Tuesday, December 27, 2011

The Archaeology Channel

If you're looking for a worthy place to send a year-end donation, and are turned off by the major charities, please consider The Archaeology Channel (TAC) -- see message below from its guru, Ric, Pettigrew.  I donate a pittance annually.

Happy new year,

To our existing and recent supporting TAC Members and friends: In these economically difficult times, our nonprofit organization, Archaeological Legacy Institute, faces some tough challenges in maintaining and growing our programs, including The Archaeology Channel (www.archaeologychannel.org), our very popular visitor-supported streaming-media Web site devoted to telling the human story. This last week of the year is a special time for us, as many people choose this time to make their 2011 tax-deductible contributions.

If you are one of those people or you might consider becoming one, please take this opportunity to follow through with that. We have been sending out regular renewal reminders to supporting Members, so you might have received a message saying your renewal anniversary date is passed or is coming up soon. If that is the case, or if you want to make a supplementary contribution, please go ahead and do that now! See the instructions at http://www.archaeologychannel.org/member/member.htm. By pooling small contributions from many people, we will create a more stable and reliable income stream that is less dependent on the decisions of large sponsors. This is an important key to the success of TAC.

With your help, we are working to achieve some key breakthroughs in 2012. In the coming year, among other things, we plan to complete the make-over of TAC and begin development of a new nationwide cable TV channel to show content that we currently are not showing on TAC. The more financial support we have, the faster and more effective we will be in pursuing these initiatives.

If you have friends or associates who might be willing to support our public mission, please point them in our direction. One way to do that would be to forward this message to them. As you know, our standard Individual Membership is $45 and an Organizational Membership is $250, but we accept any amount, smaller or larger. All the information needed to renew or to become a supporting Member is on our Web site at http://www.archaeologychannel.org/member/member.htm.

Just five days left in 2011! Thanks very much.

Rick Pettigrew
Archaeological Legacy Institute

Monday, December 26, 2011

Good (I think) On-Line Instruction re. Tribal Consultation

For all those who keep asking about training in consultation with American Indian tribes (2 or 3 in the last year or so): the Natural Resources Conservation Service (NRCS) in the U.S. Department of Agriculture has just come out with a nice (I think) on-line class that's available free to the public (You do have to register, but it doesn't cost anything).  It can be accessed at http://www.tribal.golearnportal.org/ .  Lots of good information, and it strikes me as quite a balanced, accurate presentation with plenty of good advice.

Saturday, December 24, 2011

The Corps of Engineers Needs an Appendectomy


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 regulatory.review@usace.army.mil – 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.