Wednesday, September 3, 2008

My comment on proposed Endangered Species Act Rule changes

Warning: Really long post!

This is a public comment i posted on regarding the "Revised Definitions for ESA Section 7 Consultations; 50 CFR Part 402."

To add your own comment go here.

Basically, (and i read the whole proposal, what a read!!! its pretty long and relatively dry but interesting and recommended by matt) the Dept. of the Interior is proposing changing the rules of the Endangered Species Act. What this means is a few things. The purported goal of the rule changes is to increase efficiency, in effect however it will weaken protections for Endangered Species and Habitats across the US.

For some background info:

Whenever an agency (like the
Federal Highway Administration or the Army Corps of Engineers) decides to do a project they first have to see how that project will affect endangered stuff. They usually have to get scientists from Fish and Wildlife (the Service) to sign off that the project will be okay.


They want to first not have to submit a biological assessment outright to the consulting service, but rather, if they did similar work in other documents they want to submit that for Review instead. Well, this one was no big deal.

Secondly, they want to redefine a bunch of stuff like "cumulative review" and "indirect effect" to have to be shown to be a direct result of the project. This seems sensible enough on paper, but in real life this means that it is impossible to scope the project appropriately. Instead of getting the environmental assessment for an entire pipe line, for instance, the review will only focus on specific portions on specific applications. This also means that far reaching and "long tail" impacts like the effect of green house gas increases on global warming will not be considered; ever. Sorry to the polar bear on that one.

Nextly, well this is the worst part, but basically they propose that if the agency thinks that their project won't affect endangered stuff then they don't have to submit anything for review. Ever. And that's pretty much the crux of the problem. Its like telling the fat kid to guard the pie. The agencies whose goal it is to get a project moving are then the same people charged with protecting the environment which is clearly a conflict of interest. Although, this only applies to circumstances where there is supposedly no "take" (meaning no death or destruction to critters and their homes) whether or not there is take is left up to the agency now. Of course, the Services that review can still say "hey, this is going to have an impact" and they can request one should the need be; but this turns the Services (fish and wildlife and marine) into watchdogs for agencies, which wastes more of their resources and inadvertantly will allow more stuff to slip by. Especially since the new rules are working to set a maximum of 60 days for review which (when a Service is flooded for requests and under funded) will mean a lot more stuff will flow over the dam.

To add your own comment go here.

So here's what i submitted to the public commentors:

***Thank you. Your comment on Document ID: FWS-R9-ES-2008-0093-0001 has been sent.
***Your Comment tracking number is 806ef187 .

I am hereby voicing my opposition to the proposed rule changes of FWS-R9-ES-2008-0093 the "Interagency Cooperation Under the Endangered Species Act."

To begin, the changes proposed by this act would only serve to obfuscate the consultation process between action agencies and Services as well as limit proper oversight by Services.

By clarifying the definition of "cumulative effects" and "indirect effects" to mean clearly that the results of an action must be "reasonably certain to occur" instead of "foreseeable" in the future severely limits the impact of consultation. The inclusion of this definition as well as the inclusion of language requiring that an action must be an "essential cause" of an indirect effect reduces the scope of environmental impact assessment to a level of specificity that undermines the overall impact of environmental review. With these new rules in place, even though an effect would be likely to occur, it will have no standing in the review process unless such an effect can be proven to occur. When dealing with the preservation of species and habitat proof of damage should not be required if it can be shown that damage is likely to occur. This is an intentional attempt to weaken species and habitat protections.

Proposed paragraphs (b)(2) and (3) also exclude from consultation actions which are so uncertain or unlikely that they are tantamount to having no effect on listed species or habitat. Uncertainty should not be tantamount to "no effect." If anything, uncertainty should be cause for review.

Overall the proposed changes in paragraph (b) equate actions which "may affect" species and habitats to actions which can be shown to have "no effect." Once again, this is simply a weakening of protections on species on habitats.

The loss of the need for consultation between agencies and Services based on the proposed changes to paragraph (b) are unwarranted. The changes are unnecessary because under the current regulations there is already a process in place under which actions deemed to have little potential impact on habitats or listed species can be proposed as such by the action agency to the Service. The Service can then concur with that determination and the consultation obligation is satisfied. Therefore, any impact on the expediency on the process will be minimal because a method of increasing expediency is already built into the system.

The inclusion of deadlines for response from the Service to an agency is a means by which, by flooding the Service with requests, an agency could stand to receive no review and thus circumvent a much needed process; even though under the proposed rule changes this review would be optional.

Overall, the proposed rule changes will have little impact on efficiency, will forfeit important reviews in instances where listed species and habitats "may" be threatened, and will require that the review process itself be so specifically and rigidly targeted so that any wide-ranging environmental impacts of an action will go un-investigated and any findings that do not show direct causality beyond the shadow of a doubt (regardless of however likely these findings may be) will be disregarded.

It is for these reasons that FWS-R9-ES-2008-0093, the "Interagency Cooperation Under the Endangered Species Act," is poor policy and should not be implemented.

There are only 3100 comments so far so please add yours too.

To add your own comment go here.


Anonymous said...

The comment period for this proposed rule has been extended until noon (EST) on November 7, 2009. Here is a direct link to the comment page:
Use this link, it is impossible to figure out how to comment once you get to the site (even if you have the docket and/or document ID).

Anonymous said...