Public Notice and Comment

Posted: Sep 23, 2010

The most common way of engaging the public in environmental decision-making is by providing them with notice of proposed projects (plans), decisions, and rules along with the opportunity (information on how) to comment. One of the oldest approaches to engaging the public in decision-making, notice and comment dates as far back as the passage of the Administrative Procedures Act, enacted in 1946. While the process may seem unnecessarily formal, ideally it offers all commenters equal access to the agency and a predictable forum for interested parties to have input on decisions that may impact their lives and livelihoods. The comments—and the agency's response to comments—also promote agency accountability. Because public comments and the agency's response are a matter of public record, they help to illuminate the issues and how the agency thinks about them.

The process of providing notice and comment is also a cornerstone in the implementation of many environmental laws. The process is required for environmental analysis under the National Environmental Policy Act (NEPA), when creating or amending most substantive rules (agency regulations), and in many permitting processes.

Environmental Analysis Under NEPA

Most prominent among the statutes requiring notice and comment is NEPA , which requires federal agencies to prepare environmental impact statements (EIS) on "major federal actions significantly affecting the quality of the human environment." Regulations of the Council on Environmental Quality (CEQ) specify requirements and options for providing notice and minimum timetables for soliciting comments on draft and final EISs. While federal agencies prepare only a few hundred EISs each year, they prepare thousands of environmental assessments (EAs) either as a precursor to an EIS or where EISs are not required. 

Although NEPA does not mandate public participation for EAs, it is routinely sought by the agency. Furthermore, the EA/EIS process has become the vehicle through which the public participates in actions involving many other federal laws, including for example, the Endangered Species Act and the National Forest Management Act. 
Forest Service Notice and Comment Requirements

The Forest Service has different notice and comment regulatory requirements.

  • For proposed actions for projects and activities implementing a land and resource management plan, including non-significant amendments to plans and research activities, unless the activity is categorically excluded from NEPA analysis (36 CFR part 215)
  • For land and resource management plans, amendments and revisions that may be subject to different notice, comment and objection processes (depending on which rule is implemented; see, Process Essentials: Public Participation in Forest Planning)
  • For formulation of Forest Service directives (36 CFR Part 216) having different requirements for ranger district, regional and national level directives. (Interim directives may be issued without opportunity for public comment.)
  • For rules promulgated in accordance with the APA (5 USC §553)
  • For hazardous fuel reduction projects authorized by the Healthy Forests Restoration Act of 2003 (36 CFR Part 218) (see box, below).

Rulemaking

Federal regulatory agencies—such as the Forest Service, Bureau of Land Management (BLM), Fish and Wildlife Service (FWS), and the Environmental Protection Agency (EPA)—are empowered to create and enforce rules (or regulations) that carry the full force of law. Agencies create their regulations through the federal rulemaking process. After Congress passes a law , the appropriate regulatory agency then creates regulations needed to implement the law. For example, the BLM develops its regulations under the Federal Land Policy and Management Act (FLPMA) . In creating their rules, agencies must be consistent with their organic legislation (e.g., FLPMA for BLM) but must also follow requirements of the Administrative Procedures Act (APA). 

Under the APA, agencies must publish most proposed new and revised regulations in the Federal Register, and they must provide a way for interested parties to comment on the proposals. Once the agency finalizes a rule, it is printed again in the Federal Register, incorporated into the Code of Federal Regulations (CFR), and has the force of law.

While basic APA requirements apply to most rulemaking (creation of substantive rules), the APA's notice and comment requirements do not apply to agency interpretive rules, procedural rules or statements of policy. This exception can result in controversial agency action—not subject to the controls of notice and comment rulemaking. 

In contrast, some statutes have their own, very specific requirements for notice and comment in rulemaking. The Clean Air Act, for example, specifies procedures for giving notice, receiving and reviewing comments, making comments available to the public, and how those comments are used in promulgating a final rule. 
APA -- Notice and Comment Procedures
[5 USC §553(b) and (c)]
(b) General notice of proposed rule making shall be published in the Federal Register...
(c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation.

Scope of the APA
[5 USC §553(b)]
The APA section on notice and comment for rulemakings does not apply:
(A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or
(B) when the agency for good cause finds … that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.

Permitting

Interpretive Rule Exception
A few controversial examples of agency interpretations of law legitimately made without notice and comment:

  • Secretary of the Interior restricting lands to be considered for Wilderness designation
  • EPA's methodology for determining what constitutes a "wetland"
  • EPA's definition of "reasonably available control technology" under the Clean Air Act

Notice and comment processes are also important to the day to day implementation of a statute. For example, the Clean Air Act, requires agencies to give notice and accept comments in their stationary source permit application process. Endangered Species Act regulations mandate notice and comment opportunities before the FWS issues take permits. In contrast, the Clean Water Act requires agencies to give notice and an opportunity for a hearing before issuing "dredge and fill permits" under section 404, "point source discharge" permits under section 402, and state water quality certifications under section 401. Similarly, the Wilderness Act requires public notice and a hearing prior to the Secretary of Agriculture or Secretary of the Interior recommends areas for wilderness designation to Congress. 

[Note: We will discuss public hearings along with public meetings and other public participation gatherings in a future installment of this Tools Series.]

Healthy Forests Restoration Act (HFRA)—Innovations in Public Participation?
The HFRA does not require traditional notice and opportunity to comment on all hazardous fuels projects. But the law does identify opportunities for public notice, meetings, and collaboration. According to HFRA, the agency must:

  • Provide an opportunity for public comment during the preparation of any EA or EIS done on an authorized project, but no comment periods are required when projects are categorically excluded from NEPA analysis;
  • Conduct a public meeting regarding all authorized projects;
  • Facilitate collaboration among governments and participation of interested persons, during the preparation of each project;
  • Give notice of each authorized hazardous fuel reduction project;
  • Provide notice of the final agency actions authorizing projects. 
    (16 USC §6514 (e - h))

'Notice and comment' opportunities have been the mainstay of public participation in public lands management. Some of the new laws, for example the Healthy Forests Restoration Act, are experimenting with other requirements and opportunities. 

The Notice and Comment Process

The general federal notice and comment process is as follows (similar processes apply to state and local matters as well):

  1. The agency with jurisdiction over the issue will publish a notice of the proposal in the Federal Register or State Register (for example, see the Colorado Register, theMontana Administrative Register, or the Arizona Administrative Register). The notice will include a summary of the proposal, dates for public hearings, deadlines and directions for submitting comments, summary of previous federal actions, and other background information.
  2. The public can then consider the proposed action and send their comments to the agency. Agencies still accept comments by mail and fax (unless specifically excluded in the notice), but comments are also accepted by email (see the specific notice for the proper address) and via a special website for comments on regulations and many other topics: www.regulations.gov.
  3. As part of the commenting process, the agency may hold public hearings where anyone with an interest in the issue can provide oral comments for the agency to consider as part of the record. [Note: More discussion on public hearings and public meetings will be included in another installment of the series.]
  4. After reviewing the comments, the agency may revise the proposed action accordingly and then issue a final plan, decision, or rule.

A Sample of Notices with Requests for Comment

Commenting 101

Material for this section was drawn from The Art of Commenting: How to Influence Environmental Decisionmaking with Effective Comments, Environmental Law Institute (2000). Elizabeth D. Mullin. and A Citizen's Guide to the National Environmental Policy Act, Council on Environmental Quality (2007)

A Quick Guide to Commenting Effectively

You have decided you care about an issue and are motivated to participate in the commenting process-now what? Where should you go to find information? What should you say and how should you say it? 

The guide below will walk you through the process and provide some tips on how to effectively participate in the process. Many organizations and interest groups provide opportunities to "sign on" to pre-formulated comments expressing that entity's position on a particular issue. While this can be useful in demonstrating public sentiment, agencies pay closer attention to original, substantive comments. This guide is intended to help you compose the latter. 

Note: This guide highlights federal environmental law; however, the same process applies to state and local matters as well. 

Must your comments be "substantive"? Not necessarily. 
Forest Service regulations regarding appeal of National Forest system projects and activities, promulgated in 2003 (68 Federal Register 33,582) include a requirement that individuals must have submitted "substantive comments" to be eligible to appeal a final agency decision (36 CFR 215.5, 215.6 and 215.13

In April 2006, The Wilderness Society convinced a judge in Montana that this requirement was contrary to the Forest Service Decision-making and Appeals Reform Act (16 U.S.C. § 1612 note.) The judge enjoined the rule, on a nationwide basis, from being implemented. See "Judge blocks Bush admin rule limiting appeals of timber sales." 

While this judicial decision preserves your right to appeal this type of project regardless of whether your comments are "substantive" or primarily offer an opinion, providing substantive comments is usually a better option. They may be more effective in convincing the agency to change a decision sufficiently to avoid having to escalate to the appeal process. [Note: Appeal processes will be discussed in a later edition of the Tools Series.] 
Examples of documents to review

Statutes- Statutes are legally binding. There may be grounds for a lawsuit if the document is not consistent with the applicable statutes. To get the attention of the reader, you can and should quote the statute in your comments. Demonstrating that the law mandates a certain change in the proposal is a compelling argument. 

Regulations- Regulations are also legally binding for both the implementing agency and the regulated community. Regulations are the rules, procedure, and administrative codes that are set by authorities or government agencies to implement major federal and many state laws. After public review and comment, government agencies write and formally adopt regulations to explain how a law will be implemented. 

Materials and guidance- Guidance is not legally binding, unless it is made so though an administrative order, court order, or consent decree. Government agencies often prepare materials and guidance (handbooks, policies, guidelines, or other materials) to help implement and explain their laws and programs. If guidance supports your position, you should use it to support your arguments. If it does not, you can try to demonstrate why the agency should or should not follow its own guidance in your particular instance. These materials may also provide background information and other useful references. 

For additional information, see Know the Law for a summary of laws, regulations and guidance that may be applicable to your issue. Please let us know if your topic of interest is missing.

Before the Comment Period

Much time, energy, effort, and money are spent well before a public comment period even begins. Once you get a copy of the document describing the proposed project or agency action, there is almost never enough time to comment. Comments are almost always subject to tight deadlines. Before you even have access to a proposal, there are several things you can do to maximize your time during the comment period. 

1. Make contacts. Having contacts inside the agency and out is essential. For government outsiders, try to establish a staff contact at the agency. Call the agency or check the agency website to find the person responsible for your issue. Ask for meetings with pertinent staff and decision-makers about the scope and substance of the coming action. Outside the agency, make contact with other people interested in or responsible for your issue. Look for allies in non-profit organizations, public meetings, and the letters to the editor section of the local paper. Keep in touch with these contacts throughout the process. 

2. Track agency actions. For federal actions, you can track opportunities for comment through the Federal Register, agency websites, various publications that report on current environmental events (such as Greenwire and High Country News), and by placing your name on distribution lists. [See the links under the "Additional Resources" heading below for more information.] Tracking where agencies are in the formal process ensures that you will be in the know when the comment period begins.

3. Review background material. Before the comment period begins, it is useful to determine what information should be in the document describing the agency proposal or action. Reviewing the law is always the best place to start. It is also useful to look at any applicable regulations; examples of similar documents to help you formulate comments about the process; agency materials and guidelines; as well as scientific reports, studies, data, or newspaper articles. Once you have reviewed these documents, make a list identifying pertinent language or content. Your document should contain or at least be consistent with this standardized language. 

4. Comment sooner rather than later. If there is a "scoping process," (often the first stage of a planning process where the agency solicits input prior to the proposal's development) this is the ideal time to provide comments. Providing comments early allows the agency to incorporate your ideas into the alternatives, rather than after the fact. 

3. Coordinate. You can strengthen your position by encouraging federal, state, or local agencies, or respected individuals, groups, organizations, or businesses, to prepare comments or to formally support your comments. Comments by other federal or state agencies or other governmental entities are hard for another government agency to ignore. Coordinating your comments with like-minded individuals, groups, organizations, or businesses shows that many people or entities support the same position. Consider planning a strategy to coordinate comments on external documents with these other players ahead of time. 

Reviewing the Document

Once you have the document in hand, take the time to read it thoroughly with a keen eye for what may be missing as well as what it addresses. 

1. Cross-check. Read the document and check it against all the issues you identified in your review of background materials. Look for errors and information that has been left out or not covered adequately. 

2. Verify the data. Consider confirming some of the data cited to see if they correspond with other information you may have. Make sure that the conclusions reached in the document are supported by the data. Check with local experts- ecologists, economists, engineers, and others-to assist in your review. Also verify that the document is accurate internally. Are there discrepancies between different parts of the document? 

3. Identify your goals. What outcome do you want to see? What are your priorities? Decide whether you will submit substantive comments about the proposed project or action, comments about the process and quality of the document, or a combination of both. Frame your comments to meet your goals. For example, your goal may be to stop or minimize the impact of an action, preserve the right to appeal a decision, or to improve the quality of the document describing the proposed project or action. 

Writing the Comments

Writing tips

Make your point up front. To make it easier for the reviewer to identify your thoughts when skimming, the first sentence of each paragraph should be a main point. 

Be brief. Use short, concise (to-the-point) sentences and omit needless words. 

Tell the recipient what to do. Avoid asking questions. If you have a question—because the text is unclear or about something that is missing—use language like, "Please clarify whether the language in the second sentence on page two refers to the species or the subspecies." Or, "The proposal should indicate whether the project will impact water quality and assess any implications." 

Use Active sentences. Sentences in the Active Voice tend to be clearer and more compelling than passive sentences. For example, "The proposed project would destroy more than 50 acres of important habitat for the gray wolf" instead of, "More than 50 acres of important gray wolf habitat would be destroyed by the proposed project." Passive sentences tend to be more confusing and weaker. Plus, active voice directly indicates the actor or responsible party; in this case, the "proposed project" is to blame. 

Give specific examples to clarify your points. Use real-life or hypothetical examples to create mental images to emphasize your point. 

Be polite. The tone of your comments should be polite and respectful. It is not a good idea to offend the person or people who created the document. Do not make personal attacks or call someone's integrity or question. 

For more tips on writing, see Legal Writing in Plain English
Make the job of the person reading your comments easy. Provide comments that are clear, concise, and compelling. Be brief, but provide the reasoning and support for your suggestions. 

1. Cover letter. Include a cover letter to identify the document reviewed (including any document reference numbers), establish who you (and your organization) are, reference any relevant commenting history, and indicate any attachments you have included. Do not hand write comments or the cover letter- it undercuts your credibility. Instead, use clear, easy-to ready typeface. 

2. Organize. Typically agencies quickly review comments (both electronically and on paper) and categorize those comments and concerns. Do not make the agency reader sort through paragraphs or pages to identify the issues that you are addressing. Instead, use headings that identify each main issue. If you are commenting on a lengthy document or have more than one main concern, consider ordering your comments chronologically, providing specific page-by-page, section-by-section, or issue-by-issue comments. 

3. Be relevant. Your comments should be on point and relevant to the proposed action. If the action being proposed is to delist a species from the List of Endangered Species based on certain recovery criteria, focusing your comments on the inhumane nature of hunting the species is not relevant to the proposal. 

4. Comment on laws, facts, and process.

  • Any violation of law is an important comment. A violation of a legally binding requirement may be grounds for a lawsuit that can delay or permanently disrupt the proposed action.
  • If the information is wrong, ambiguous, deficient, or not given appropriate weight in the decision-comment on the facts. Distinguish facts that are legally relevant from those that are not. For example, commenting on how much you enjoy camping in a wilderness area may be important to you, but it is not a legally relevant fact. But the potential of a project to destroy the wilderness values of a designated wilderness area is a relevant fact because there are legal safeguards.
  • While comments on substantive deficiencies within a proposal may be most important, it may also be useful to comment on the process. Most process comments will fall into the following categories:
    • the right people were not involved in creating the proposal,
    • notice or the opportunity for involvement was insufficient,
    • time allowed for review was inadequate, or
    • important materials were excluded from the record.

5. Provide specific language. If you know exactly what you want the document to say, say so. To do so saves time for the agency to develop the appropriate wording to address your concern and, if used, makes sure that your concerns are addressed in the way you intended. 

6. Indicate what you support. It is possible that an agency will modify aspects of the proposal that you support as well as things you do not, so make sure to point out areas where you particularly agree with the proposal. 

7. Provide additional information. If you are aware of persuasive reports, facts, studies, or articles the document's authors did not use, provide these to them. Supply attachments or provide complete, well-documented information including citations with the date and author. There is no need to include materials that are widely available, such as statutes, regulations, or agency guidance. 

8. Review other comments. You can ask to look at the comments others have submitted to see if you missed important points or to identify people or groups who disagree with you as well as potential allies. 

9. Be solution oriented. Recommend alternatives to the problems raised such as mitigation, changes in timing, offsets, conditions, or exemptions. 

Lessons Learned about Writing Effective Comments
Adapted from lessons in Let the People Speak: Notice-and-Comment Rulemaking (Lessons From the Controversial New Source Review Proposal of the Clean Air Act), 34 Envtl. L. Rep. 10115-130 (2004). M. Squillace, V.B. Flatt, M.M. O'Hear, and R.R.M. Verchick. 

  1. Indicate any illegalities with the proposal. Individual preferences and opinions are of little concern to the agency. The most important role of the notice-and-comment process is to set forth clearly and correctly any controlling legal authority that supports your position. Agencies are bound by the laws that create and control their programs, but illegal actions are possible unless some party challenges the legality of an agency's action.
  2. Public opinion can have some influence on the substantive outcomes of a proposal, but only to the extent that it provides political pressure. While "opinion" comments may not have an individual effect on the outcome of a decision, a groundswell of public opinion cannot usually be ignored in a functioning democracy. Overwhelming public sentiment should provide some political pressure for changing the underlying law, or on the executive branch as a whole.
  3. The procedural aspects of a proposal should be examined. This requires a working knowledge of the Administrative Procedure Act (APA) and its rules concerning public participation. If an agency circumvents public participation, there are good chances that there may be procedural or APA problems with the proposal. If so, and these issues are not addressed, there are grounds for an appeal or a law suit.
  4. Comments should be understandable and readable. How an agency proposal is revised (or not) is decided by a human being. If that person does not understand what is being presented, they cannot do what you wish them to do.
  5. Comments do not need to be perfect. One of the greatest fears of those who comment publicly is that their comments might not meet some standard of professionalism. The important thing is simply to participate in an intelligent manner. By understanding and commenting about one issue, the commenter has accomplished a great deal.

After Comments are Submitted

Once you have submitted your comments, your job is not done. There are a few key steps you can take to maximize your comment's influence. 

1. Follow-up. Request a meeting with the agency to discuss specific concerns, and to answer any questions they might have about your comments. You can also request to see the next version before it goes out to make sure the revised document addresses your concerns. 

2. Meet with the decision-maker. In the federal government, there is an official decision-maker for each formal agency action. However, this decision-maker may delegate this authority to someone else in the agency. States also have official decision-makers, but there are generally fewer people to whom this responsibility can be delegated. Find out who the "real" decision-maker is and try to schedule a meeting with him or her. This may or may not be possible depending on whether they have time and whether the decision must be based on a written administrative record. 

3. Contact other officials. If the decision-maker does not appreciate your concerns, involving elected officials will increase attention on the issue. Consider contacting a member of Congress, a state legislator, or local representative. Supply the official with accurate information, inform them of what outcome you are looking for, and ask them if they would consider writing a letter to the agency to encourage it to take a particular action or to ask for more information. This kind of political pressure is more likely to help at the state or local level where the official has more direct and frequent contact with the agency. 

4. Develop a media strategy. Involving the press is another way to bring attention to your issue. Identify the target audience (agency, national, state, local), determine the best media outlet to reach that audience (internet, television, radio, newspaper) and determine the timing and substance of the message that you want delivered. For more information about developing media strategies see the Communities Committee's Media Strategies for Community Practitioners

For more useful tips, examples and insight see The Art of Commenting: How to Influence Environmental Decisionmaking with Effective Comments 

How does an agency think about and deal with comments?

Interview with Ed Bangs, U.S. Fish and Wildlife Service Wolf Recovery Coordinator

Background
Since 1988, Ed has been involved with the recovery and management of gray wolves in Montana, Idaho, and Wyoming and other western states. Based in Helena, Montana, he is currently the U.S. Fish and Wildlife Service's Wolf Recovery Coordinator for the Western United States and administers a complex federal, state, tribal, and private organization program that monitors the expanding wolf population, conducts a diverse array of non-lethal and lethal wolf control activities, initiates and funds a wide variety of research projects, and conducts an extensive information and education program. He is also responsible for managing the gray wolf delisting proposal and the associated public comment process. Ed talked with us by phone on November 14, 2007.
On February 8, 2007, the Fish and Wildlife Service (Service) published a proposal to establish a distinct population segment (DPS) of the gray wolf in the Northern Rocky Mountains (NRM) and to remove this DPS from the list of threatened and endangered species. The initial comment period on this proposal was open from February 8 to April 9, 2007. Due to the complexity of this proposed action, the Service extended the comment period to May 9, 2007. Montana, Idaho, and Wyoming, which have portions of the DPS that contained the NRM wolf population, were required to develop and submit wolf management plans to the Service that would maintain the DPS above recovery levels. At the time of the proposal, Wyoming had not provided an adequate regulatory framework to ensure conservation of a recovered wolf population. Therefore, the Service indicated that they would consider excluding the significant portion of the range of the population segment occurring in Wyoming. However, the rule proposed to delist all of the DPS if Wyoming adopted a State law and wolf management plan that the Service determined was in compliance with the Endangered Species Act. In November 2007, the Wyoming Game and Fish Commission approved a new wolf management plan that is consistent with a bill passed by the Wyoming legislature earlier in the year that set Wyoming's goals for wolf management. The Service determined that this new regulatory framework, if adopted, would provide assurance that the wolf population in Wyoming would be maintained above recovery levels. Therefore, the Service reopened the comment period from July 6 to August 6, 2007 to provide the public the opportunity to comment on the proposal in light of Wyoming's new plan and legislation. For more information about the gray wolf delisting, see the Service's webpage

How many comments did you receive on the proposal to delist the gray wolf in the Northern Rocky Mountains?
Overall, we received about 260,000 comments, including the comment period after Wyoming submitted a revised plan. Most came through email, but we also had about 500 written comments. To read through all of these bulk email comments we used a system to lump similar comments together so that we didn't have to read each one individually. If it's the same comment, it only makes sense for us to read it once. Honestly, I think sometimes these letter writing campaigns have less to do with influencing wolf management and more to do with raising money. With the request to "save the wolves" also comes a request to donate money or become a member. But of course we also get more in-depth and detailed comments that raise interesting issues you may not have thought about. These generally come from paid staff at NGOs or interest groups, including tribes, state and other federal agencies. 

The most significant comments reference biology and statistics. Sometimes they provide us with information we didn't know. Or sometimes people comment that they didn't understand the peer review process, for example, which shows us that we didn't adequately explain the process. Other times people have really good ideas that we implement. I've never seen a rule that hasn't been improved through public comment. A lot of people know stuff that I didn't have a clue about. We have people that used to work with these issues in a former life that have a lot of good information. For example, we learned a lot about the compensation structure for livestock loss through this process that I didn't know before. 

What has been your role in the public comment processes surrounding the gray wolf delisting?
I'm the lead point person and the primary spokesperson. People contact me with questions, I respond to the media, and people write to me. To some people the wolf stuff can be very personal, so I set the tone for the response to the media. I'm a big believer in transparency in government, so my personal philosophy is to maintain a fair and open process and even go overboard to that end. It's hard not to get personally invested in the proposal when it comes to comments. Some insult your intelligence and your motives, but you just have to trust in the process and trust that it will work out well in the end. I just have to remain open, not take things personally, and make sure everything is on the up and up. Overall, the most important thing I do is lead the process and maintain its integrity. I've seen cases where public comment was blown off, and the end result suffered. 

Are there any differences in how the agency evaluates substantive comments versus comments that come from email campaigns?
Well, when you get 200,000 comments that say "we don't trust the states to manage wolves," it shows that we clearly have to respond to that. But a good idea is a good idea. It doesn't matter how many times you read it-it's not voting. The real question is when you get all these emails, how can you possibly read all of them? It's not a productive use of our time to read the same thing 2,000 times. For comments in general though, the challenge is in figuring out what's relevant. Whether you like wolves or hate wolves it doesn't really matter. We have to think in terms of the purpose of the regulation—what the rule does or doesn't do. Any comments that don't specifically relate to the regulation really aren't relevant. For example, a lot of people said that they were opposed to the aerial hunting of wolves, but that's just not relevant to this rule. 

What is the process the agency uses to read through and analyze comments and then make associated revisions?
We had staff go through all of the comments and come up with categories of issues. Then I read through all of the peer review, written comments and emails that I received and come up with a list based on major headings and issues. In doing that, for example, I realized that we didn't explain the recovery goal very well and that we needed to revise the rule. So we revised that section of the rule and wrote a response acknowledging that people were confused, referenced that section of the rule, and explained how we revised it. Basically, we're working two documents simultaneously, the response to the comments and the rule itself, until the magic moment when I pull them together into the same document. So in the end, I go through my original list of issues and make sure that I've addressed them all-both in the response and in the rule. Then I go back through all the substantive comments and the peer review comments and make sure that I've addressed the issues raised. 

What did you learn through the wolf commenting process that you otherwise may not have known?
One thing we learned was that states actually had humane treatment laws, which was a big issue with the wolves. We also learned that our ungulate population estimates were wrong. We thought that they were above their population goals, but Wyoming had data that showed that they were below, some due to disease or reasons other than wolves. Some people attached scientific literature to their comments which we hadn't used and that was helpful. There were also some comments that we hadn't sufficiently analyzed the effects of disease, and we went back and looked at that. 

I would say that our major conclusions weren't affected, but it certainly forced us to focus in on some issues. For example, several comments raised the issue of how states were going to get money to implement their plan. So, we went back and specifically asked states how they were going to fund their plan. 

How do you feel about people setting up private meetings with you to talk about their concerns?
Honestly, they are not as helpful as submitting something in writing. But on a personal level, sure, it has more of an impact. When you hear someone telling you something to your face, it does have an effect on you. But if more than a couple people went that route, [setting up private meetings], it would be just too much to manage and we'd have to cut it off. 

In a highly charged issue like wolf recovery, how does the agency balance the interests of people who are adamantly for and adamantly against wolf delisting in coming out with a final rule?
We address all interests fairly and with great concern. At some point, you know you can't satisfy some people and that no one with an extreme position will be happy. We recognize that some decisions are about technical issues and science, and some are more about politics and policy. But the key is that you really need to clearly separate these issues. You make compromises in any wildlife management situation, but we are mandated to balance everything in the favor of wolves. If we err, we err on the side of our responsibility to the wolves. In the end, we can't be wondering whether the wolves have recovered—our concern is that their populations have to be above a minimum level. No exceptions. I can honestly say that in this situation, there has been almost no political interference despite numerous attempts. 

How has the wolf delisting comment process differed from other public comment processes you have been involved with?
This has been a lot more publicized. Letters show up in the newspapers rather than just in my mailbox. We've gotten a lot more pressure from Congress and other leaders, but for the most part we've been able to ignore it. The credit for that goes to the leaders in the agency that really have kept this at a local level, which has been really important. Once things get 'fixed' among top leadership, nothing stays at the ground level where the accurate information is. So political fixes often end up being made on rumor and gut reaction. In the end, they just can't stand up to the legal test we must face, which is: does the final decision reflect the best scientific data. But in general, everything relating to the wolf is much bigger. This does create some animosity within the agency because when you have something going on that's high profile, many of the resources and staff time are pulled towards that effort and away from other programs. 

I've also noticed that people interested in the wolf issue are a lot smarter about their involvement. The wolves were listed in 1974, so with 30 years of history to learn from, the interest groups are more educated about what works, what doesn't, and how to do lobbying and litigation. As a result, we in the agency know this, so we pay extra attention to detail regarding the APA [Administrative Procedures Act] and NEPA [National Environmental Policy Act] in making sure that we are following the proper procedures because we know if we don't, we'll hear about it in court. In other cases, sometimes people are less careful. But since we know that everything will end up in court or at a political level, we make sure all our leaders are fully briefed with accurate information, and we make sure that the attorneys are involved from the beginning and that everything is really well documented. In general though, I have to say that I think that the process treats all issues, big, small, exciting and boring, the same. 

What would you say about the value of the comment process in coming to decisions about managing wildlife?
Better information always gives you the opportunity to make better decisions. Going through a comment process means that nothing is left unknown. Every possible thing has been dragged out into the open. The other thing is that it helps people hear and understand other's view points. It's easy to get into group think and to believe that everyone thinks like you do, but once you see what others say, you realize that people think differently. It helps people accept the final decision, too, and to recognize that there are always trade offs. It's also important not to under-estimate the value of educating agency people. I'm always really surprised by how much we didn't know. It also allows us to get a good feel for all the different perspectives and have some empathy for their position, whether that comes from a tribe, or a rancher, or whoever. I think it forces us to come up with better ways of managing resources. 

What, if anything, could be done to improve the public comment process for the benefit of communities and wildlife?
One thing that I've noticed, and it's slowly changing, is that the career track within an agency is pretty homogeneous. Traditionally, the Fish and Wildlife Service people were generally all hunters, and the people working in the BLM [Bureau of Land Management] were all from grazing backgrounds, but they were all biologists. So you get biologists, who are good biologists but aren't used to dealing with people and communication, running the public participation process (or land or resource-use planning process) and they don't have a clue. Group think is often the kiss of death to honest open rule-making. Recognizing that planning and communication are trained skills, I think the agency would greatly benefit from using professionals with these skills to run the process. We have to recognize that planning, communicating with the media, and having the public meaningfully involved are complicated tasks. We need trained professionals that can be open to new ways of doing things and not get personally attached to ideas. 

Another issue we're struggling with is how to deal with the available technology. In this electronic age, we're trying to figure out how to make the best use of our time as well as get meaningful comments. In Montana, for example, they have this program where you fill out and submit a comment form directly through their web page. We just need to figure out with all the advancement in technology how to get a meaningful public process that's helpful. 

What are your thoughts?
We expect this series, both the content and the topics covered, to grow and change over time as we hear from you, so let us know what you think!

  • Have you written particularly effective comments that you would like to share? Consider sharing them with us.
  • What lessons have you learned about participating in the notice and comment process?
  • What would improve the process from your point of view?

The topic of our next series will be public hearings, meetings, field trips, and open houses. What have you learned about staging or attending these events? 

What other topics would you like to see covered in this series? Please send us an e-mail with any comments or suggestions! 

Additional Resources

Legal Resources

Red Lodge Clearinghouse 
For a guide to legal resources on the web, go to "Know the Law"
 
Federal Register
The Federal Register is the official daily publication for rules, proposed rules, and notices of Federal agencies and organizations, as well as executive orders and other presidential documents.
 
Thomas Library of Congress
Contains bills, legislative history, Congressional record references, links to bill sponsors, and reports. 
 
The National Technical Information Service
Provides information about and copies of numerous environmental documents
 
Findlaw
A legal reference site containing an index of and linkages to laws, codes, law reviews, and legal organizations

Agency Web Pages

US Forest Service NEPA 
Forest Service NEPA procedures, directives, manuals, and handbooks
 
Bureau of Land Management Land Use Planning Library
BLM laws, regulations, manuals, handbooks, and instructional memoranda
 
Fish and Wildlife Service NEPA Handbook
NEPA-related authorities, checklists, and samples
 
Environmental Protection Agency
Federal register notices searchable by category or keyword for the EPA and other agencies

Training Opportunities

Utah State University NEPA Certificate Program
The Department of Environment and Society at Utah State University and the Shipley Group, Inc. have formed a partnership to provide a certificate program that offers training related to the National Environmental Policy Act (NEPA). Seven classes required.
 
National Wildlife Federation (NWF) Tribal NEPA Training
At the request of tribes, NWF provides NEPA training workshops. For more information contact Garrit Voggesser
 
The Perspectives Group
The Public Participation firm announces the final opportunity to take the International Association of Public Participation Certificate course this year.

Other Useful Sites and Materials

The Art of Commenting: How to Influence Environmental Decisionmaking with Effective Comments, by Elizabeth D. Mullin
A step-by-step approach to help non-scientists comment on federal environmental regulations.
 
Environment, Health and Safety Online
A variety of resources, studies, and reports on NEPA.
 
The Environmental Problem-Solving Center 
Links and information about various problem-solving approaches from the University of Colorado Conflict Research Consortium.
 
A Citizen’s Guide to the National Environmental Policy Act
A guide from the Council on Environmental Quality to help citizens and organizations who are concerned about the environmental effects of federal decision-making to effectively participate in federal agencies’ environmental review process under the National Environmental Policy Act (NEPA).

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