11-09-2012 Greenwire: Still no EIS as deadline looms

Now, with only three weeks to go, the Interior Department appears to be in a tight spot. Salazar has the option of granting the farm a new 10-year lease, using the Park Service’s EIS to inform his decision.
The draft EIS found that the farm’s continued operations would negatively affect the surrounding environment. But it suffered substantial criticism for its findings — including a particularly critical report from the National Academy of Sciences — and the final EIS is nowhere to be found.
8. INTERIOR:
Still no EIS on embattled Calif. oyster farm as deadline looms for decision
Emily Yehle, E&E reporter
Published: Friday, November 9, 2012
The National Park Service has not yet issued its final environmental impact statement on a California oyster farm, leaving less than the mandated 30-day review period before Interior Secretary Ken Salazar must decide whether to allow the farm to stay in a potential wilderness area.
Drakes Bay Oyster Co. has been at the center of a roiling controversy for years over its location in the Point Reyes National Seashore. The farm has operated there for more than 70 years, but its 40-year lease with the Park Service is up Nov. 30 (Greenwire, Sept. 13).
Now, with only three weeks to go, the Interior Department appears to be in a tight spot. Salazar has the option of granting the farm a new 10-year lease, using the Park Service’s EIS to inform his decision.
The draft EIS found that the farm’s continued operations would negatively affect the surrounding environment. But it suffered substantial criticism for its findings — including a particularly critical report from the National Academy of Sciences — and the final EIS is nowhere to be found.
Under National Environmental Policy Act guidelines, an agency cannot make a decision on the proposed action until 30 days after the final EIS is released. As of today, 21 days remain until the farm’s lease expires.
But the rules are complicated by the fact that the Park Service could let the farm’s lease expire without making any decision. The farm’s owners have also argued that Salazar doesn’t need to wait for the EIS to issue a new lease.
Ryan Waterman, the farm’s attorney, wrote a letter to Salazar earlier this month arguing that Congress inserted a “general repealing clause” in the 2009 spending bill that authorized the new 10-year lease, allowing Interior to override other conflicting laws including NEPA.
“NPS’s struggle to prepare a legally adequate FEIS for your consideration has been overtaken by the passage of time,” Waterman wrote. “Despite the NPS failure to provide you with a legally adequate FEIS, Section 124 permits you to issue a SUP with the same terms and conditions as the existing authorization.”
Interior spokesman Blake Androff declined to comment on the legal implications of a late EIS, but he indicated that Salazar could still decide either way.
“The matter remains under review, and the Secretary expects to issue a decision in the coming weeks,” he said in an email. “The National Park Service engaged in a public process to collect additional information in an inclusive and transparent manner. This public input will help to inform the Secretary’s decision.”
It is no surprise that the Park Service is late in issuing a final EIS, after the National Academy of Sciences issued a report in August recommending significant changes. The NAS panel found that a lack of evidence made the conclusions in the draft EIS significantly uncertain (Greenwire, Aug. 30).
The panel also criticized the Park Service for using two baselines — one for the “no action” alternative of allowing the farm’s lease to expire, and another for the three “action” alternatives of issuing a new lease.
In other words, the Park Service compared the continued operation of the farm to a theoretical situation where the farm does not exist — and it compared the closing of the farm to the current environmental situation. That made it impossible to compare the effect of the farm’s closure to the effect of its continued operation.
Citing such criticism, the oyster farm has demanded that the Park Service redo the draft EIS altogether (Greenwire, Sept. 18).
 
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