Wednesday, November 12, 2014


On October 9th, 2014 I posted a discussion of Appendix C to the Corps of Engineers’ 33 CFR 325, the regulations governing permitting under Section 404 of the Clean Water Act.  Appendix C purports to be the process by which the Corps takes the effects of permit actions on historic places into account under Section 106 of the National Historic Preservation Act (NHPA).  I reminded readers that Appendix C has never been accepted by the Advisory Council on Historic Preservation as an alternative to its own regulations (36 CFR Part 800), and opined that the Corps had essentially hoodwinked the Office of Management and Budget (OMB) into allowing it to finalize regulations containing the appendix – which is inconsistent with the plain language of Section 106 and to which the ACHP, among others, continues to object.

On October 23 I received the following email from someone calling him-or-herself “Freethinker.”

Saw your blog - thought you might be interested in these historical documents. 

The second part of the first attachment is an ACHP letter to the SHPOs in 1979 supporting the Corps' concept of permit area and recognizing the Corps' limits, etc. back when the 800 regulations actually gave each agency specific authority to promulgate counterpart regulations (800.11 in 1979 then 800.15 in 1986 - attached as well). 

Everyone keeps stating that Appendix C is invalid because it was never approved by ACHP.  I'd be curious as to what constitutes approval.  Is this 1979 letter approval?  The 800 regulations never say either.  Seems like rulemaking under the APA requires OMB approval.  Everyone knows OMB coordinates extensively with other federal agencies and interest groups before approving any rule.  ACHP would have easily been involved in that process.  Not sure the last time an agency "tricked" OMB either.

Your argument would be strengthened if you could reference a letter from ACHP specifically objecting to Appendix C during rulemaking or rescinding their 1979 support.  If you find such a letter, please feel free to share it. 

Freethinker attached copies of the ACHP’s regulations as they existed in the 1980s, and a 1979 letter from the ACHP to the SHPOs introducing an early version of Appendix C on which it was then negotiating with the Corps – and indeed expressing acceptance of it.

I responded:

Thank you, Free -- whoever you are.  I thought at first that you'd caught me in a serious senior moment.  But what you've missed, I believe, is that the Corps regulation with the Appendix C in which the ACHP concurred was a draft, and it was not finalized in either quite that form or in the regulatory context that at the time justified it.  

As I recall -- I arrived at the ACHP about the time the draft was published -- we got a lot of negative reaction to our memo on the draft and continued to negotiate, while the Corps continued to tinker with the overall 325 regulation.  Meanwhile the NHPA was amended in 1980, and then we all plunged into the adventures of the Reagan administration.  During that interesting time there was the widespread expectation that the 106 process would go away altogether.  That didn't happen, of course, but the regs did change significantly, notably including provisions that resolved -- or should have resolved -- the eligibility issues that justified the Corps in its original desire for adjustments to the process.  But rather than work creatively with the revised 106 regs, the Corps decided on its own to brush off and further tinker with its old draft, then -- in my view -- indeed tricking OMB into letting them issue a final.  I rather suspect that OMB gets tricked more often than its denizens, in their self-defined omniscience, would like to think. In any event, I think the "final" Appendix C is not exactly the one in which we concurred, and it was applied to an environment that was a good deal different from the one that existed in those early days. 

Anyway, thanks much for clarifying the early history of this conflict.  Perhaps it'll be helpful in encouraging its resolution. Someday.

On October 29 Freethinker lobbed back the following:

Thank you for your insight, Mr. King.  The history of the NHPA, 800 regs, and Appendix C are truly fascinating (and perhaps even disturbing).

It leaves me wondering why ACHP has not raised what appear to be valid concerns to Dept of Justice and OMB for a ruling, similar to how ACHP's own existing/proposed regulations were determined invalid by DOJ in 1983.  Seems like an easy enough resolution of the issue could be possible and end the debate.  Do you know why the matter has not been elevated?  Or why the matter has not been explicitely addressed in a court case?

Fortunately – because I fear I don’t keep all these ancient events as fresh in my memory as Freethinker apparently does – I had just been corresponding with Maryland SHPO Rodney Little about the fairly exciting piece of our collective past into which Freethinker was dredging, and Rodney had shared a key historical document.  So I was able to respond to Freethinker as follows;

And thank you for yours, Free.  I've had many questions over the years about the ACHP's unwillingness to take Section 106-related bulls by the horns, and can't offer an answer to your query.  With regard to the 1983 DOJ "determination," I think it needs to be recalled that the result was rather vigorous Congressional support for the ACHP's regulations (See attached), which seemingly led DOJ and OMB to cool their jets.

The attachment was a letter dated March 27, 1985 to then OMB Director David Stockman, signed by James McClure (Chairman, Senate Committee on Energy and Natural Resources), Malcolm Wallop (Chairman, Senate Subcommittee on Public Lands and reserved Water), Morris Udall (Chairman, House Committee on Interior and Insular Affairs) and John Seiberling (Chairman, House Subcommittee on Public Lands and National Parks).  After expressing the committee’s “increasing concern” about the course of the ACHP’s ongoing efforts to update its regulations, including the opinion of the Department of Justice – which said, in effect, that the ACHP had exceeded its authority by saying that in seeking its comments on undertakings an agency needed to establish what the effects of such undertakings might be, in consultation with others – and reminding Stockman that the committees had looked into the matter and issued two reports supportive of the ACHP’s approach – the chairmen said:

We now find ourselves compelled to go through the redundant exercise of specifically amending the Council’s regulatory authority to “legitimize” regulations that we are satisfied fall within the Council’s existing powers.  Nevertheless, it is clear that nothing less will sway the Justice Department from its stubborn, though mistaken, position.

Legislation will be introduced shortly and as chairmen of respective committees and subcommittees we are committed to prompt action to correct the perceived deficiency.  Until tht effort is complete, we request that you defer any action on revised Section 106 regulations.  It would be most unfortunate for the preservation of our national heritage to dismantle a system that has proved its worth for the past two decades as an effective method of balancing the needs of contemporary society with the conservation of historic properties.  It would be the height of folly to dismember that system on specious legal grounds while the Congress was in the process of legislatively resolving the question once and for all.

I realize that for most readers – if any have gotten this far – all this stuff has marginal interest; it’s just history, after all.  But as we approach the 50th anniversary of NHPA, I think it may be useful to remember that there was a time – about halfway back to the time of NHPA’s Big Bang – when a president and his Department of Justice (with, it should be noted, help from his craven and power-hungry National Park Service) took a serious run at gutting the Section 106 regulations.  The Justice Department and OMB, in effect, directed the ACHP to remove from the regulations all that stuff about consulting people, identifying and evaluating historic properties, and determining and resolving adverse effects.  The ACHP, they said, should bloody well just comment on whatever other agencies told it about their proposed undertakings.

And it’s useful to remember – if rather wistfully – that at the time there was a Congress whose members were willing to stand up to the White House and say – as I remember Rodney putting it at the time – “If you’re feeling froggy, hop on over.”  In other words, if you want a fight we’ll give you one, and you may not be happy with the results.  You just may find yourselves with a nastier law than the one you have now.
In the event, the White House backed down.  Never saying so, of course; presidential DNA isn’t programmed for such admissions.  But they backed down, and the regulations that we DID revise and issue during the 1980s retained and elaborated on such matters as consultation, identification, evaluation and effect determination and resolution (with, I think in retrospect, some unfortunate unintended consequences).  And Congress DID enact amendments to NHPA, in 1992, that clarified the ACHP’s rulemaking authority and added Section 110(a)(2)(E), designed to make it clear that consultation, identification, evaluation, and the negotiation of agreements on resolving adverse effects were fundamental to “taking effects into account.”  Section 110(a)(2)(E) says: 
Each Federal agency shall establish…, in consultation with the Secretary (of the Interior), a preservation program….  Such program shall ensure …. that the agency's procedures for compliance with section 106 of this Act … are consistent with regulations issued by the Council pursuant to section 211 of this Act (and) provide a process for the identification and evaluation of historic properties for listing in the National Register and the development and implementation of agreements, in consultation with State Historic Preservation Officers, local governments, Indian tribes, Native Hawaiian organizations, and the interested public, as appropriate, regarding the means by which adverse effects on such properties will be considered.
Over twenty years on, the Corps has yet to establish such a program; instead it continues to rely on Appendix C.

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