[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>
<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?


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

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