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Friday, April 05, 2013

Of Aimless APEs and Pedestrian Profiteers



I am just back from a conference of the National and California State Associations of Environmental Professionals (NAEP/AEP) in Los Angeles. I believe it will be my last professional conference. There are a couple of reasons for this, but the major one is that I just find the things too bloody depressing.


I was there at the invitation of Kurt Dongoske, Tribal Historic Preservation Officer (THPO) for the Pueblo of Zuni, to take part with him and Theresa Pasqual, Acoma HPO Director, in a session on the National Environmental Policy Act (NEPA) and tribal concerns. That session didn’t depress me; I thought it went pretty well, and was well enough received by the 30 or so people who attended.


But beforehand I wandered the display area, where environmental consulting firms display their wares. The exhibits pretty uniformly advertised work under NEPA and the California Environmental Quality Act (CEQA), and almost every one touted their “NEPA/CEQA Documentation.” Documentation. Not analysis, not conflict resolution, certainly not consultation or creatively addressing public concerns. Only one ad I saw even alluded to “compliance.” Nope, crank out those documents, that’s what we do. That’s why you pay us the big bucks.


That, however, was not the most depressing aspect of the conference. That distinction was reserved for a session on “Cultural Resources in Large-Scale Linear Projects.”


I should’ve known better than to attend. I should’ve gone to something on wetland delineation or air quality.

One of the papers was about evaluating historic highways, and it just struck me as silly. Lots of stuff about historic contexts and what gives an old road integrity in the eyes of – well, somebody; exactly who was never specified, but it seldom if ever is. Another was about an interagency effort to “streamline” (God, I am sick of the Cult of the Streamlined) review of projects to refurbish existing railroad facilities. This struck me as a lot of strained labor to give birth to gnats, but it did offer a few modestly clever ways to reduce time wasted on pointless paperwork. And since the poor devil had all the usual dead weights to contend with – Advisory Council, National Trust, State Historic Preservation Officers – glacial progress was the best one could hope for.

But then there was the one on archaeological surveys of linear projects like pipelines and transmission corridors, in which we were told that:


1. The area of potential effects (APE) of a linear project is the area subject to ground disturbance; and

2. “Cultural resources” are identified in these APES through the conduct of “pedestrian surveys” – i.e. archaeologists walking the ground – sometimes augmented by shovel testing (digging holes).


Why was hearing this so depressing? Well….

First, when my colleagues and I came up with the idea of APEs, during the mid-1980s rework of the Section 106 regulations, I feared that the deadhead archaeologists who even then were coming to dominate practice under the law would interpret it as meaning “duh, where you’re gonna disturb th’ artifacts.” So we tried to make it pretty clear, in the regs and in various pieces of guidance, that the term means just what it says. The area of potential effects is the area (or areas) where a project may have effects on historic properties. Physical effects, sure, but also visual effects, auditory effects, olfactory effects, socioeconomic effects – effects of any kind. The reason we define APEs is – I thought, back then – so we’ll think through what effects are likely, make projections, and try to examine the potentially affected environment in a thoughtful way. It was clear from the presentation in L.A. that this simple, obvious notion – the only one that relates plausibly to the purposes of laws like NEPA and the National Historic Preservation Act – has been entirely lost on the mindless automatons that pass today for “cultural resource consultants.”


Second, while pedestrian survey is one way to identify archaeological sites (though not the only way; see below), it is at best a very poor way to identify quite a wide range of other types of historic property – notably cultural landscapes and traditional cultural properties. It is even worse as a means of identifying “cultural resources,” which by any sensible definition may include culturally valued animals, vegetables, and minerals, water, viewsheds, atmospheric phenomena, and such wholly intangible things as language, songs, and stories. Sure, some of these “resource” types may not be much prone to effect by pipelines or power lines, but some of them very likely are, and they’re supposed to be considered under NEPA. And an archaeologist strolling along digging holes isn’t going to find them.


How do you find them? First by defining your APE broadly enough to allow them to be sought – for example, by including areas from which your transmission line will be visible, or your pumping plant will be audible. Second, by recognizing that some “resources” – like water, and songs – may not have very point-specific geographic references but still may be affected by changes in the landscape. At least from the perspectives of some people, some citizens – for whom, after all, Congress made laws like NEPA and Section 106.


And third, by talking with people! The tribes, the ranchers, the artifact collectors, the hunters, the local archaeological and historical societies, the residents. Asking them what they think of a pipeline or a row of transmission towers running through their viewshed, or along their country road, or across their swimming stream or through their forest. Asking them what, if anything, they know or think about the area’s historic resources, and what, if anything, they value in the affected environment. Asking people about their concerns, and about what constitute “resources” in their eyes, is a fundamental part of Section 106 review, and good practice under NEPA.


So I asked a couple of questions.

1. Did the presenter have some regulatory or other basis for his definition of APE (since it certainly didn't have anything to do with NEPA or Section 106)? Well, he responded, it wasn’t for him, the consultant, to question the responsible agency. Odd, somehow I thought the business of expert professional consultants was to apply their expertise to the formulation of advice to their clients. Counsel, as it were. Somehow I’ve allowed myself to be misled into thinking that a consultant ought to know the regulations he’s being paid to help implement, and act as his or her client’s expert advisor. Silly me.


2. Had he talked with anybody? He smiled a bit lopsidedly and said that while federal agencies were usually OK with his talking to the public, private clients generally weren’t; his team’s job was to walk their routes and dig their holes in secret. Thus defeating the public purposes of the laws, and depriving themselves and their clients of the data they would need in order actually to comply with those laws, but oh well.


I know, sadly, that there’s nothing new or unusual in what I’ve just reported. Surveys by pedestrian archaeologists in narrowly defined APEs are standard practice, widely if stupidly thought to satisfy the regulatory requirement for a “reasonable and good faith effort” to identify historic properties (never mind “cultural resources”). And this, I suppose, is the more personal reason the NAEP/AEP session left me so discouraged. Because since 1998 I’ve published some six books and who knows how many journal articles, government guidelines, and internet postings about Section 106 review, many if not most of which explore what an APE ought to be, and what constitutes a reasonable and good faith identification effort, and almost all of which rail on and on about the importance of consultation. And here we are in 2013, with well-dressed consulting archaeologists explaining to NEPA consultants that the law’s really satisfied through the conduct of secret surveys by pedestrian archaeologists in narrow little corridors. Books? Papers? Guidelines? Who reads any of that stuff? We consultants know what the law really requires – it really requires whatever it is that we’re comfortable doing, that makes us a lot of money, and that facilitates our clients’ projects. Ours is not to question what our clients tell us to do, or to advise them about how best to comply with the laws – or even to know what the laws require. Ours is to receive our orders, walk our APEs, dig our holes, keep secrets, and collect money.

What a fine industry we’ve created.

5 comments:

Mark Franco said...

As usual Tom you hit the issue squarely in the face. Now, I will wait to see how the big money CRM's respond to your "ground truthing" this issue. Keep up the good work, missed reading these writings for a spell but I am back now watching with a fresh set of ideas.

Rich Estabrook said...

I was one of the 30 or so people who attended these sessions at the NAEP/AEP Conference. Although I though each of the presenters did an excellent job of presenting their particular project and/or slant on linear projects, I too was very much concerned about how and why APEs were being identified, defined, and tested. I was particularly taken back by the metrics; people using some arbitrary distance – 330 meters, one mile, five miles as some golden standard within which all possible adverse effects might occur. I enjoyed Tom’s carefully crafted responses and the discussion that ensued nearly as much as the formal presentations. Perhaps an open forum discussion on APEs at the NAEP next year might be good. I’d very much like to hear the FHWA and FERC positions on this.

TomFan said...

Anyone who has worked within the agencies knows that NEPA scoping and NHPA "consultation" are elaborate deceptions of the public and tribes. The agency goes though the motions of listening to the public and tribes in public meetings and invited gettogethers - expresses its' heartfelt appreciation and respect for their views - and then goes right ahead to do whatever it wants. At least, when the agency hires archeologists to "clear" APEs, the public and the tribes get a little something for their tax dollars, if not for their time wasted talking to the agency. Maybe some arrowheads, new dots on maps, and very occasionally something to repatriate - 'taint much, but better than nothing, and better than being lied to.

Jay R. said...

Yes, Mr. King "hit the issue squarely in the face" but, while I wholeheartedly agree with his identification of the problem, there are a number of faces in the crowd that are deserving of the pugilist's retribution; but who he has overlooked in his self-consumed rage. A large portion of Mr. King's (sorry, unfortunately we're not on a first name basis yet) blame seems to rest on the shoulders of "mindless automatons" (i.e., cultural resources practitioners). While the label may be appropriate in 80% of cases, even those of us who know better do not have the power to do more than the next guy. It seems that he has forgotten being a consultant is a competitive business. If I submit a proposal to a project proponent that suggests that they should pay me to go around and talk to local folk and find out what animals, vegetables, and minerals, water, viewsheds, atmospheric phenomena, languages, songs, and stories they value and feel may be affected by the project-- on top of the now standard record search, archaeological and historic architectural analyses-- while my competitor submits a proposal that is much more easily grasped and infinitely cheaper... who do you think they gonna pick?

What are the real teeth behind NEPA, NHPA, and any other host of environmental laws? The threat of litigation. If Tom, or anyone else reading this blog, can successfully win a lawsuit against a project proponent or agency for failing to uphold their legal duties by not adequately addressing the full meaning of "resource" and "reasonable and good faith effort," please do so. It would make my job so much more meaningful and enjoyable.

Until that time, no project proponent is EVER going to hire a consultant who suggests that they do above and beyond what has become the industry standard. They also are not likely to do it just because an agency tells them that they need to. That's what the project proponents have a team of high-paid lawyers for. Even something as tangible as buried archaeological resources (bias alert: geoarchaeologist), which are clearly not addressed by record searches and pedestrian surveys, only has a few agency proponents here in California (Caltrans and CEC); and the lawyers fight them on it every chance they get.

So, while I would love to engage local traditional communities and help them become aware of and preserve every aspect of there environs which may be vital to their sense of place, history, community, personhood, etc., I am relegated to "keeping secrets and collecting money."

I also believe that some of the consultation and preservation aspects, that Mr. King intended to be captured in Section 106, are part of the environmental permitting process... during public comment periods, biological assessments, socioeconomic impact assessments, etc.. And perhaps that is where such considreations belong. Though I do concede, it is often the well-healed and powerful who's voices are amplified over the marginalized in the current regulatory system. But that my friends, has little to do with the failings of cultural resources practitioners.

Tom King said...

Jay, I wrote a whole book about that back in 2009, called "Our Unprotected Heritage." Sure, you're right; if you propose to do what the law intends instead of the pointless BS that's come to be the norm, some low-baller is going to get the contract instead of you. Seems to me we ought to try to fix that, rather than just accept it and adjust our standards accordingly.