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Re: E-M:/ EM: Saginaw River dredging



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Enviro-Mich message from "david zaber" <dzaber@gateway.net>
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Dear Ms. Spencer and Others,

The failure of the Army Corps of Engineers to do a complete EIS is typical
of that agency. As you stated in your original message, there are indeed
risks from CDFs laden with neurotoxic, carcinogenic, teratogenic and
biocidal toxins.  Avian species do bioaccumulate these materials as they
recirculate through the environment.  Whether the risk of leaving the
contaminants in the river is greater then the risk of dredging and
"disposing" of them in the CDFs may be beside the point.  

Why?  Well, when the FWS decides that only a small number of alternatives
are available for consideration, they have bounded the rationality and
decision-making capability of the experts.  Its like the U.S. Forest
Service in the Ottawa NF never proposing an ecological restoration
alternative for their land management proposals.  What they do is give a
"No Action" alternative (which they NEVER select) and the "log the %&*# out
of the public's land" alternative.  Once in a while, they will throw in a
third alternative to make it seem like they are actually complying with
NEPA, the Federal statute that mandates the EIS/EA process.

In this case, the FWS and ACOE appears to have shortchanged the public by
eliminating alternative treatments under the guise of funding constraints. 
That's funny since there seems to be lots of cash available for things like
bailing out pork producers, independent persecutors (no mistake there,
folks) and new NAFTA highways such as the ultra-destructive I-69 proposal
(the Lansing to Laredo boondoggle).  

If one wants to see exactly how bad the ACOE is on the NEPA thing, check
out the EIS for the Chattoga watershed projects near Atlanta.  Even U.S.
Rep. Bob Barr (a notorious anti-enviro) told the ACOE they had to do
another EIS.  Remember, these are the same folks who would be out of a job
were it not for the plethora of bad projects they propose and instigate;
It's only pork when its not your own job.

Additionally, if the muds are non-toxic, then why not spread them on the
lawns of the Michigan Governor's mansion and the lawns of his cronies in
the DEQ/DNR?  After all, if it is safe enough for the largest source of
freshwater, then is should be safe enough for Engler and his ilk.

Note:  

"An alternative that is outside the legal jurisdiction of the lead agency
must still be analyzed in the EIS if it is reasonable".
>From : Forty Most Asked Questions Concerning CEQ's NEPA Regulations, 46
Fed. Reg. 18026, 18027 (March 23, 1981).

Thus, if ACOE uses the EA process to issue a FONSI (Finding of No
Significant Impact), they don't have to do an EIS and do not have to
analyze alternatives that may be better then either leaving the sediments
in place or the temporary "fix" of CDF disposal.

Also,

"NEPA requires that federal agencies consider alternatives to recommended
actions whenever those actions 'involve unresolved conflicts among
alternative uses of available resources.' 4 USC 4332(2)(E)(1982)....
[C]onsideration of alternatives is critical to the goals of NEPA even where
a proposed action does not trigger the EIS process.  This is reflected in
the structure of the statute: while an EIS must also include alternatives
to the proposed action, 42 USC 4332(2)(C)(iii) (1982), the consideration of
alternatives requirement is contained in a separate subsection of the
statute and therefore constitutes an independent requirement.  See id.
4332(2)(E).  The language and effect of the two subsections also indicate
that the consideration of alternatives requirement is of wider scope than
the EIS requirement.  The former applies whenever an action involves
conflicts, while the latter does not come into playunless the action will
have significant environmental effect.  An EIS is required where there has
been an irretrievable commitment of resources, but unresolved conflicts as
to the proper use of available resources may exist well before that point. 
Thus, the consideration of alternatives requirement is both independent of,
and broader than, the EIS requirement"  Bob Marshall Alliance v. Hodel 852
F.2d 1223, 1228-29 (9th Cir. 1988).

Seems pretty clear to me that artificially constraining the set of
alternatives in such a way that only one alternative is actually feasible
does not jive well with the law.  But heck, I am only a single person who
cares whether the "fix" lasts beyond the next political cycle.

Opps.  Almost forgot:  Ms. Spencer mentioned that she was unable to answer
questions regarding destruction of barriers by trees.  This is unfortunate
since:

"The purpose of NEPA is to assure that federal agencies are fully aware of
the present and future environmental impact of their decisions. 
Additionally, the perparation of an EIS ensure that other officials,
Congress, and the public can evaluate the environmental consequences
independently." Columbia Basin Land Protection Ass'n v. Schlesinger, 643
F.2d 585, 592 (9th Cir. 1981).  

The Federal Administrative Procedures Act, 5 USC 706(2)(A), prohibits an
agency from acting in an arbitrary and capricious fashion.  Fair and honest
procedures are also an element of complying with NEPA.  Under NEPA
regulations, and EIS "shall provide full and fair discussion of significant
environmental impacts." 40 CFR 1502.1.

To assure that a "fair discussion" occurs, agencies are required to obtain
"high quality" information, including "[a]ccurate scientific analysis." 40
CFR 1500.1(b). The regulations are very explicit that: "Agencies shall
insure the professional integrity, including scientific integrity, of the
discussions and analyses in environmental impact statements." 40 CFR
1502.24.

NEPA and applicable regulations require that agencies disclose in EISs the
basic information necessary for informed decisionmaking and public
participation.  Save our Ecosystems v. Clark,  747 F.2d at 1244, n.5.

Under NEPA, an environmental impact statement must contain a discussion of
"alternatives to the proposed action." 42 USC 4332(2)(D).  As interpreted
by the binding regulations of the CEQ, an EIS must "[r]igorously explore
and objectively evaluate all reasonable alternatives." 42 CFR 1502.14(a).  

Have a happy holiday

David John Zaber
dzaber@gateway.net

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