tag:blogger.com,1999:blog-8788575.post5000217886995746488..comments2024-01-11T22:45:53.276-08:00Comments on Tom King's CRM Plus: Bombing Boise: Confusing Government’s Authority to Regulate with its Responsibility to Consider Environmental ImpactsThomas F Kinghttp://www.blogger.com/profile/00037819472341496713noreply@blogger.comBlogger10125tag:blogger.com,1999:blog-8788575.post-45846098623493506902016-08-13T17:21:04.633-07:002016-08-13T17:21:04.633-07:00Seems to me that if the federal action affects whe...Seems to me that if the federal action affects where and how the project will be carried out -- where the wind generators will be, for instance -- then it has the potential to affect historic properties, and requires review. If it doesn't, then it doesn't. Which I realize seems simpleminded, but I think that's where you start.Thomas F Kinghttps://www.blogger.com/profile/00037819472341496713noreply@blogger.comtag:blogger.com,1999:blog-8788575.post-72700604160259190492016-06-29T13:45:10.806-07:002016-06-29T13:45:10.806-07:00Thank you. In reply to my "water's edge&...Thank you. In reply to my "water's edge" question - (the Corps jurisdiction stops at waters edge but the permitted activities are an undertaking with an A.P.E. that goes beyond the waters edge) - what would you say about a federal permit for a wind farm, wherein the permit authorizes an acceptable amount of bird mortality ? Or a new golf course that allows an acceptable loss of bird habitat? In both permits, the permittee agrees to certain modifications - maybe they will seasonally restrict the use of their project so as to reduce the amount of bird mortality, or change the construction design to minimize the loss of bird habitat, or replace it with habitat elsewhere, or maybe just finance other programs that help the birds. The federal agency (USFWS) claims that the permit is only authorizing the modified effects on the numbers of birds, over which it has protective jurisdiction. The permit is not authorizing the construction activities themselves, because the USFWS has no jurisdiction over the land. The USFWS jurisdiction is limited to the federally protected birds, and thus, the permit is limited to the acceptable loss of birds, and thus, USFWS sees no need to comply with NHPA. Do you buy the agency's self-declared exemption from NHPA ? And, no, this question is not at all frivolous or "for the birds" - companies have paid court ordered multi-million dollar fines for not obtaining one of these federal bird permits, when construction projects resulted in bird mortalities. And the question is not limited to avian species either - certain terrestrial animals are also covered by the same type of federal permit. So, what say you ? Is the USFWS right, or wrong, regarding its self-declared exemption from NHPA ? If the Corps permit is a federal action that results in an undertaking that goes beyond the waters edge jurisdiction, should the same be expected of a USFWS bird permit? (they're called "take" permits, a misleading term which confuses people, because "take" can mean anything that harasses or impedes birds and other species, thereby making it harder for them to subsist and reproduce - "take" means more than just direct and immediate mortalities, which is how the term sounds). Elsewhere, you have also written about animals as contributing components of traditional cultural properties. This is not that question. This question is about undertakings with A.P.E.s, on the ground, anywhere.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8788575.post-29142459957389196592016-06-03T09:56:07.983-07:002016-06-03T09:56:07.983-07:00Lance, of course things stay as they are until the...Lance, of course things stay as they are until the courts say otherwise (or the regs get changed), but courts do (if properly assisted by good attorneys) pay attention to the relevant literature, so I keep trying to crank it out.Thomas F Kinghttps://www.blogger.com/profile/00037819472341496713noreply@blogger.comtag:blogger.com,1999:blog-8788575.post-45680906210816645722016-06-03T09:53:55.502-07:002016-06-03T09:53:55.502-07:00Anonymous, let me try to explain -- though that...Anonymous, let me try to explain -- though that's rather what this whole piece tried to do. NHPA Sec. 106 says that an agency must take into account the effects of its actions. If the ACOE, with acknowledged jurisdiction only over "waters of the U.S." in Florida, permits Donald to put in his launch pad and level Boise, that leveling is an effect of the Corps' permit action; hence it has to be considered under Section 106 (and NEPA). Does that do it for you?<br /><br />Corps-folk I know and respect argue that "you can't use 404 to regulate the universe," and I think that's true. It's damned unfortunate that we don't have a general-applicability EIA requirement based on a less flimsy footing than the Commerce Clause (the constitutional basis for the Corps' regulation of "waters of the U.S."). But we don't, so we work with what we have.Thomas F Kinghttps://www.blogger.com/profile/00037819472341496713noreply@blogger.comtag:blogger.com,1999:blog-8788575.post-67392195979454094872016-05-23T11:16:17.288-07:002016-05-23T11:16:17.288-07:00Let's take one step back, because many readers...Let's take one step back, because many readers might not know, and won't understand the rest of your argument. If the ACOE permit only regulates the discharge of fill into "the waters of the United States", and ACOE has no jurisdiction over private lands or other non-federal lands beyond the waters edge, how and why is NHPA involved all ? Obviously, the NHPA is not being limited to submerged historic properties and objects in federal waters, so there must be a wider purview to NHPA in connection with ACOE permits. Can you explain for those of us who don't know ? Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8788575.post-14505342928494514112016-05-22T14:51:25.702-07:002016-05-22T14:51:25.702-07:00When I was with the National Park Service, the Cor...When I was with the National Park Service, the Corps of Engineers issued a new slogan: "The Corps Cares!" based on my experience I took that and altered it to read, "The Corpse Cares!".marcaeoloGhttps://www.blogger.com/profile/06729848226232414535noreply@blogger.comtag:blogger.com,1999:blog-8788575.post-39220631937141757852016-05-22T08:59:04.116-07:002016-05-22T08:59:04.116-07:00Well, "national security" is a big club,...Well, "national security" is a big club, but it doesn't necessarily trump the need to address environmental impacts. When "debating" such things with military folks, I try to use the intelligence analogy; it's dumb to attack Hill 75 without good intel about what may be dug in there; in the same way, it's dumb to decide where to berth your subs without good intel on what the relative impacts of this versus that berthing decision may be. Which is all NEPA requires: get good intel before you make a decision. Whether that argument would appeal to a particular court, of course, is always a crap shoot.Thomas F Kinghttps://www.blogger.com/profile/00037819472341496713noreply@blogger.comtag:blogger.com,1999:blog-8788575.post-11932565218155205562016-05-22T08:51:03.781-07:002016-05-22T08:51:03.781-07:00Thanks again, Tom!Thanks again, Tom!Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8788575.post-42088285411334351512016-05-22T08:34:41.031-07:002016-05-22T08:34:41.031-07:00Seems like it would be a lot easier to squash a pe...Seems like it would be a lot easier to squash a permit with a civilian proponent, with ven local authorities. Can you debate the APE of a governmental institution that has "National Security" in its mission. Case in point was the NEPA review for improvements to the dock and surrounds at the US Navys Bangor Trident Nuclear Base. The indirect cultural impacts from a trident submarine based in Washington State are potential planetary, extinction level effects. With troubles in the middle east making foreign imports dicey, cant national security be invoked, and all regs are out? <br />Genavie Thomashttps://www.blogger.com/profile/14895096642633971252noreply@blogger.comtag:blogger.com,1999:blog-8788575.post-34705130931853160472016-05-22T06:35:37.814-07:002016-05-22T06:35:37.814-07:00That's true, Tom, and you know I feel the same...That's true, Tom, and you know I feel the same, but until such time as someone SUCCESSFULLY challenges the COE's position in court, they will keep their position, especially since it was IN court that their position was validated. There is a different between what is "right" (ethical, etc.) and what is legal, despite what people think. The court system is a long conversation, and case law precedent determines things more than anything else. That's why people have to carefully consider what cases they bring to court, because a decision against you sets a precedent that generally makes things more and more difficult.Lance M. Fosterhttps://www.blogger.com/profile/17404310713482611952noreply@blogger.com