Thursday, October 09, 2014

The U.S. Army Corps of Engineers’ Regulatory Program and Section 106 of the National Historic Preservation Act

A client recently asked me to explain whether and how following Appendix C of its regulatory program regulations (33 CFR Part 325) places the U.S. Army Corps of Engineers in compliance with Section 106 of the National Historic Preservation Act (NHPA), and what authority the Corps had for issuing Appendix C in the first place.  He’s given me permission to generalize my memo to him as a blog posting.

I post this with the caveat that as readers know, I am not an attorney.  I base the following on my 40+ years of experience with Section 106, the Advisory Council on Historic Preservation (ACHP), its regulations (36 CFR Part 800) and the Corps.


Following is the statutory language of Section 106 – i.e. what Congress told the Corps and other agencies to do:
The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under Title II of this Act a reasonable opportunity to comment with regard to such undertaking (16 U.S. C. 470f).
At Section 211 of the law, Congress went on to say:

The Council is authorized to promulgate such rules and regulations as it deems necessary to govern the implementation of section 106 of this Act in its entirety
(16 U.S. C. 470s).

Elsewhere, “Council” is defined to mean the ACHP.  The ACHP is thus the rulemaking body for Section 106; it prescribes regulations that apply government-wide.

Shortly after NHPA’s enactment in 1966, the ACHP issued non-binding procedures laying out how agencies should comply with Section 106, and amended them following issuance of Executive Order 11593.  These procedures were incorporated into the Code of Federal Regulations at 36 CFR Part 800.  They were held to be binding on agencies by some courts of law as early as 1973-4, but the question of their authority was resolved in 1980 when Section 211 was added to the statute.  The ACHP amended its regulations further over the years, notably in 1985-6 when comprehensive amendments were issued.

I’ve outlined all the above to make two points:

1. Section 106, as you can see, says that agencies must take into account the effects of their actions on places "included in or eligible for inclusion" in the National Register.  "Included" places and "eligible" places are given equal consideration.  This has been the case since the early 1970s, when President Nixon made it so in Executive Order 11593 and Congress amended the statute to comport.

2. Congress gave the ACHP, not the Corps, the authority to issue regulations governing how Section 106 is to be complied with.  

Where Appendix C Came From

The government has had authority to regulate discharges into navigable waterways since 1899, when the Rivers and Harbors Act was enacted; the Corps has exercised this authority for many years.  Application of the Corps’ regulatory authority was greatly expanded by the 1972 Clean Water Act (CWA).  During the 1970s and 80s, the Corps substantially elaborated its regulatory program to discharge its expanded responsibilities. 

During the same period, the ACHP was establishing and overseeing implementation of its Section 106 regulations at 36 CFR Part 800.

It soon became apparent that the Corps faced problems in complying with 36 CFR Part 800 with respect to its regulatory program.  That program involves the issuance of thousands of permits for often rather small projects that result in the placement of fill in waterways and wetlands, and the work regulated is done by private parties, often landowners.  The Section 106 regulations were designed with federal agency projects in mind, and didn’t easily accommodate the complex, multi-party nature of the Corps’ program or the small scale of many of its specific projects. 

This was not a unique problem; other federal agencies that issue permits and provide assistance faced and still face similar issues.  The ACHP crafted a means of dealing with them, which was embedded in its regulations at least by 1978, and elaborated upon in 1986[1].  The regulations allowed and encouraged agencies to negotiate and adopt “Programmatic Memoranda of Agreement,” later called “Programmatic Agreements” or “PAs.”  A PA could adjust the Section 106 process to accommodate the agency’s special program needs.  As noted below, the 1986 iteration of the regulations also provided for “counterpart regulations” to serve similar purposes.

Critically, however, a PA was (and is), as its name indicates, an agreement.  The ACHP, as the Section 106 rulemaking body, had (and has) to agree that the PA’s terms meet the fundamental requirements of law laid down by Congress – notably that the PA provides a fair “taking into account” of potential effects on both National Register listed and eligible properties.  Issuance of counterpart regulations also required (and requires) the ACHP’s concurrence.

Throughout the late 1970s and 1980s, the ACHP and Corps wrestled with the problem of developing a PA or counterpart regulations for the regulatory program, with participation by the National Park Service (NPS), National Conference of State Historic Preservation Officers (NCSHPO), National Trust for Historic Preservation, and other parties (I do not recall that tribes were significantly involved).  Negotiations tended to founder on three major issues:

1.     The Corps’ desire to “take into account” only those effects that would occur within areas under its jurisdiction – which it variously defined to include only the affected waters into which fill would be discharged and a slightly larger area called the “permit area.”  The ACHP and others argued that this limitation was inconsistent with the explicit language of the law, which required consideration of effects wherever they might occur.

2.     The Corps’ desire to distinguish between places listed in the National Register and those eligible for it – i.e. those that meet the Register’s eligibility criteria at 36 CFR § 60.4.  The Corps routinely proposed considering only those places listed in the Register and perhaps those that someone else found eligible for listing.  The ACHP and others argued that this too was inconsistent with the statutory language, and placed unfair burdens on State Historic Preservation Officers (SHPOs) and others, who would be expected somehow to determine the eligibility of places they had no particular reason even to know about – using regulatory authorities that they didn’t and don’t have.

3.     The Corps’ desire to take a rather passive approach to its responsibilities, essentially relying on permit applicants, SHPOs, tribes, and the public to bring historic preservation issues to its attention.  While the ACHP and others sympathized with the problems the Corps faced in managing its workload, they were skeptical about relying entirely on others to surface issues.

The Corps’ attempts to draft PAs or counterpart regulations were also so convoluted that many of us doubted that anyone would be able to implement them – a doubt that has proved justified.

In 1980, the Corps attempted what amounts to an end run around the ACHP’s regulations by unilaterally issuing new regulatory program regulations that included, as “Appendix C,” an approach to Section 106 review reflecting the Corps’ preferred way of “meeting” – or ducking – its responsibilities.  The ACHP, National Park Service (NPS), National Trust, SHPOs and others commented negatively on the draft, which was not finalized.  However, in its processing of permits the Corps went ahead and followed its Appendix C in lieu of compliance with 36 CFR Part 800.

Ongoing History of Appendix C

In 1982, the Corps issued a permit in part based on the authority of Appendix C for a riprap project on the Colorado River in Southern California, requiring consideration only of the “permit area” along the riverbank.  The riprap was an essential part of a housing project that would develop a much larger area, and facilitate access to an even larger area of the California Desert by people who would reside in the houses built along the river.  The Colorado River Indian Tribes (CRIT) sought an injunction to halt the project, arguing that the Corps had violated both the National Environmental Policy Act (NEPA) and Section 106 of NHPA by failing to take into account the full effects of the project.  The court agreed, and enjoined the project (See attached analysis of CRIT v. Marsh from the ACHP’s worldwide web site).

The Corps did not appeal CRIT v. Marsh, so it remained a precedent only in the Southern District of California.  The Corps has dealt similarly with subsequent cases in which courts ruled against its use of Appendix C.  Meanwhile it continued using Appendix C whenever it could, complying reluctantly and often half-heartedly with 36 CFR Part 800 when SHPOs and the ACHP – or the courts – forced it to do so. 

In 1990, the Corps re-issued its regulatory program regulations, 33 CFR 325, including Appendix C, and managed to obtain approval from the Office of Management and Budget to finalize them despite the objections of the ACHP and others.  In 2005 and 2007, it announced to the world that it had discerned the need to revise Appendix C and issued “interim guidance” for its implementation that effectively only muddied the waters. 

This brings us to the most recent instance I know of in which the Corps has tried to explain its application of Appendix C; it’s in an email of September 18, 2014 from Corps Seattle District Cultural Resource Manager Chris Jenkins to Washington SHPO Allyson Brooks, and was copied to me.
Appendix C Today, as Represented by the Seattle District

Mr. Jenkins asserts that:

….the USACE Regulatory Program utilizes Appendix C, dated June 29, 1990, of its regulations at 33 CFR 325 and the Interim Guidance, dated April 25, 2005 and January 31, 2007, to comply with Section 106, case law, and applicable EOs.  

This is accurate as far as it goes, but I believe the ACHP and others (certainly including this writer) would disagree as to whether the Corps “complies” with Section 106 or anything else by “utilizing” Appendix C.

Mr. Jenkins goes on: 

Appendix C followed the rulemaking process and was approved by Office of Management and Budget.  The Appendix C regulations were properly promulgated as standalone regulations establishing the process by which the Corps fulfills the requirements of the National Historic Preservation Act. 

Whether Appendix C was “properly” promulgated is a matter of opinion.  Obviously the Corps thinks so, and in 1990 it prevailed upon the Office of Management and Budget to agree.  To the best of my knowledge the question has not been tested in court.  Note, however, that Section 211 of NHPA directs the ACHP to issue regulations by which agencies fulfill the requirements of NHPA Section 106.  NPS is the rulemaking authority for other parts of NHPA.  NHPA gives no authority to the Corps.

Mr. Jenkins then lapses into near fabrication, as follows:

The ACHP published regulations found at 36 CFR 800 governing compliance with Section 106 on January 11, 2001 and last revised them in 2004.  Although ACHP’s regulations contain a process for agencies to develop counterpart regulations and receive approval for their use by the ACHP, the regulations did not contain a provision to address other agencies’ regulations that had been established prior to the publication of 36 CFR 800.  As such, the USACE continues to legally operate under Appendix C and the interim guidance (emphasis added).

Mr. Jenkins would have us believe that the ACHP’s regulations date only to 2001, and that the Corps’ issuance of Appendix C thus pre-dates them.  Perhaps a true Millennial, he ignores the fact that there was a twentieth century, during which the ACHP issued its regulations and revised them several times.  The 1986 version of 36 CFR Part 800, at § 800.15, in fact “contained a process for agencies to develop counterpart regulations,” as follows:

In consultation with the Council, agencies may develop counterpart regulations to carry out the section 106 process. When concurred in by the Council, such counterpart regulations shall stand in place of these regulations for the purposes of the agency's compliance with section 106 (emphasis added).

Appendix C has not been concurred in by the Council.  Not to put too fine a point on it, the Corps is dissembling.

To its credit, the Corps has now and then recognized and acknowledged that there are problems with Appendix C, and has made rather hamhanded unilateral attempts to correct them.  Thus Mr. Jenkins says that:

In addition, the Interim Guidance dated April 25, 2005, directly links the Regulatory Section 106 process to the definitions and processes within 36 CFR 800.

“Links,” perhaps.  “Makes consistent,” no. 

The “Interim Guidance” simply asserts that the “definitions and processes within 36 CFR 800” apply to Appendix C, but the structure and language of Appendix C are such that those definitions and processes cannot be applied.  It’s equivalent to the so-called Islamic State saying that Christians are free to practice their religion in Mosul as long as it involves prostration to Allah five times per day and acknowledgement that The Prophet (PBUH) is the messenger of God.

Why Does It Matter?

As noted above, there are three major ways in which Appendix C is inconsistent with 36 CFR Part 800.  These discrepancies can have serious practical impacts on the ways in which historic properties are taken into account (or not) in what the Corps insists is Section 106 review of its regulatory actions:

1.     36 CFR Part 800 has agencies identify historic properties and consider effects within an area or areas of potential effects (APE), defined to include all those geographic areas in which an undertaking may have direct or indirect impacts on historic places.  Appendix C largely limits identification and effect consideration to a “permit area” that more or less represents only the area over which the Corps has jurisdiction.  I use words like “largely” and “more or less” advisedly – the appendix applies a number of intricate tests to establish what areas the Corps will and will not consider.  The bottom line, however, is that the Corps’ attention is almost exclusively focused on effects that will occur within the areas over which it exercises jurisdiction, not the (often more expansive) areas where direct and indirect effects are likely to occur. 

       In the case that stimulated Mr. Jenkins to explain himself to Ms. Brooks – the so-called “coal train” project between the Powder River Basin and the Washington coast -- under 36 CFR Part 800 the project APE would include all those land and water areas where effects on historic properties might occur – for instance, offshore areas subject to impact by ship traffic, inland areas subject to the visual, auditory, and other effects of train traffic (and derailments, fires, and discharge of coal dust), and the landscape/seascape in which the coal terminal would be built at Cherry Point on the Washington coast. 

Under Appendix C at least the bulk of the Corps’ attention would focus on the “permit area,” which for all practical purposes comprises only the waters at Cherry Point and perhaps elsewhere into which the project would discharge fill.

2.     36 CFR Part 800, like Section 106 itself, gives equal consideration to places listed in the National Register and unlisted places that meet the National Register criteria (36 CFR § 60.4).  Part of the responsible federal agency’s fact-finding job is figuring out whether unevaluated places meet the criteria, in consultation with the SHPO, Indian tribes or Native Hawaiian organizations, and others. 

Under Appendix C, the Corps addresses what it calls “designated historic properties,” a term it made up seemingly to embrace listed places and places that the Corps and the SHPO agree meet the National Register criteria.  How it addresses them – if it does – depends on a rather complicated formula involving location relative to the permit area and the vigor with which the SHPO or the Keeper of the National Register (who is not ordinarily involved, but somehow Appendix C supposes will find out and intervene) asserts the significance of the place.  In practice, this means that the Corps focuses attention primarily on places already listed in the Register or determined eligible by someone other than the Corps.  The Corps is a passive participant; if nobody else is in a position to demonstrate the significance of a place, the Corps figures it can ignore it.

3.     Section 106 charges Federal agencies with implementing its requirements, and 36 CFR Part 800 does the same.  Appendix C takes a different approach.  The Corps publishes a notice that a permit application has been filed, and allows those interested to react.  In preparing the permit notice, the applicant is supposed to gather certain data, including data on the presence or absence of historic properties in the permit area.  Depending on how the applicant’s consultants’ interpret the intricacies of Appendix C, this can mean many different things.  Many consultants in my experience find Appendix C to be so vague and complicated that they ignore it and do their best to follow 36 CFR 800 instead.  This sometimes gets them in trouble with the Corps, but even if it doesn’t, the bottom line is that the Corps may exercise no initiative whatever to find out what impacts the proposed project will have; it simply receives information from others, and finds ways to react – or not.  This is particularly a problem with respect to consultation, with tribes and others.  Under 36 CFR Part 800 the Corps is responsible for consultation with tribes and other interested parties.  Under Appendix C the Corps will, in effect, consult only if forced to do so, and there is no real way that consultation relates to the intricacies of the Appendix C “process.” 

In summary, then, to the question “does following Appendix C place the Corps in compliance with NHPA Section 106,” I have to say no, because (a) Appendix C is not a legal counterpart regulation established per 36 CFR Part 800; and (b) Appendix C does not provide substantively for the Corps to take into account the effects of its permit actions on districts, sites, buildings, structures and objects included in or eligible for inclusion in the National Register.

As to what authority the Corps had for issuing Appendix C, the Corps had authority to issue its regulatory program regulations, and it tricked the Office of Management and Budget into thinking that this authorized it to issue Appendix C, but as far as I can tell it did not in fact have the authority to issue a Section 106 counterpart regulation without the concurrence of the ACHP.  

Colorado River Indian Tribes v. Marsh, 605 F. Supp. 1425 (C.D. Cal. 1985).

Plaintiffs, Indian tribes and an environmental organization, sought to enjoin the U.S. Army Corps of Engineers from issuing a permit to a developer for the placement of riprap along the western shore of the Colorado River in California. The purpose of the riprap was to stabilize the riverbank and establish a permanent boundary line for private property that the developer proposed to subdivide and develop into a residential and commercial community. The site of the development, known as the River City project, was directly across the river from the Colorado River Indian Reservation and directly south of additional portions of the reservation lying on the west side of the river. The land abutting the development site on the west was owned by the United States and administered by the Bureau of Land Management (BLM) of the Department of the Interior. The BLM land, an archeological district, included several significant cultural and archeological sites.

The developer applied to the Corps for the riprap permit in April 1978. The following fall, the Corps prepared an environmental assessment under the National Environmental Policy Act (NEPA) and concluded that, because significant impact upon the environment would result from the developer's proposed project, an environmental impact statement (EIS) should be prepared. The draft EIS was prepared and published in September 1979. In January 1981, the Corps informed the developer that a thorough cultural resources survey of resources on and near the proposed development site was needed before the Corps could complete the final EIS.

In June 1981, however, before the survey was begun, the Corps retracted the draft EIS as a result of changes in Corps policy regarding its jurisdictional authority and announced that no EIS and no further cultural resource evaluation were required. The Corps' decision to retract the draft EIS was apparently made in conformity with its proposed cultural resource regulations published in 1980, regulations that had never been adopted in final form or incorporated into the Code of Federal Regulations.

Under the proposed regulations, the Corps was required to assess both direct and indirect effects of its permits on properties listed or officially determined eligible for listing in the National Register of Historic Places. This review requirement extended beyond the area in which the permit would have direct physical effects to the "affected area," that area within which direct and indirect effects could be reasonably expected to occur.

For properties that were not listed or officially determined eligible for listing in the Register, but that might be eligible for the Register, the proposed regulations limited the Corps' review to the area within the Corps' jurisdiction‹the "permit area," defined as that area which would be physically affected by the proposed work.

The Corps issued the riprap permit to the developer on May 21, 1982. Plaintiffs then filed this action, alleging that the Corps failed to comply with NEPA and the National Historic Preservation Act (NHPA).

After discussing the factors that must be present for a preliminary injunction to be granted, the court addressed the likelihood of plaintiffs' success on the merits of their case. Defendants first contended that no EIS was necessary under NEPA because Federal involvement in the River City project was minimal and "major Federal action" was therefore lacking. The court disagreed, finding that NEPA requires assessment of both direct and indirect effects of a proposed Federal action on both "on site" and "off site" locations. 605 F. Supp. At 1433. That there was minimal Federal involvement in the project did not excuse defendants from compliance with NEPA, for "it is not the degree of Federal involvement that influences the standard of living of our society, but is instead the potential and degree of impact from development that bears upon the overall welfare and enjoyment of our society." Id. at 1432. "Major Federal action" does not have a meaning under NEPA independent of "significantly affecting the quality of the human environment." Id. at 1431.

The Corps' limitation of the scope of its environmental assessment of the bank stabilization activities and its resulting conclusion that there would be no impact on cultural resources were improper and contrary to the mandate of NEPA. Id. at 1433.
The court next addressed plaintiff's claim that the Corps had violated NHPA by distinguishing between properties actually listed in or determined eligible for the National Register and properties that might be eligible for the Register and by affixing different historic review responsibilities to each. The court held that this distinction between properties and different scopes of responsibility was at odds with NHPA and the regulations of the Advisory Council on Historic Preservation implementing Section 106 of NHPA. Id. at 1438. Using the Council's definition of "eligible property" in Section 800.2 of its regulations as encompassing all properties that meet the criteria for inclusion in the Register, the court concluded that, in enacting NHPA, Congress intended to protect all properties that are of inherent historic and cultural significance and not just those that have been "officially recognized" by the Secretary of the Interior. Id. The court cited Executive Order No. 11593 and Section 110(a) of NHPA as support, finding that Federal agencies must exercise caution to ensure the physical integrity of those properties that appear to qualify for inclusion in the National Register. Id. at 1435.

The Corps' action in assessing the effects on properties that might qualify for inclusion in the National Register solely within the "permit area" and its failure to survey and consider the effects on like properties in the broader "affected area" was a breach of its responsibilities under NHPA. Id. at 1438.

Finally, the Court granted a preliminary injunction, finding that irreparable harm to cultural and archeological resources as a result of the development was possible. Id. at 1434-39. 

[1] At that time I was in charge of overseeing Section 106 review for the ACHP, and was among the staff members substantially responsible for negotiating and drafting the regulations.


Unknown said...

Hello Tom,

To go along with your post, I just came across this law article by Melissa Lorentz entitled "ENGINEERING EXCEPTIONS TO HISTORIC PRESERVATION LAW: WHY THE ARMY CORPS OF ENGINEERS’ SECTION 106 REGULATIONS ARE INVALID," which was published in the William Mitchell Law Review this year. The link to the article is:

Ms. Lorentz reaches similar conclusions as you concerning the Army Corps' Appendix C.

Monty Rogers

Unknown said...

Hello Tom,

To go along with your post, I just came across this law article by Melissa Lorentz entitled "ENGINEERING EXCEPTIONS TO HISTORIC PRESERVATION LAW: WHY THE ARMY CORPS OF ENGINEERS’ SECTION 106 REGULATIONS ARE INVALID," which was published in the William Mitchell Law Review this year. The link to the article is:

Ms. Lorentz reaches similar conclusions as you concerning the Army Corps' Appendix C.

Thomas F King said...

Neat! Thanks, Monty; I didn't know about that and can doubtless make good use of it.

Anonymous said...

Hi Tom,
I was wondering how ACHP's Executive Director, Robert R. Garvey's Memorandum to the State Historic Preservation Officers, dated August 21, 1979, regarding the ACHP's and Corps' intent to adopt counterpart regulations for the Corps' permitting program persuant to Section 800.11 factors into the discussion. The Memorandum specifically states that revised procedures (apparently the predecessor to the published Appendix C) replaced the Corps' earlier December 1978 draft regulations and that the revised procedures would be treated as interim guidance until the final rule was published. The Memorandum said the the revised procedures would be published as a proposed rule for public review and comment in the Federal Register (as Appendix C). It did not mention a Programmatic Agreement, nor does 36 CFR Part 800 discuss Programmatic Agreements in the January 30, 1979, Final Rule. It isn't until the September 2, 1986, Final Rule that Programmatic Agreements are added to the regulation under 800.13, while 800.15 of the same Final Rule continues to address counterpart regulations. I think some of this history has been overlooked or forgotten.

Thomas F King said...

Well, Annon, would you care to discuss how the Sermon on the Mount figures in? The Code of Hammurabi? Look, 35 years ago Bob Garvey wrote a memo about a then draft regulation that the Corps and ACHP were working on. Many commenters objected, and the ACHP, unlike some government agencies, in those days did pay attention to public comments. Things changed, and the ACHP revised its regulations; meanwhile the Corps stuck to and eventually adopted its idiotic appendix, to which the ACHP and others continued and continue to object, and which makes no more sense now than it did in 1979. Rather than further belabor who was stupid enough to accept Appendix C in the dim fog of antiquity, it strikes me that it might be an act of some statesmanship for someone at the Corps to make a real -- I stress REAL, as opposed to standard practice -- effort to find a sensible way to comply with the actual requirements of law.

The MooCow said...

I don't understand how this chicanery has been allowed to go on without going to court, and the Dakota pipeline fiasco is the result. The ACHP, the National Trust, et al should take them to court over this project now, IMO.