the DBOC equipment; who selected the 1995 Jet Ski and other imported data; and what was their rationale for doing so.
The imported data selected for the DEIS produces results claiming to show negative impact over the entire estero, covering all the seal haul-out areas. However, NPS has run through five generations of hypotheses of harm to establish a negative link between oyster-farm activity and seal populations but failed in every instance. NPS even conducted a three-year, hidden-camera surveillance program, but when it failed to show the hoped-for harm and impairment, this lack of harm was concealed from the National Academy of Sciences, and the Marine Mammal Commission panel of experts, who found no meaningful conflict between oyster operations and wildlife.
In fact, much of the Drakes Estero DEIS would suffer from the Court’s criticism of the Florida case, where the court found NPS “arbitrary and capricious” in reversing its earlier decision on personal watercraft. In the Drakes Estero DEIS, the Park Service also reversed itself. In 1998, NPS performed an Environmental Assessment on a major upgrade of the oyster farm, including an interpretive center and research facilities, and issued a Finding of No Significant Impact (FONSI) under NEPA law. The current DEIS reverses that position, and raises the question as to what has changed in the law and in the science since 1998 that would justify NPS’ reversal of the earlier findings, which had been supported by the County of Marin, the Sierra Club and other environmental organizations
What the court essentially found in the Florida case is that NPS had reached a series of conclusions without adequate explanation as to how they were justified. At Drakes Estero, NPS’ DEIS presented a series of unsubstantiated conclusions based on altered standards and manipulated data. In the Drakes Estero case, management decisions were made by NPS and VHB not to measure actual DBOC sound sources and then to rely on totally unrelated jet ski, construction jack-hammer and large construction equipment sound measurements instead. The NPS soundscape programs require that specific sources, such as the DBOC equipment, be identified, measured and remediation strategies considered. In this case, the DBOC boats are also specific sources, as their sound footprints and GPS recorded routes are unique in the estero.
The DEIS is silent on this substitution, implying that the data represented actual measurements from Drakes Estero. A peer review by the Atkins company was apparently requested by NPS, who then failed to include any of the negative data from the DEIS responses, including comments by other government agencies and Environ, who measured the actual sound levels from DBOC. The Atkins team, including Dr. Christopher Clark, a nationally recognized bio-acoustic expert and the team leader, Dr. Steven Courtney, were completely misled by this NPS deception, typified by the DEIS table of sound sources (Table 3-3), boldly entitled “Noise Generators at DBOC”.
Hoogland’s role at the Park Service, before moving to VHB as NPS Market Leader, was Chief of NPS Environmental Quality Division. This NPS program is responsible for assisting parks and regions with NEPA compliance, including court-ordered actions, resource protection and other related tasks with staff in both Washington, DC and Ft. Collins, Colorado. Hoogland was also responsible for developing the NPS EIS Planning, Environment and Public Comment program, making him aware of the many ways in which the Drakes Bay DEIS deviated from normal programmatic standards, as noted in many of the public comments, all of which NPS withheld from the Atkins peer reviewer team.
While at NPS, Hoogland stated, in a 2000 NPS article on environmental lawsuits, that “Decisions must be based on reasonable information, well-documented and fully disclosed.” A dozen years and millions of dollars worth of taxpayer-funded studies later, what the Drakes Bay DEIS shows us is an NPS that is more than willing to sacrifice scientific integrity and policy for the politics of the moment.