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Saturday, June 07, 2014

Beware the Arbitrary APE

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.  


Tom's BLM bloke said...

Tom, I am usually all on board with you and just about all your perspectives and justifiable rants. However, on this one all was not fairly presented to reflect the matter in its entirety. This country of ours was founded on particular tenets, in this case private property which some hold precious to a point of lunacy. And there are a great many cases when the property owner is not the project proponent, although is getting a stack of money for use of land to stage on,,,
I can say that I myself have faced landowners who basically said they would not hesitate to shoot at me or call in local law enforcement for our removal.
And in cases when there may actually be a HP affected, it is at the discretion of the landowner to decide whether to allow any party to.
Now maybe you come from another neighborhood) these days, but I have no doubt that you recollect some of these private property minded types when you were at UCR and especially when you have Ventured into the silver state.

I say this because it would probably be good to check on this kind of thing before sending an attorney after them.
This is not to discredit what you are saying Tom - I absolutely agree there are cases when the federal agency does an extremely poor job identifying and defining the APE-hell half of them don't even know what an indirect effect is, let alone know what an adverse effect is. They still struggle with trying to remember the trick regarding when to use affect verses effect.

Tom King said...

I'm not understanding your point, bloke. Are you saying that because a landowner doesn't want to acknowledge that his property will be affected by a federal action, the ostensibly responsible federal agency should say "oh, OK," and not consider the potential effects? I'm well aware of how devoted folks in the silver state (and elsewhere) are to their property rights, but that devotion doesn't seem to me to relieve the federal government of its obligation to consider the effects of its actions on the environment.

dogscratcher said...

While I think I understand what you mean when you talk about, "...all the areas where EFFECTS on historic properties may occur," am I right in thinking that this could mean that an APE may not be contiguous? Visual impacts for instance may occur from a park on a hill that are not apparent from the area immediately surrounding the project boundary.

On a related note, how exactly does one distinguish between direct and indirect effects? While some direct effects are obvious (bulldozing a historic building), other effects seem to be much more difficult to pigeonhole into either category (increased traffic around a historic property due to the project). Thank you for your time,
James K.

Tom King said...

Thanks, James. Yes, the APE does not have to be contiguous; the regs define it as the area OR AREAS where the action may affect historic properties if any are present. So you could have a project that will wipe out archaeological sites over HERE, for example, and have visual effects on other historic properties over THERE. As to direct vs. indirect -- that gets tricky, as you recognize. The distinction really IS a fuzzy one, but I think it generally comes down to how certain the effect is, and how closely linked it is to the project itself. Not very satisfying, I know, but the best I can do -- besides the formal definition of indirect effect in the NEPA regs -- related to the action but later in time or farther removed in distance.