09-18-12 Greenwire reports on demand for new sEIS

09-18-12  A California oyster farm is demanding that the Interior Department redo a draft environmental impact statement, pointing to a recent study as proof that the review is so inadequate it “precludes meaningful analysis.”



Oyster farm at heart of wilderness battle demands fresh environmental review

Emily Yehle, E&E reporter

Published: Tuesday, September 18, 2012

A California oyster farm is demanding that the Interior Department redo a draft environmental impact statement, pointing to a recent study as proof that the review is so inadequate it “precludes meaningful analysis.”

Drakes Bay Oyster Co. is facing the end of its 40-year lease in November, and Interior Secretary Ken Salazar will consider the final EIS in his decision on whether to allow the farm to stay. But a report last month from the National Research Council of the National Academy of Sciences found that a lack of evidence made the conclusions in the draft EIS significantly uncertain (Greenwire, Aug. 30).

The NAS panel did not take a position on whether the draft EIS followed requirements under the National Environmental Policy Act. But the farm is arguing that the findings in the panel’s report make it clear that the Park Service did not follow federal regulations — and that the agency must revise the draft EIS and open up another public comment period.

That would mean delaying Salazar’s decision on the farm’s lease for weeks or even months.

Ryan Waterman, the farm’s attorney, wrote in a letter to the Park Service last week that the NAS report outlined errors that “go to the very heart” of the draft EIS.

“[I]t is simple to apply the NRC Report’s highly critical structural and substantive critique of the DEIS’s scientific information, analyses, and conclusions to NEPA regulations to reach the inescapable conclusions that the entire DEIS must be revised and recirculated,” Waterman wrote. “This is so because the errors identified by the NRC Report are pervasive and effect the DEIS as a whole.”

Park Service spokesman David Barna indicated in an email that the agency was continuing as planned.

“The National Park Service received the letter from Stoel Rives regarding the report by the National Academies of Sciences,” he said, referring to the law firm where Waterman works. “As stated at the time of the report’s release, the National Park Service appreciates the work of the Academy and is reviewing the report as we work to strengthen the final EIS.”

Lucinda Low Swartz, a NEPA expert who sat on the NAS panel that wrote the report, declined to weigh in on whether the draft EIS passes NEPA muster. But she pointed out that it was still a draft; only a final EIS and subsequent record of decision can violate NEPA law, she said.

She also emphasized that the NAS report specifies that the panel’s recommendations “should not be interpreted as a conclusion that the DEIS does not meet NEPA requirements.”

“I believe the committee doesn’t want its report used as the basis of a discussion on whether what is in the EIS meets the requirements of NEPA,” she said.

But if the Park Service integrates all the NAS panel’s recommendations, it may well end up with a final EIS that is significantly different from the draft.

The panel, for example, called into question the report’s only “major adverse” finding — related to the farm’s noise levels — and suggested the impact might actually be minor. It also pointed out that the draft EIS did not contain a “negligible impact” finding nor did it include levels of “beneficial impact,” making comparisons difficult. Furthermore, the levels of “adverse impact” were not well-defined.

But perhaps the biggest criticism in the NAS report was the Park Service’s decision to use two baselines, making it impossible for the Park Service to compare the “no-action” alternative to the three “action” alternatives.

Agencies are usually able to measure the effects of a federal action off the current baseline situation. But 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.

The NAS panel recommended that the Park Service simply not compare the no-action alternative to the action alternatives in the final EIS.

But in his letter, Waterman argued that a final EIS must allow the public to compare alternatives, citing NEPA regulations that call for “sharply defining the issues and providing a clear basis for choice among options by the decision-maker and the public.”

He also pointed to numerous other findings in the NAS report, such as the fact that the draft EIS did not include “mitigation” options for decreasing the farm’s effect and that all three lease renewal alternatives are ambiguously defined.

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