tag:blogger.com,1999:blog-8788575.post6003316945950353363..comments2024-01-11T22:45:53.276-08:00Comments on Tom King's CRM Plus: The Corps of Engineers Needs an AppendectomyThomas F Kinghttp://www.blogger.com/profile/00037819472341496713noreply@blogger.comBlogger6125tag:blogger.com,1999:blog-8788575.post-62692331042063549702012-01-20T07:07:30.247-08:002012-01-20T07:07:30.247-08:00I find it interesting in all the contention over A...I find it interesting in all the contention over Appendix C, that the EPA is not mentioned. The ACHP seemingly gives them a free pass while targeting the USACE. True, Appendix C is not completely in line with NEPA and NHPA, but it has not been found illegal despite "several court cases" (of which I can only find one that focuses on coordination in general and not specifically Appendix C). In theory the Corps should use Section 106 as other federal agencies do. However, they are unique in primarily issuing permits to private individuals/companies on private land. I don't see any hub-bub about NRCS or HUD or other federal agencies that grant permits or give financial assistance to the public, WHO SHOULD BE COMPLYING WITH SECTION 106, completely ignoring their obligations! Section 106 is not perfect by any means.<br /> <br />The jurisdiction issue is a challenge, but it is a real challenge, not something the Corps hides behind. Those are defined in the CWA and USACE Regulations. The EPA has enforcement authority! There are serious contradictions between what is "allowable" in regards to Threatened and Endangered Species and historic properties. For example, a nesting area can require a T&E survey and result in special conditions or permit denial, despite the unknown whether that bird will choose that spot. Cultural resources are treated differently. More internal training could help as could refreshing the work pool, but I don't see this issue being resolved anytime soon. <br /> <br />The ACHP is an advising body and does not determine the regulations of federal agencies. Foreclosure may look bad, but what does it really do to that agency? It might behoove the silverbacks of this profession to figure out new ways to implement change instead of the same old song and dance. Engaging new professionals and Appendix C practitioners is one idea. Working with Tribal Nations to put more pressure on Congress, the Corps, and/or the EPA would be beneficial as well. Tribal governments and SHPOs should also be more involved in the reissuance of the Nationwide Permit Program, yet they rarely comment except to say, again, that they dislike Appendix C! Why not attack the applicants like natural gas, oil, power, utilities, etc? (Although these companies use CRM professionals, so that could be tricky.) PR and public archaeology are key here since the federal government is already struggling to improve its image. A little tact when working with the Corps could be used as well. Pointing out perceived or real errors, negligence, or bad history does nothing but slow change. Leadership 101: ok, there is a problem...what can we realistically do to fix it? Your response to the comment period is, in true fashion, condescending, arrogant, and tired. It's time for a new tactic. <br /> <br />Although Appendix C is far from perfect, those tasked with its implementation and compliance do as much as they can within the auspice of the regulation. Good, creative archaeology is occuring. A little credit to those in the trenches might be warranted. My appendix is as healthy as can be.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8788575.post-86397512724176205212011-12-30T12:22:35.970-08:002011-12-30T12:22:35.970-08:00Here's what I've sent the Corps as a comme...Here's what I've sent the Corps as a comment:<br /><br />The Corps' Regulatory Program Regulations (33 CFR 320-32 and 3) have long been over-complicated by the attachment of "Appendix C," purporting to govern how the Corps complies with Section 106 of the National Historic Preservation Act. Appendix C has never made any sense, has never been accepted by the Advisory Council on Historic Preservation or by the courts as governing compliance with 106, and unduly complicates the lives of regulators, applicants for Corps permits, and the public. There is ample room in the government-wide Section 106 regulations (36 CFR 800) to accommodate such adjustments as the Corps may need to handle the peculiarities of its permit probram. The Corps should simplify its own regulations by eliminating Appendix C and instead complying like every other agency does with 36 CFR 800. Those regulations themselves could benefit from reworking to simplify them and make them more open to public participation, and the Corps might usefully help and encourage the Advisory Counci to undertake such efforts, but at the very least, Appendix C should go.<br /><br />Thank you for the opportunity to comment.Thomas F Kinghttps://www.blogger.com/profile/00037819472341496713noreply@blogger.comtag:blogger.com,1999:blog-8788575.post-82663196562945155972011-12-28T16:52:57.831-08:002011-12-28T16:52:57.831-08:00Thanks; I'm glad you enjoy the blog. I've...Thanks; I'm glad you enjoy the blog. I've seen the Corps issue other federal agencies pretty much the kind of "conditional" permit you're proposing -- "here's your 404 permit provided you comply with NEPA, 106, Sec. 7, etc. etc. etc." -- so I don't know why they won't do so for your agency. Are you dealing with one particular Corps District or Division? Maybe they've had a bad litigation (or other) experience that's made them shy away from such conditional permits, or maybe there's just an individual (specialist, lawyer, whatever) who's influencing management against such things. I can't imagine that it's overall Corps policy -- unless there's been some recent litigation that I'm not aware of (certainly a possibility) that's forced them to adopt such a stance.Thomas F Kinghttps://www.blogger.com/profile/00037819472341496713noreply@blogger.comtag:blogger.com,1999:blog-8788575.post-46986757611457199422011-12-28T16:39:08.900-08:002011-12-28T16:39:08.900-08:00Tom - I think you hit the heart of the problem and...Tom - I think you hit the heart of the problem and it lies in the difference between the ACOE “complying” with laws and the ACOE “regulating” laws not necessarily under their purview. Part of my job working for a federal agency is obtaining the myriad of permits and approvals needed to perform in-water work. What we currently have are our permit packages being routed between various biologists/ecologists, archaeologists, architectural historians, permit writers, legal, etc. at the ACOE performing redundant reviews following our completion (or near completion) of Section 106, Section 7, government to government consultations, NEPA, and applying for several other approvals at the state and federal level. The additional reviews at ACOE can add months of delay to permit issuance. Also the ACOE act as the stop gate and generally will not begin processing our permit until most other approvals/concurrences are received. My particular federal agency can be loath to issue a FONSI or ROD under NEPA without most approvals in hand, including state approvals under the Clean Water Act and the Coastal Zone Management Act which are tied to the hip of the ACOE permits. This causes a cascade of delays or puts us in a do-loop from receiving necessary approvals for in-water work. These permits and approvals should ideally be working in parallel with each agency doing their bit under their authority. When I say that ACOE’s responsibilities should be limited to Section 404 of the CWA and Section 10 of the Rivers and Harbors Act I mean that they should be able check if our project and permit application meets the requirements of these laws and issue us a permit authorizing us to perform work under these laws. My question is why can’t they issue us a permit that states that it is only valid once the applicant complies with all other related laws and put the onus on the lead agency? Maybe I’m a wild-eyed idealist but I was hoping that EO 13563 would help alleviate regulatory bottlenecks. <br /> <br />I’ll concede that it would require a lot more work to have the ACOE incorporate state SEPA documents into their processes for non-federal projects, but again it’s not unprecedented at the federal level. Thanks for the feedback, I enjoy your blog.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8788575.post-53909863558628785342011-12-28T12:11:53.828-08:002011-12-28T12:11:53.828-08:00I feel your pain, Anonymous, but the Corps DOES ha...I feel your pain, Anonymous, but the Corps DOES have independent responsibility to comply with that myriad of other laws, and it certainly can't count on there being a state equivalent of NEPA (and still less a state equivalent of Section 106) on which it or anyone else can rely. So I don't think your options are legally available to the Corps, even if they're desirable. That said, I think there's a good deal of merit in thinking about different systems for cases where other federal agencies are involved as opposed to those where they're not.Thomas F Kinghttps://www.blogger.com/profile/00037819472341496713noreply@blogger.comtag:blogger.com,1999:blog-8788575.post-21885102352182641332011-12-28T11:56:05.386-08:002011-12-28T11:56:05.386-08:00The ACOE should clarify their regulations/guidance...The ACOE should clarify their regulations/guidance to distinguish two distinct permit review processes; one for issuing permits to federal agencies or state agencies spending federal dollars where authority has been delegated by the lead federal agency (e.g. FHWA); and a second review process when issuing permits to non federal agencies (e.g. developers/private industry/local gov’ts). For federal projects the ACOE perform redundant assessments of a project’s impacts to historic resources and endangered/threatened species when issuing Section 404 or Section 10 permits. The ACOE’s function when issuing permits to federal agencies/delegated state agencies should merely be to check a box (if they feel they need to do that) verifying that the permittee has fulfilled their Section 106 and Section 7 Endangered Species Act (ESA) responsibilities. The onus should be solely on the lead federal/delegated state agency to meet their obligations and the lead agency, SHPO/ACHP, USFW, NOAA etc. should be on the hook if the project assessment screws up or misses something; not the ACOE. <br /><br />For private sector/local gov’t permittees the ACOE permit is often the trigger for Section 106. In this case the permittee should be working under the State’s NEPA equivalent which requires an examination of project impacts (the entire project – not just the ACOE permit area) to historic resources and ESA listed species much like NEPA. Ultimately the ACOE needs to overhaul their NEPA process to either provide CATEX’s for issuing permits (an administrative function) or allow the ACOE’s NEPA responsibilities be satisfied by the permittees SEPA. Other federal agencies have policies like this in place so it’s not unprecedented. EPA and NOAA for example take this route when issuing Clean Water Act grants or grants for restoration projects. They can either CATEX the issuance of the grant or adopt the grantee’s NEPA/SEPA as commensurate with the project’s impacts. Ultimately the executors of the project should be required to examine their impacts and make their case to the appropriate agency with designated Section 106 and Section 7 jurisdiction. <br /><br />If the ACOE are not sufficiently insulated from lawsuits for projects they permit perhaps providing additional insulation for the ACOE in the regulations should be examined. Here’s a novel idea; limit the ACOE’s responsibilities and their liabilities to Section 404 of the CWA and Section 10 of the Rivers and Harbors Act. Not the myriad of other laws they have taken under their umbrella. I plan to provide comments to this effect during the public comment period but won’t hold my breath that a reasonable revision of their processes will occur. Nobody is really taking Executive Order 13563 seriously in this overregulated society (it's probably to vague) and bureaucracies like the ACOE typically move towards more unnecessary regulations and empire building rather than streamlining processes, untying their permit writers hands, and reducing their liabilities.Anonymousnoreply@blogger.com