Natural Resources

Fall 2011 Natural Resources Law Class at UB

Assignment #2 October 28, 2011

For this assignment, you will be participating in a Notice and Comment Process involving the National Environmental Policy Act and the Endangered Species Act. The notice below contains the pertain information regarding the Service’s proposal. You have a lot of freedom in this assignment. You can either write the comment on your own behalf or you can represent a client. I expect you to discuss both NEPA and the ESA, but under that wide umbrella you can choose which particular issues to discuss. Please confine your submission to 2,000 words (you do not need to use all 2,000). Citations are not part of the word count, but non-citation footnotes do.

[Federal Register Volume 76, Number 202 (Wednesday, October 28, 2011)]
[Pages 64966-64967]
From the Federal Register Online via the Government Printing Office []
[FR Doc No: 2011-26793]


Fish and Wildlife Service

[FWS-R5-ES-2011-N174; 50120-1112-0000-F2]

Notice of Availability of a Draft Environmental Assessment, Finding of No Significant Impact, and Receipt of an Application for an Incidental Take Permit for Karner Blue Butterfly and Frosted Elfin From National Grid

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability of draft environmental assessment,
receipt of application, and habitat conservation plan.

SUMMARY: Pursuant to section 10(a)(1)(B) of the Endangered Species Act (ESA) (16 U.S.C. 1531 et seq.) and the National Environmental Policy Act (NEPA) (42 U.S.C. 4321, et seq.) the U.S. Fish and Wildlife Service (Service or “we”) announce the availability of an application for an incidental take permit and the associated habitat conservation plan (HCP) from National Grid (NG), Syracuse, New York, and draft environmental assessment (EA) for public review and comment. We received the permit application from NG for incidental take of federally listed Karner blue butterfly (Lycaeides melissa samuelis) and frosted elfin (Callophyrs irus) over the next 50 years during operations, maintenance, and construction activities associated with electric and natural gas facilities within portions of Albany, Oneida, and Warren Counties, New York. We prepared a draft EA that describes the proposed action and a Finding of No Significant Impact (FONSI).

We provide this notice to: (1) Seek public comments on the proposed HCP; (2) seek public comments on the draft EA and our conclusion it supports a FONSI under NEPA; and (3) advise other Federal and State agencies, affected Tribes, and the public of our intent to prepare a final EA.

The proposed HCP, EA, and FONSI are being made available during a 14-day comment period. To ensure consideration, we must receive your written comments by 4pm on November 11, 2011. ADDRESSES: Send comments to Linda Kelly by electronic mail at

SUPPLEMENTARY INFORMATION: We received a permit application from NG for incidental take of federally listed Karner blue butterfly (Lycaeides melissa samuelis) and frosted elfin (Callophyrs irus) over the next 50 years during operations, maintenance, and construction activities associated with electric and natural gas facilities. A conservation program to minimize and mitigate for the incidental take would be implemented by NG as described in the draft NG HCP. We prepared a draft EA to comply with the NEPA. Based on this EA, the Service is now issuing a FONSI. This notice is provided pursuant to section 10(c) of the ESA and NEPA regulations (40 CFR 1506.6).

Availability of Documents

The proposed HCP and draft EA are available on the New York Field Office’s (NYFO) Web site at:

Section 9 of the ESA (16 U.S.C. 1531 et seq.) and its implementing regulations prohibit the “take” of animal species listed as endangered or threatened. Take is defined under the ESA as to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect listed animal species, or to attempt to engage in such conduct” (16 U.S.C. 1538). However, under section 10(a) of the ESA, we may issue permits to authorize incidental take of listed species. “Incidental take” is defined by the ESA as take that is incidental to, and not the purpose of, carrying out an otherwise lawful activity. Regulations governing incidental take permits for threatened and endangered species, respectively, are found in the Code of Federal Regulations (October 1, 2006, 50 CFR 17.22; October 1, 2001, 50 CFR 17.32).


NG is seeking a permit for the incidental take of Karner blue butterfly (Lycaeides melissa samuelis) and frosted elfin (Callophyrs irus) for a term of 50 years. Incidental take of these species may occur in patches of habitat within approximately 56.1 miles of electric transmission line right-of-way (ROW), 52.9 miles of electric sub-transmission line, 42.32 miles of gas lines located in ROWs, and 8.41 miles of distribution line ROW (covered lands) within portions of Albany, Oneida, and Warren Counties, New York.


Where multiple electric lines are located parallel in the same ROW, the length has only been counted once. Where a gas pipeline is located adjacent to an electric transmission line, both lengths have been counted. An additional 28 acres of mitigation lands are also included as covered lands. The covered activities may result in the permanent loss of 35 acres of occupied habitat and periodic temporary disturbance of 293 acres of occupied habitat during the term of the permit.

Proposed covered activities include operations, maintenance, reconstruction, and new construction of electric transmission, sub-transmission, and distribution structures and substations, as well as underground natural gas pipelines and associated aboveground gas regulator stations and valve sites.

The HCP’s proposed conservation strategy is designed to avoid, minimize, and mitigate the impacts of covered activities on the covered species. The biological goals and objectives are to complement the existing conservation efforts in New York State for the butterflies by

(a) Focusing mitigation/restoration/enhancement efforts within the Albany Pine Bush and Queensbury viable butterfly populations where corridor connections can be made and larger habitats of wild blue lupine can be developed;
(b) working with non-governmental organizations in the area with an interest in protecting butterfly habitat;
(c) avoiding and minimizing negative effects and actions;
(d) promoting education and outreach; and
(e) ensuring that the amount of habitat for the covered species within the covered lands does not drop below the 2006 Baseline Survey acreage.


The HCP provides a mechanism to supply funding for a small range of conservation measures targeting the butterflies and the ecosystems that support them. Conservation measures proposed include implementation of avoidance and minimization measures to ensure continued existence of the butterflies within the covered lands, creation of a 5-acre, off-ROW preserve, and creation and/or enhancement of up to 23 acres of ROW habitat. The Proposed Action consists of the issuance of an incidental take permit and implementation of the proposed HCP. Two other alternatives to the proposed action were considered in the HCP: no action (i.e., the incidental take permit for Karner blue butterfly and frosted elfin would not be issued and the HCP would not be implemented), and avoiding or reducing the performance of infrastructure repairs and replacements. However, these two alternative actions were eliminated from further consideration, due to logistical and public safety considerations, and the associated regulatory and business-related obligations to continue providing reliable electricity and natural gas service to NG’s customers. NG has developed an implementation agreement (IA) that ensures proper implementation of each of the terms and conditions of the HCP and describes the applicable remedies and recourse should any party fail to perform its obligations, responsibilities, and tasks. The IA is being included with the proposed HCP for public review.

National Environmental Policy Act

In compliance with the NEPA of 1969, we analyzed the impacts of implementing the HCP. Based on this analysis, we have determined that there will be no significant impacts or effects caused by issuing the incidental take permit. We have prepared a draft EA on this proposed action and a Finding of No Significant Impact (FONSI).

Next Steps

We will evaluate the plan and comments we receive to determine whether the permit application meets the requirements of section 10(a) of the ESA (16 U.S.C. 1531 et seq.). We have already determined that there is no need for an intra-Service section 7 consultation. We will use the results of this comment period to determine whether to issue a permit. If the requirements are met, we will issue the permit to the applicant.

Public Comments

The Service invites the public to comment on the proposed HCP, draft EA, and FONSI during a 14-day public comment period ending on November 11,2011. All comments (which may not exceed 2,000 words) received will become part of the administrative record and may be made available to the public. Do not include your address, phone number, e-mail address, or other personal identifying information in your comment. Please include your assigned exam number on the top of each page and remember to number each page.

Dated: October 28, 2011.
Jessica Owley,
Acting Regional Director, Region 5.
[FR Doc. 2011-26793 Filed 10-18-11; 8:45 am]


18 Responses to “Assignment #2”

  1. Question From a Class Member: I would like to know if we are supposed to consider the actual draft Environmental Assessment and Finding of No Significant Impact (noted in the assignment under “Availability of Documents”). I thought we obviously did; but a classmate tells me we obviously don’t.

    My Response: Yes! Please look at the associated documents. I am not sure how much you could even write here without referring to them. The only thing I warned you against looking at is the original FR Notice of Availability because it has different details regarding submission of comments, etc.

  2. minderlern25 Says:

    What was the website you gave us in class that showed examples of comments written?

  3. Question from a Class Member: I was wondering if there is a way to see all of the comments so far posted by other people on this exact proposal. I think it would help my analysis.

    Response: There may be something on, but it may not be possible to see them all until the comments period is closed. Frankly, I don’t know. Poke around on the website or ask a reference librarian.

  4. Question from a Class Member: As I’ve been reading the National Grid HCP and EA, I’m still left wondering how exactly I should comment on the two documents as well as articulately weave NEPA and the ESA into it. Currently is undergoing site maintenance and I am unable to view other comments, but could I just say that the HCP and EA comply with the statutory requirements to enumerate/discuss mitigation/minimization/reporting etc? I would really appreciate any clarification you could give me.

    Response: I don’t think there is any need to actually look at or to look at comments on this specific proposal. Some folks may find it helpful but a few others told me it just confused them more. I have given you all a lot of freedom in this assignment, which has been exciting for some and scary for others (perhaps a bit of both, no?). I am not going to give you much direction on what to say in your comment. You need to talk about both the ESA and NEPA in some form. It could be to say that you support the project and it appears that they conformed with the law every step of the way. It could be to point out concerns you have about the process or substance of the documents. Discussing NEPA and ESA documents qualifies as discussing ESA and NEPA in my book.

  5. minderlern25 Says:

    After reading through some of the HCP EA and there FONSI, do we have to specifically cite to the document or just state generally what it is saying and how we agree or refute it?

    • That one depends on you. I can see where for some arguments, it could be helpful to cite certain sections or phrases with the documents. But other arguments might be more general. For example, maybe you want to argue that the EA didn’t consider enough alternatives. You could argue generally that the number of alternatives was inadequate with only a reference to the EA (or perhaps to the alternatives section ). Or perhaps you want to argue that a particular alternative was flawed. In that case you would need to cite that alternative and might even end up quoting language from the EA.

  6. Question from a Class Member: I have two questions about our public comment letter: first, should it take the form of a straightforward legal analysis, an advocacy piece, or something in between? Do we have fairly wide discretion in the “tone” we use?

    Piggybacking that, is there room for conclusions or conclusory statements that may not have a direct basis in law, but are based more on our opinions as concerned residents of New York? Putting it another way, is articulating a “gut reaction” appropriate here?

    Response: Yes, you have fairly wide discretion. I want to see you discuss the law / legal issues but you can decide whether it makes sense for you to be an advocate for a certain position or client or something else. Harder for me to answer this second question without understanding exactly what you mean but I think the answer is also yes. You can absolutely talk from your standpoint as a NY resident or concerned citizen. It would be perfectly acceptable for example to say something like “The people of my town are sick and tired of these restraints on development caused by the presence of some little butterfly none of us have ever seen” or perhaps “NY has failed to protect its environment time and time again. This project is but another in a long line of environmental abuses.” BUT phrases like this should just frame issues and positions, not form the bulk of your paper.

  7. Question from a classmate: I was just wondering—are we to assume for the purposes of the assignment FWS has already issued a FONSI? In reality they haven’t. First they solicit comments on the draft EA, then they choose an alternative, then they do a final EA and accompanying FONSI right? So they haven’t (yet) complied with NEPA’s “significant impact” analysis from 40 C.F.R. § 1508.27. It seems like the assignment places us further along in the process than FWS actually is? I wouldn’t exactly want to fault them for not doing what they haven’t yet undertaken to do?

    Response: It seems possible to me that there are inconsistency between the FR notice (above), the law, available documents, and perhaps other issues. Those seem like viable things to comment on to me. No need to assume anything has been done. Look at the FR above and the available documents. It is possible that the FWS has made mistakes either in the FR notice or in the website.

  8. Question from a Classmate: I am really struggling to try and figure out what to write for this second memo. I keep deleting everything that I start to write. I know you said that their is a lot of freedom, but I am one of the one’s that that scares very much. I feel like I keep agreeing with what the FWS did with the EA but I don’t know how to use NEPA and ESA to basically just say that I agree what was in the EA and HCP. I just keep writing like the law and steps of what an agency must do for a NEPA process and then using what’s in the EA to back that up, is that OK? Sorry, I am just completely confused on what to do! Hopefully you can help but if not I completely understand.

    Response: It can be pretty intimidating to look at an agency’s process and documents and try to figure out whether there is anything to say about them. This is a very common task for an environmental / natural resources practitioner. You may have a client that you know is worried about particular issues and then you look for those, or you may have a client eager to slow development and looking for reasons to challenge ESA/NEPA documents. However, it is also acceptable to write a comment applauding the agency for a job well done. Perhaps you think this is a model EA and the agency deserves some praise. Perhaps you have issues with NEPA generally and want to use this case to illustrate some of your concerns. Maybe you want to talk about the substance of the documents but you may also want to address procedure. Your only requirement here is to talk about NEPA and ESA in some way. It may be that you want to explain to others likely to read the comments what a great job FWS has done.

  9. bfentriss Says:

    I just have a few questions (that I hope aren’t too silly…)

    1) Since both the HCP and EA are rather large documents, and we only have 2000 words, can we just focus on parts of the HCP and EA, instead of trying to incorporate the whole document in our comment? For example, can we just focus on the validity of the proposed alternatives of the HCP and EA and whether a FONSI is warranted, or would that be too specific?

    2) Should we rely mostly on statutes and the facts, or can we bring in some of the case law we’ve read for class? For example, since the HCP/EA has already mentioned some of the pertinent sections of NEPA and the ESA, it might be easier to add some analysis from case law to show if they used the acts correctly.

    3) Do we have to give equal weight to NEPA and ESA? For example, if I took the position that the NEPA process was fine but this violated parts of the ESA, and therefore wanted to focus primarily on the ESA, would that be OK?

    Thank you!

    • (1) Absolutely! You could just focus on one section or one issue for NEPA or ESA. In the example, I gave above and in class — I could envision someone just writing a critique of the alternatives section of the EA. Discussing whether a FONSI is warranted sounds like a good issue to me.

      (2) Adding case law is always good. Use whatever helps you make your point or strengthen your argument. That could be statutes, regulations, caselaw, articles, etc. As always, try to use the best sources for your arguments.

      (3) No need to give equal weight to ESA and NEPA. The only requirement I have placed on you is that you discuss both in some way.

  10. amandahu0909 Says:

    I seem to be having some of the same troubles as my classmates, but I am still not clear on what to do for this assignment. In my paper, I talk about the standards/requirements of NEPA and the ESA, and then go on a long writing spree on why I personally do not think the EA and HCP are adequate. Mostly, things like the documents are vague or unclear on certain things. I feel like my issues with the documents may be slightly more rooted in my personal dislike for the drafting than because of actual compliance with NEPA and the ESA. I guess I am afraid my critiques of the documents may be a little too personal and are taking up the bulk of the paper (which you said not to do in an above post). Do my feelings about the EA and HCP really matter? Given this is a public comment I would think so, but at the same time I am not sure how to find the correct balance between what I think of the project plans and the law.

    Is it okay to write I think certain sections need to be more specific because the “public” is left feeling unclear about what National Grid is actually going to do?

    Sorry if this is confusing. Thank you.

    • This actually sounds like a good approach to me. Your feeling and thoughts on these issues matter in a comment. What I want to caution you against is 2000 words of railing against all development without any discussion of law or policy.

      For Example: If you think the HCP process is bad policy, you can use your comment to say that. You could say you think they shouldn’t be allowed or that they should be better or something. You could then refer back to this HCP periodically in structuring the argument. Or perhaps you like the idea of HCPs but don’t like this HCP. You could set forth what should be in an HCP (based on law/policy) and then explain why this one doesn’t match up.

  11. amandahu0909 Says:

    Assignment 2 says “there is no need for an intra-Service section 7 consultation.” Does this mean it is not necessary to discuss jeopardy and adverse habitat modification in the memo because those are elements of Section 7?

    Thank you.

  12. csszczyg Says:

    I actually enjoyed this project — I pretended to be a normal person instead of a law student.

    Just for the sake of flow, I tried to use all textual citations instead of more formal bluebook legal citations. Is that acceptable?

  13. Question from a classmate: One quick question about the second assignment. Is it ok to talk about Section 7 of the ESA even though the notice says that the FWS has already determined it isn’t necessary?

    Response: Yes!

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