In the language of impact assessment under Section 106 of the National Historic Preservation Act (NHPA), “APE” stands for “Area of Potential Effect” (See 36 CFR § 800.16(d)). It’s the area or areas within which a project may have effects on historic places. Under the Section 106 regulations, federal agencies figure out what the APEs of their undertakings are when establishing the scope of their historic property identification efforts (See 36 CFR § 800.4(a)(1)).
I’ve recently reviewed several scoping documents prepared by or for federal agencies that purport to establish APEs. They’ve involved several kinds of projects, but here’s a typical if hypothetical example. A block of federal land – let’s say 100 acres – is proposed for transfer to non-federal parties, who will use it as part of an economic development scheme. The overall scheme features roads, water lines, power corridors, industrial facilities, and probably spin-off residential and commercial development covering, say, 1000 acres. The scoping document says that the APE for the federal land transaction comprises the 100 acres to be transferred plus a standard “buffer” around them – bringing the size of the total APE to, say, 200 acres.
As mentioned above, it’s the federal agency that determines the APE. They supposedly do this in consultation with State or Tribal Historic Preservation Officers but not necessarily with anybody else. This gives agencies a lot of latitude for making mischief, and it seems to me that the above example (like its real-world counterparts) is mischievous indeed.
Why? Because it doesn’t really embrace the area to be affected. Arguably, at least the whole 1000 acre development actually lies within the APE – depending on how critical the 100-acre federal parcel is to the overall scheme. If the 100 acres aren’t particularly vital, then the APE may not be so big, but surely it at least includes the areas to be affected by any facilities needed to facilitate the 100 acres’ development – probably roads, utility corridors, and the like -- and areas where development of the 100 acres may stimulate other changes in land-use. Some of these may fall within the buffer zone, but others probably do not. On the other hand, some parts of the buffer zone may not be affected at all. If the agency focuses its identification work within its 200-acre APE, it may quite systematically miss historic places that are actually subject to effect, and waste time and money finding and documenting places that aren’t. And if someone objects to project effects that will occur outside those 200 acres, the agency will have nothing to say except “Sorry, that’s not in our APE.”
The “E” in APE is important. The APE is supposed to include all the areas where EFFECTS on historic properties may occur. Direct effects, indirect effects, and contributions to the cumulative effects of other past, present, and reasonably foreseeable future actions. An APE defined to embrace only an area of direct effects (in the example above, the land actually passing out of federal control) plus some arbitrarily defined buffer zone is precisely that – ARBITRARY. Under the Administrative Procedures Act (APA), courts of law are directed to reject arbitrary agency decisions.
So here’s some advice for federal agencies: try not to let your APES get arbitrary. Think about where effects may ACTUALLY occur, and draw your APE boundaries to embrace them. You may not be sure where all the effects will happen, but you can make reasonable and defensible judgments based on the facts before you. Making such judgments, and documenting how you did so, will produce a much more defensible administrative record than will just drawing lines around your direct impact area and tossing in some buffer zones.
And some advice for project opponents: look carefully at how the agency defines the APE. If it’s arbitrary, if it doesn’t include areas where you think effects will occur, object to it, and if the agency isn’t responsive, talk with your lawyers about including arbitrary APE definition in the complaint when you go to court.