First a bit of background. Under Section 404 of the Clean Water Act, the U.S. Army Corps of Engineers (Corps) issues (and very occasionally denies) permits for filling wetlands, building piers, and other activities affecting the waters of the United States The Corps has extensive regulations governing its regulatory activities, which can be viewed along with much supporting data at http://www.usace.arm.mil/CECW/Pages/reg_materials.aspx.
Although Corps regulatory decisions require compliance with the National Environmental Policy Act (NEPA) and Section 106 of the National Historic Preservation Act, back in the 1980s the Corps decided that it was far too much trouble to follow the regular Section 106 regulations (36 CFR 800), so they came up with a sort of alternative, which they embedded in their regulatory program regs (33 CFR 320-232 and 334) as “Appendix C.”
Appendix C set up a strange, intricate system by which the Corps can regularly turn a blind eye to the impacts of any regulated project that occurred outside a Corps-defined “permit area” that is generally restricted to the affected waters, though the system allows for a variety of rather capricious exceptions. Never mind that under NEPA agencies are responsible for addressing the effects of their actions – not just those that occur within specific areas under their jurisdiction and control. Never mind that Section 106 imposes a similar standard. To the Corps – with those various exceptions that the District Engineer can invoke or not, as the spirit moves him – what’s outside the permit area doesn’t exist. Unless it’s something that’s on the National Register; then maybe they’ll consider effects on it. Never mind, here, that Section 106 applies both to properties that are on the Register and those that are eligible for it; it’s just too much trouble for the Corps to do what Congress told them to do.
The Advisory Council on Historic Preservation (ACHP) and the National Park Service (NPS) have regularly advised the Corps that Appendix C’s not worth the paper it’s written on. So have innumerable State Historic Preservation Officers (SHPOs), Indian tribes, and other knowledgeable and authoritative bodies. So, on several occasions, have the courts. But the Corps has persisted, every now and then setting up working groups to “reconsider” Appendix C but never actually doing anything about it.
Now, in response to President Obama’s Executive Order 13563, which directed agencies to undertake “retrospective reviews” of their regulatory systems to see how they could be improved, the Corps has once again sought public comments on its regulations. It will doubtless ignore whatever comments it receives, as it always has in the past, but some of us are moved to tilt at windmills and will file comments. If by chance you are so moved, you can submit your comments to docket number COE-2011-0028 at http://www.regulations.gov, or by email to email@example.com – or by snail mail to HQ, US Army Corps of Engineers, Directorate of Civil Works, ATTN: CECW-CO-R, 441 G. Street NW, Washington DC 2-314-1000. But you need to get them in by January 17, 2012.
Ira Beckerman's Comments
If you’re moved to comment, you could do worse than to use the following as a template; it was prepared by Ira Beckerman of the Pennsylvania Department of Transportation and is published here with his permission. He drafted it for his agency, and stresses that it will not necessarily look precisely as it does now when it’s officially submitted to the Corps.
Thank you for the opportunity to comment on the Corps’ existing regulations. In particular, we respond to question 4: “How can the Regulations be changed to better harmonize with, be consistent with, and coordinate effectively with, other federal regulations and environmental review procedures?” With regard to archaeological and historic resources, our agency has one basic comment: 33 CFR 325, Appendix C - Procedures for the Protection of Historic Properties – should be abolished. In its place, the Corp should adopt the Advisory Council on Historic Preservation’s Regulations, 36 CFR 800. There are a number of reasons for doing so.
1. All of the substantive issues raised in Appendix C are already covered in 36 CFR 800 and in roughly the same way. Appendix C is duplicative regulation.
2. Appendix C has never been approved by the Advisory Council and the Corps has never recognized Advisory Council regulations. Consequently, it has been impossible for a state agency such as PennDOT to develop a programmatic agreement to cover historic resources since the two essential signatories cannot come to agreement on the basic set of regulations supporting the agreement.
3. The Advisory Council has a long-established and lengthy set of guidance for interpretation of 36 CFR 800. Generally, this guidance is well understood by other Federal Agencies and applicants (including PennDOT). The development of a duplicative set of regulations by the Corps without the commensurate history of guidance and the Corps unwillingness to seek assistance from the Advisory Council has resulting in Corps staff offering inconsistent and conflicting interpretations of Section 106 of the National Historic Preservation Act, which has increased PennDOT staff workloads and increased the time it takes to complete the process. The presence of 3 main Corps Districts in Pennsylvania has added to the inconsistency, as each District must interpret Corps regulations independently.
4. In Pennsylvania, the SHPO and most Federal agencies, including FHWA, have worked out protocols for the implementation of 36 CFR 800. The protocols provide predictability in process and outcome, and, in particular establish a useful role for the Advisory Council. Even mundane issues such as who should sign off on an MOA first must be worked out differently. PennDOT now works in largely an electronic document environment, which is supported by the SHPO and FHWA. Corps protocols do not fully support this environment. The Corps utilizing its own protocol adds work to the SHPO and PennDOT in duplicative processes and training.
5. The Corps has expressed concerns that acceptance of the Area of Potential Effect (APE) as defined by the Advisory Council would unduly burden the Corps and require it to regulate more than it should. In lieu of (APE), the Corps has developed the concept of permit area. We do not believe acceptance of the Advisory Council standard of APE will unduly burden the Corps. Council regulations are clear that the undertaking and applicability of Section 106 is constrained by: the Agency Official (Corps) determining whether the action is an undertaking (36 CFR 800.3.a); the Agency Official determining the Area of Potential Effects (36 CFR 800.4.a.1); and the Area of Potential Effect influence by the scale and nature of the undertaking (36 CFR 800.16.d). Other Federal agencies with apparently open-ended Areas of Potential Effect have successfully managed to establish limits, and with the assistance of the Advisory Council.
Quibbles and Conclusions
There are aspects of Ira’s comments with which I could quibble – for instance, agencies are not in fact allowed by the 106 regs to determine whether something is an “undertaking;” that term is defined in the statute itself. And as I’ve explained in these pages and elsewhere, I don’t think the ACHP regs are such great shakes; it would be nice if the ACHP's own retrospective review resulted in some fixes (I am, however, not holding my breath). But it is ridiculous for the Corps to follow its own manifestly extra-legal procedures rather than the existing or some future revised standard 106 process; it complicates life for applicants, the affected public, oversight bodies like SHPOs, and probably Corps staff themselves. It’s a waste of time, money, and everyone’s patience.
The Corps probably needs ways to simplify review of little dinky routine projects, but so do most other agencies, and the 106 regulations provide lots of ways to do this. What they do not provide is the authority for agencies to just waltz off and do their own 106 regs without the ACHP’s by-your-leave. The author of Appendix C, who was pathologically fixated on their perpetuation, has long since retired; it’s time for the Corps to join the rest of the world, and reduce the federal regulatory portfolio a little by excising its silly appendix.