[Coral-List] Majuro video
SavercoolD at aol.com
SavercoolD at aol.com
Tue Jan 8 09:44:35 EST 2013
I provided the following information privately to Dean Jacobson this past
March -- not wanting to bore the group with too much regulatory
mumbo-jumbo, but since regulations and policy are now being discussed, I figure it's
time to throw in my 2-cents. While reading, please keep in mind that I am a
scientist (estuarine benthic ecologist by training and practice) but have
spent the past 30 or so years trying to navigate the environmental
regulatory minefields in the US.
Given that the Marshall Islands are not a US Territory or Commonwealth, I
don't believe they are required to follow US law and policy (unlike Guam,
CNMI, American Samoa, and the US possessions of Baker, Howland, Kingman
Reef, Jarvis, Johnston, Midway, Palmyra, and Wake Islands - not counting those
in the Atlantic and Caribbean). As such, it seems as if the National
Environmental Policy Act (NEPA) is silent regarding operations outside US
properties (Territories, possessions, and Commonwealths). Also, the EO that you
refer (13089) for the protection of coral reefs is not the order to focus
on for this issue – it too is silent about properties outside the US.
Instead, focus on EO 12114, Environmental Effects Abroad of Major Federal
Actions. This is the EO of concern.
Since some of the funding is originating from the FAA, FAA Orders 1050.1E
(Environmental Impacts: Policies and Procedures) and 5050-4B (National
Environmental Policy Act (NEPA) Implementing Instructions for Airport Actions)
are relevant. FAA Order 1050.1E primarily discusses FAA’s interpretation
of the Council on Environmental Quality’s (CEQ) NEPA language. But FAA
Order 5050-4B, and in particular section 208 – Airport Actions Significantly
Affecting a Foreign Country directs FAA's procedures for implementing NEPA in
foreign countries.
Forgive me if you already know this, but let me provide a bit of general
background. In the 1960’s the US government began to develop environmental
regulations and policies for actions undertaken by the US federal
government. They tasked a group with developing regulatory language that all
federal agencies will have to follow. That group was CEQ. When NEPA was
written, CEQ stated that these (the actions within NEPA) are overarching actions
that all federal agencies must follow, but they (CEQ) recognized that each
federal agency has their own mission and each federal agency should develop
policy to follow NEPA that fits their specific agency mission. For the
FAA, that policy is FAA Order 5050-4B. With FAA Order 5050-4B written, FAA
wrote another policy (FAA Order 1050.1E) regarding the format and content of
the specific documents (Environmental Assessments and Environmental Impact
Statements) – what they should look like in written form. So, I mention
FAA Order 1050.1E really only for your background but it really doesn't
provide any information for the issue at hand. The CEQ regulations for NEPA
state that the federal agency who is providing the funding for a project
(regardless of its location in the world) is the US governments’ federal
proponent. Therefore, since FAA is providing the funding to the Marshall Islands,
FAA NEPA policy is the primary regulatory guidance for this project.
FAA Order 5050-4B (section 208) does clearly state that the FAA must
undertake an assessment of the environmental impacts associated with the runway
expansion project in Majuro. In reading through all the regulatory
minutia, including EO 12114, it states that the federal proponent (in this case
FAA) shall work through the US Department of State for the environmental
assessment (notice the use of lower case letters in environmental assessment –
I am referring to an assessment of the environment and not an Environmental
Assessment in the NEPA realm). Further research into the policies shows
that the name of the NEPA documents for these actions on foreign lands are
called “Overseas Environmental Assessment” and “Overseas Environmental
Impact Statement”.
So, CEQ NEPA regulations states that US government agencies must follow
the National Environmental Policy Act, and each agency is supposed to produce
more detailed policy on how that agency will follow NEPA. Also, the
President of the United States signed Executive Order 12114, specifically
focusing on airport actions (by FAA) that significantly affect a foreign country.
Since it is the FAA who is providing the US money for the project, it is
FAA’s NEPA policy that is the regulatory guidance. That is FAA Order
5050-4B. FAA Order 5050-4B clearly states that an assessment is required.
Now, FAA will decide if the project is small enough to be covered in an
Environmental Assessment or if the impacts are of such magnitude they should
be addressed in an Environmental Impact Statement. That decision is solely
made by FAA. Yes, others may say that they have a vote in the decision,
but it is the lead federal agency (in this case FAA) who will actually sign
the document. Whichever document they produce, since it is for an overseas
location, it will be called an “Overseas Environmental Assessment” or an
“Overseas Environmental Impact Statement”. FAA should submit that
document (including the signed Finding of No Significant Impact if it is an
Overseas Environmental Assessment or a Record of Decision if it is an Overseas
Environmental Impact Statement) to the US Department of State, who will then
submit it to the Government of the Marshall Islands Embassy (if there is
one in Washington, DC that is the Embassy where it will be delivered and
stored). The Marshal Islands Embassy will receive and store the document..
I have found that when dealing with regulatory issues, if you quote the
correct regulation and specific section of the regulation it forces people
(the decision makers and elected officials) to listen. But, if you quote the
wrong regulation, they know you are wrong and are not a force to be
reckoned with.
Keep in mind that NEPA will not stop a project; if anything it will force
the proponent to revise components of the project to reduce the
environmental impacts. The Environmental Assessment process will analyze the action’s
impact to resources and conclude that there are no significant impacts
(and in this case the Finding of No Significant Impact [FONSI] statement will
be signed by FAA) or that the impacts are of such magnitude that a Notice
of Intent (NOI) to conduct an Environmental Impact Statement (much more
detailed analysis of the project impacts on the resources) will be issued.
Once the EIS is completed, a Record of Decision will be signed by FAA. An EIS
and ROD can show that there will be significant impacts to the resources
and the project will be able to move forward. But, the purpose of the EIS
process is to make the impacts known so we can try (but aren't required by
regulation) to offset those negative impacts. Proponents will attempt to
offset impacts identified in a ROD as means to save face with the media and
citizens, but they really are not required to offset the impacts that are
identified in the ROD. Many proponents do not want to spend the time or
money to undertake an EIS, so they opt for the EA route. But keep in mind that
the two possible outcomes of an EA are a FONSI or a NOI. To make sure the
impacts to resources are deemed not significant, the proponent will often
propose mitigation to offset or decrease the severity of the proposed
action on the resources. We call this a “mitigated FONSI”, which means our
initial analysis indicates there are significant impacts by our proposed
action, but we don't have the time or money to go the EIS route. So we offer to
offset those impacts resulting in a “no significant impact” conclusion
and we can move forward with only writing an EA. It typically takes 4-12
months to write and EA (from start to signing the FONSI) and about 2-3 years
to write an EIS (from start to issuing the ROD). An EIS often costs an
order of magnitude greater than an EA. So there are obvious time and financial
reasons for a proponent to keep their project in the EA realm (and they do
that by proposing mitigation if the projects’ impacts are initially deemed
significant). The traditional mitigation for the Majuro project will be
to move coral to another location. I am sure you are following the military
build-up in Guam. That is exactly what the Navy is proposing to do to
offset their impacts to corals in Apra Harbor by their proposed dredging
operation to accommodate larger ships and create new wharves - although there is
word that the Navy has just removed the CVN pier project (the component
that would result in the greatest coral impacts from the build-up) from the
build-up ROD.
Daniel M. Savercool, CSE
Senior Scientist
EA Engineering, Science, and Technology
225 Schilling Circle
Hunt Valley, MD 21031
Mobile: 240-793-5455
Guam Mobile: 671-988-6075
In a message dated 1/8/2013 7:31:37 A.M. Eastern Standard Time,
coral-list-request at coral.aoml.noaa.gov writes:
------------------------------
Message: 3
Date: Mon, 7 Jan 2013 13:36:36 -0500
From: "Szmant, Alina" <szmanta at uncw.edu>
Subject: Re: [Coral-List] Majuro video
To: Dennis Hubbard <dennis.hubbard at oberlin.edu>, Dean Jacobson
<atolldino at yahoo.com>
Cc: coral list <coral-list at coral.aoml.noaa.gov>
Message-ID:
<68ECDB295FC42D4C98B223E75A854025DA21F971CE at uncwexmb2.dcs.uncw.edu>
Content-Type: text/plain; charset="us-ascii"
Hi Dennis:
President Clinton signed back in 1998 a Presidential Executive order
protecting coral reefs. This Exec Order requires every federal agency to
self-examine and reduce any damage to corals for everything they do that could
potentially affect coral reef condition. A committee named the US Coral Reef
Task Force was established and consisted of the heads of all of the
Executive Branch departments (or their designates)and other Federal Agency heads.
This includes the FAA. It was initially chaired I believe by Sec. of
Interior Bruce Babbitt, a committed environmentalist. I attended several of the
early Coral Reef Task Force meetings, and it really seemed that there was
some serious dialogue going on. I recall discussions with high up US Navy
and other military folks about their impacts on coral reefs (e.g. practice
bombing in Vieques), and lots of fisheries regulation discussions. I have
not been to these meetings for a while now, but see postings that they are
still happening.
Unless Presidential Orders expire, that Task Force should still be in
force and in fact, has the responsibility to decide whether the FAA is
authorized to cause major coral destruction for a greater (national security) good.
Does anyone know if the US Coral Reef Task Force officially sanctioned
this dredging? Is there circumvention of an official US policy going on?
Alina
*************************************************************************
Dr. Alina M. Szmant
Professor of Marine Biology
Center for Marine Science and Dept of Biology and Marine Biology
University of North Carolina Wilmington
5600 Marvin Moss Ln
Wilmington NC 28409 USA
tel: 910-962-2362 fax: 910-962-2410 cell: 910-200-3913
http://people.uncw.edu/szmanta
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