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

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, or by email to – 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.


Anonymous said...

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.

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.

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.

Thomas F King said...

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.

Anonymous said...

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.

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.

Thomas F King said...

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 King said...

Here's what I've sent the Corps as a comment:

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.

Thank you for the opportunity to comment.

Anonymous said...

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.
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.    
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.
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.