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I know! Let's have a 10-day comment period on a document no one can find!

Andrew Wetzler

Posted October 26, 2008

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A few days ago, I noted that if the Bush Administration really wanted to amend the Endangered Species Act’s implementing regulations, it first needed to prepare an Environmental Impact Statement analyzing the changes under the National Environmental Policy Act.  The problem is, preparing an EIS takes time—and time is one thing this Administration doesn’t have.

Well on Friday the Fish and Wildlife Service announced that it was releasing a NEPA document on its proposed changes.  Only it wasn’t an EIS, it was an Environmental Assessment or “EA.”  An EA is much less rigorous document than an EIS, and one that can only be relied on if the agency (here, the Fish and Wildlife Service) concludes that the proposed action is not going to have a significant effect on the environment.  As I argued on Thursday, that’s a tough argument to make here.  (For a contrary view, see PLF’s blog.)

But putting that question aside for a moment, the Bush Administration has decided to only allow the public 10 days to comment on it’s draft EA (the deadline November 6th).  And, although the clock has started, the Administration hasn’t even seen fit to publish it.  According to the announcement:

This Federal Register notice advises the public that we (FWS and NOAA) have prepared a Draft Environmental Assessment (Draft EA) under the National Environmental Policy Act (NEPA) that assesses the potential environmental effects of the proposed regulatory changes currently under consideration. The Draft EA is available for public review at the following Web site:

Problem is, if you click on that link there is no EA to comment on (at least I can’t find it—if some intrepid reader manages to locate it, please let me know).  What you will see, however, is a “Myths and Realities” page defending the proposed ESA regulations.  So what we have is an absurdly short comment period (10 days!) that has already begun to run despite the fact that the Department hasn’t even posted the document it’s asking for comments on yet.  But they have posted a defense of their proposed regulations that certainly makes it seem like the agency has already prejudged the merits of its proposal—precisely the thing that NEPA’s procedural protections are designed to avoid. 

UPDATE:  Someone just pointed out to me that notice of the draft EA was officially published today, so technically the 10-day clock didn't begin to run until this morning.  Still, we are unable to locate the draft EA on the website and, with a 10-day timeline, every day counts.

UPDATE II: The draft EA is now available here.

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John LiffeeOct 29 2008 03:35 PM

Can't say I recall seeing a landing page for a proposed reg quite like the one you link to in your most recent update -- it begins with a "myth vs reality" section that says that the New York Times, Atlanta Journal-Constitution, Time Magazine and others are wrong in their interpretation of the revised regulation. And then, in "refuting" these estimable publications' suggestion that, as the page puts it, "The proposal would end the consultation process under the Endangered Species Act [and] would virtually eliminate the independent scientific evaluation of the environmental impact of federal actions," the Bush EPA writes:

Federal agencies would continue to be required to consult with the Fish and Wildlife Service and NOAA Fisheries if their intended actions are expected to harass or harm a listed species. The proposed regulations clarify that agencies do not have to consult if their actions have no effect, an insignificant effect, a beneficial effect or an indeterminable effect on a listed species or its critical habitat.

For example, if an agency decides to build a fish ladder to allow listed species to get by a dam so that they can spawn upstream, and the construction and operation of the ladder is not anticipated to result in take or have an adverse affect on critical habitat, consultation would not be necessary.

Decisions about how and when to consult have always been made by the action agencies, and they have to defend those decisions. None of that would change under this rule.
So in other words, we'll have people at, say, the Federal Highway Administration summarily making decisions about a new interstate's impact on critical habitat. Instead of wildlife biologists. Now that makes a whole lot of sense.

And when EPA says "agencies ... have to defend those decisions": Defend to who? The voters, years after the deed is done??

You've really put me at ease there, Mr. Kempthorne.

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