Before approving projects that entail filling waters or wetlands, the U.S. Army Corps of Engineers must take into account impacts on historic properties and consult with the pertinent state or tribal historic preservation officer (“SHPO” or “THPO”)—a process prone to delays, discord, and dismay. Aiming to streamline the process, the Corps has recently proposed two steps.  First, Corps Headquarters has recommended that the Trump Administration resolve a long-simmering disagreement by issuing a statement clarifying that the Corps may follow the process specified in its regulations rather than a somewhat different process prescribed by the Advisory Council on Historic Preservation in its regulations.   Second, three Corps districts in California have proposed to develop a programmatic agreement with the Advisory Council and California SHPO to reduce permit application review times within the state.  They invite comments by April 13, 2018.

Under the Clean Water Act and Rivers and Harbors Act, the Corps operates a program to regulate discharges of dredged or fill material into “waters of the United States,” which encompasses most waters and wetlands. In deciding whether to permit such discharges as part of constructing projects, e.g., port facilities, utility lines, and residential, commercial, and industrial developments, the Corps considers a wide range of factors to assess whether the projects are in the public interest.  Avoiding or minimizing effects on historic properties often is a critical consideration.

The National Historic Preservation Act (“NHPA”) establishes much of the current framework for preservation of historic properties and cultural resources. It set up the Advisory Council and the National Register of Historic Places and arranged an interactive role between federal agencies and states and tribes.  Most pertinent here, it requires that, before funding or approving an “undertaking” (i.e., a project, activity, or program), federal agencies “take into account” the effect of the undertaking on any historic property and afford the Advisory Council a reasonable opportunity to comment on the matter (commonly dubbed “section 106 review” after the pertinent section of the NHPA).  In its implementing regulations, the Advisory Council spells out a process for federal agencies to consult with it, the SHPO, and others.

In administering its regulatory program, the Corps has long followed its own regulations and guidance on consultation about historic properties, which prescribe a process differing in some respects from that of the Advisory Council. Perhaps most notable, the Corps rule focuses review on impacts in the “permit area,” while the Advisory Council rule speaks of the “area of potential effects,” which is generally regarded to extend beyond the permit area.  Objections by some SHPOs, tribes, and others to the narrowness of the Corps review process and questions about its legality have delayed review of some permit applications.

Unrelated to this ongoing controversy, President Trump issued Executive Order 13783 on March 28, 2017, to promote clean, safe development of energy resources while avoiding unnecessary regulatory burdens.  The order directed federal agencies to review their existing regulations and policies that may burden development of energy resources and, within 180 days, make recommendations to the Office of Management and Budget that could alleviate such burdens.

The Corps responded with a report on September 25, 2017, recommending changes to some of its nationwide permits.  The Corps also took the opportunity to urge the Administration to issue an “official statement” declaring that the Corps regulation and guidance on historic property consultation is an acceptable alternative allowed under the Advisory Council’s regulations and is consistent with those regulations—and thereby “eliminate [the] confusion” that has led to “avoidable conflict, added costs, delays, and litigation.”

The Administration has yet to act on this recommendation.

Independent of this Headquarters’ action, the Sacramento, Los Angeles, and San Francisco districts of the Corps issued a public notice on March 13, 2018, proposing to develop a programmatic agreement as an alternative means of complying with the NHPA within California.  Noting that each year they consult with the SHPO on hundreds of projects they later authorize, the Corps districts say they seek to develop alternative procedures to reduce agency workloads and permit application review times.  They propose four specific items for inclusion in a programmatic agreement:

  1. An exclusion from consultation for any project where a finding “no historic properties affected” has been made and there are no identified cultural resources within or immediately adjacent to the Corps permit area and/or the area of potential effect and the following conditions are met:

(a) Completion of a defined minimum level of effort regarding cultural resource identification;

(b)  Consultation with appropriate interested and consulting parties, including federally-recognized tribes;

(c)  No indirect effects to historic properties located outside the permit area are identified; and

(d)  Internal review of “no historic properties affected” determination by a person meeting specified qualifications and appropriate documentation of such review.

  1. An exclusion from consultation for any project where a finding “no historic properties affected” has been made and there are historic properties within or immediately adjacent to the permit area and/or the area of potential effect, but the historic properties will not be affected and the following are met:

(a) Completion of a defined minimum level of effort regarding cultural resource identification;

(b) Consultation with appropriate interested and consulting parties, including federally-recognized tribes;

(c) Appropriate avoidance measures are included in the project proposal to ensure avoidance of any identified historic properties;

(d) No indirect effects to historic properties located outside the permit area are identified; and

(e) Internal review of “no historic properties affected” determination by a person meeting specified qualifications and appropriate documentation of such review.

  1. An exemption from NHPA review if the nature of a specific activity is unlikely to adversely affect historic properties, even if one were present. A list and description of activities would be defined during development of the programmatic agreement.
  2. In addition, the Corps proposes to include reporting procedures, e.g., an annual report to the Advisory Council and SHPO summarizing all Corps authorizations reviewed under the programmatic agreement.

By this proposal, the districts appear to contemplate standardizing and streamlining agency review of relatively simple or easy cases in an effort to lighten the agencies’ workloads and thereby free them to focus their attention on resolving the harder cases. In at least some other programmatic agreements over the years, the Corps, Advisory Council, and other agencies have also covered review of more problematic cases; it remains to be seen whether the Corps districts may expand the scope of this proposed programmatic agreement to do likewise.

 

David Ivester
Briscoe Ivester & Bazel LLP
155 Sansome Street, 7th Floor
San Francisco, CA 94104
Telephone: (415) 402-2700
Fax: (415) 398-5630

Disclaimer: In our Newsletters and Bulletins, Briscoe Ivester & Bazel LLP intends to present general information to the public and does not intend to provide legal advice pertaining to a particular situation.

 

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