Sunday, May 22, 2016

Bombing Boise: Confusing Government’s Authority to Regulate with its Responsibility to Consider Environmental Impacts

Under Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403) and Section 404 of the Clean Water Act of 1972 (33 U.S.C. 1344), the U.S. Army Corps of Engineers (Corps) regulates the discharge of fill into water bodies defined as parts of the “waters of the United States.” Often the Corps’ Section 10/404 permit authority is the only federal “handle” that makes a privately funded project on non-federal land subject to review under such environmental impact assessment laws as the National Environmental Policy Act (NEPA) and Section 106 of the National Historic Preservation Act (NHPA).  Often this “handle” is quite a small one in geographic terms vis-à-vis the overall project; in other words, the discharge of fill into a water body may be a small part of a large project whose effects otherwise are not subject to U.S. government regulation.

In consultations under the NHPA, and in litigation under both the NEPA and the NHPA, consulting parties and plaintiffs often argue that the Corps must consider the effects of the entire project on the environment (or in the case of the NHPA, on historic properties). The Corps typically responds that it can consider only what falls within its regulatory jurisdiction. Exactly how much this constrains the Corps’ review of impacts varies from case to case, depending on how the Corps in each case interprets the esoteric language of its regulatory program regulations, 33 CFR 320-338.  Generally speaking, however, the Corps position is that it can consider only effects that may occur within the “permit area” of a given proposed discharge or stream crossing, which more or less means the waters into which the fill will be discharged or which will be crossed by the project, plus certain appurtenant areas where things may be done that are pretty directly related to the discharge or crossing (access road construction, etc.).

Although the Corps' early history of success with this limited interpretation was spotty (c.f., in recent years courts have often agreed with the Corps’ view of its responsibilities.  For example, in Sierra Club v. U.S. Army Corps of Engineers, 803 F.3d 31 (D.C. Cir. 2015), the court held that the Corps was “not required to conduct NEPA analysis of the entirety of the … pipeline, including portions not subject to federal control or permitting.”

I think that the Corps, and the court, have confused the extent of a project's likely environmental effects with the extent of government regulatory authority. This confusion can be illustrated by reference to a hypothetical example that I refer to as “bombing Boise[1].” I am quite sure I outlined this hypothetical in some version of one of my ancient publications, but I can’t now locate it, and if I can’t, it’s a sure bet that no one else can, so here it is again.

Suppose that the owner of a tract of marshland in central Florida – call him Donald – has developed a visceral dislike for the city of Boise, Idaho. Donald, who has far more money than he knows what to do with, decides to wipe that city off the map. To achieve this goal, he arranges for the purchase of an intermediate range ballistic missile with a nuclear warhead (Remember, this is hypothetical). He plans to launch this missile toward Boise from his marshy ranch in central Florida. To do so, he must fill some 2.5 acres of marsh in order to create a stable launch pad. A law-abiding citizen, Donald applies for a permit from the Corps.

Here’s the question: in considering whether to issue Donald a permit for his project in Florida, must the Corps consider the likely effects of doing so on the environment of Boise, Idaho? Boise is a very long way from the waters of the U.S. into which Donald will discharge his fill. It is certainly well outside Donald’s “permit area” as defined in the Corps’ regulations. Donald may or may not be able to get his bird off the ground, and it may or may not be shot down by Boise’s missile defense system, but let’s set that aside. Should the Corps consider the effects of bombing Boise when it considers Donald’s permit application?

The court in Sierra Club seems to say “no,” because the Corps has no “regulatory control” over what the project in the marshes of central Florida may do to distant upland areas like Boise.

But is regulatory control over areas of impact actually relevant?

The NEPA, at Section 102(C), directs that federal agencies prepare statements analyzing environmental impacts of any federal action “significantly affecting the quality of the human environment.” The NHPA, at Section 106, says that federal agencies must take into account the effects of their undertakings “on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register (of Historic Places).” Neither statute says that agencies are to consider only effects that are subject to their “control,” regulatory or otherwise.

In the case of Donald’s project, arguably the Corps’ “regulatory control” extends only to the wetlands he proposes to fill, and the adjacent or nearby areas that will be impinged upon by roads, liquid oxygen lines, warhead containment facilities and the like. But the area in which environmental impacts may occur if the Corps gives him the permit is much larger, surely including Boise. Can the Corps ignore what Donald plans to do to the capital of Idaho? I don’t think so -- regardless of the ostensibly limited extent of the Corps' regulatory control.

And of course, the Corps does have regulatory control over Donald's proposed launch site. It can -- presumably -- say no to his project in order to protect Boise, even if filling Donald's 2.5 acres of wetlands will do no damage whatever to waters of the United States. If Donald were to build his pad on dry land where he didn't need a Corps permit, then of course the Corps would not have regulatory control; the Corps would not be a player in Donald's scheme, and Donald could bomb Boise to his heart's content. But since the Corps is a player, it seems to me that it has to consider the impacts of Donald's plans, wherever they may occur.

I think the confusion between “area of regulatory control” and “area(s) where environmental impacts may occur” that's reflected in the Sierra Club decision results from a misinterpretation of what the Sierra Club court referred to as "NEPA analysis" -- that is, the work that must be done to determine what a projects's environmental impacts may be and what to do about them. It is widely assumed that to perform such analysis, under the NEPA or under a more specific statute like the NHPA,  the responsible federal agency must require that detailed studies be done in order to determine what effects will occur – counting how many endangered owls live in the potentially affected area or how many ancestral indigenous graves may lie hidden in its soil. Doing these things costs money, and environmental consulting firms understandably assure agencies and regulated industries that they must be done in order to assess effects. Those who pay the bills for such work naturally seek relief, and the Corps has seized on its lack of “regulatory control” over areas of potential effect as the means of providing it.

“You can’t possibly require me to count endangered lizards and old buildings in Boise as a condition of my permit in Florida!” Donald thunders, and the Corps quickly moves to mollify him. “No sir, no sir, don’t you worry, sir. Boise isn’t even in our Division; we don’t have any – er – regulatory control over what your project does there.”

This is obviously nuts. The Corps should certainly consider what giving Donald his permit may do to Boise and its environment, and if it determines that the public interest demands saving the city at the expense of Donald’s right to use his Florida marshland as he sees fit, it should deny the permit. Exactly what processes the Corps may need to employ in giving the matter such consideration, and what studies may be necessary (if any) depend on the character of the case. In Donald's case, one doesn't need to find and evaluate every National Register eligible building in town to know that nuking them all will have adverse effects, or that other aspects of the city's environment (like the welfare of its resident lizards, owls, and human beings) will be drastically impacted.

Turning to a real-life case, consider the Dakota Access Pipeline (, a proposed almost 1200-mile oil pipeline between northwestern North Dakota and southern Illinois. Its construction will require the Corps to issue over 200 permits for water-crossings; without these crossings the project cannot be built. Should the Corps look at the impacts of the whole project – as affected Indian tribes and the Advisory Council on Historic Preservation, among others, propose? Or should it spend its time on 200+ individual permit actions and ignore the project’s overall effects? The Corps, I’m told – citing Sierra Club – says it can do only the latter. This strikes me as no more justified – or consistent with the intent of the NEPA and the NHPA – than letting Donald bomb Boise without first inquiring into the impacts of doing so. The Corps should stop playing semantic games with its regulatory language and sit down with the tribes and others concerned to determine how to address the project's overall potential effects.

[1] Oddly enough, the city of Boise, Oklahoma (not Idaho) WAS bombed during World War II; see

Monday, May 16, 2016

National Register Bulletin 38: The Unauthorized Update -- And -- Unauthorized Answers to Frequently Asked Questions About Traditional Cultural Places

In 1990, the National Register of Historic Places, a division of the U.S. National Park Service, published National Register Bulletin 38, “Guidelines for Identifying and Evaluating Traditional Cultural Properties,” authored by Patricia Parker and me.  Chapter 2 of my 2003 book, Places That Count (, recounts how Bulletin 38 came to be, and the early reaction to it.

Bulletin 38 has been used – sometimes to good effect – by American Indian Tribes and a few other communities to ensure that places of traditional cultural value to them are considered by federal agencies whose actions may destroy or damage them. As a result, such agencies, and some of the industries they regulate, have been pretty unhappy with it. So have some State Historic Preservation Officers (SHPOs) and cultural resource management consultants who prefer to acknowledge the cultural value only of places that professional historians and archaeologists can define and evaluate.

In response to complaints from those who find Bulletin 38 altogether too populist, in 2012 NPS launched an effort to rewrite it. This effort first involved a widespread effort to solicit comments from all concerned, which resulted in receipt of a large corpus of written comments plus notes on a series of public meetings and meetings with tribes and intertribal groups.

As is its wont, NPS then dithered, regularly assuring the world that it was thinking about the comments, but doing nothing. I – among others – became concerned that (a) its people would end up writing something unfortunate or that (b) by being forever under review, Bulletin 38 would come to be regarded by practitioners as less authoritative than other National Register direction. So in early 2014 I proposed to NPS that it contract with me to digest the comments and prepare a revised draft. Rather to my surprise, NPS responded favorably to my proposal. The contract was let, the comments and notes were shared with me, and I went to work. As an NPS executive with her own fish to fry (left to rot by NPS after her death in December of 2014, but that’s another story), Parker did not participate in the effort.

It soon became apparent that the great bulk of the comments NPS had received dealt not with Bulletin 38 itself, but with how traditional cultural places are dealt with by agencies and others in planning and impact assessment under the National Historic Preservation Act (NHPA), and to some extent under the National Environmental Policy Act (NEPA). As a result, NPS officials and I agreed that we should draft not only a new version of Bulletin 38 but also a set of “frequently asked questions” (FAQs) – and answers – about how such places should be considered and addressed, particularly under Section 106 of the NHPA. Since the Advisory Council on Historic Preservation (ACHP) oversees Section 106 review, NPS invited the ACHP staff to participate in developing the FAQs, and they agreed to do so. A series of quite congenial meetings and draft reviews ensued, leading to my submission of complete drafts of the Bulletin and FAQs in August/September 2014.

Some time passed, and then the ACHP staff returned a very substantially rewritten “draft” of the FAQs, which they made clear they expected to become the basis for any further discussions. They declined to explain the rationale for their changed approach, or to negotiate with both my draft and theirs on the table. They declined, in fact, even to identify the individuals responsible for the new draft, or to share mark-ups of working documents. My review of the ACHP draft, however, made it apparent to me that its main thrust was to muddle and obfuscate, wherever possible substituting lengthy paragraphs full of weasel words for straightforward declarative statements, and in some cases (for example, in treatment of confidentiality under Section 304 of the NHPA) to insist on interpretations  of law and language that are simply (in my reasonably well informed opinion) simply wrong. And again, this revised draft was presented as a non-negotiable fait accompli.

Needless to say, I objected vigorously, and both NPS and ACHP Chairman Wayne Donaldson did what they could to promote a meeting of the minds. These efforts failed; the ACHP staff was simply not willing to come to the table unless their draft formed the basis for consultation. By this time (early 2015), my contract had run out, I had performed all the work it called for, and I was coping with Parker’s untimely demise, so NPS paid me off and went its way. Its representatives have, however, kept me more or less informed of progress, or lack thereof. Early this year I was given the opportunity to comment on another draft of the FAQs, which usefully contained images and examples, but remained, in my opinion, both obfuscatory and unhelpful.

I have come to the conclusion that in all probability an updated Bulletin 38 and related FAQs will never see the official light of day, so in order to allow interested people to have something to consider, I've posted -- on at -- the drafts I submitted back in 2014 . These of course have no official imprimatur at all, but they do represent what one somewhat experienced practitioner, in consultation (he thought) with NPS and ACHP staff, was able to offer. I suggest that they be considered an informed though unofficial representation of good practice with respect to traditional cultural places.

UPDATE 5/26/2015: At the request of NPS, I have removed the Unauthorized Update from