LAST MINUTE PLEA FOR HELP!
As ACRA's chief lobbyist, Loretta Neumann at CEHP, posted earlier we need to
be concerned about a recent announcement of the Corps of Engineers
regarding the nationwide permit program (Federal Register of June 17, 1996
page 30780 et. seq.). The dealine for comments will have passed for many of
you, but I am sending out this last minute request for help in hopes that at
least some of you turn on your computers over the holiday weekend. Comments
are due September 3 and should go to:
Office of the Chief of Engineers
Attn.: CECW-OR
20 Massachusetts Ave NW.
Washington DC 20314-1000
The Army Corps of Engineers (Corps) is in the process of evaluating its
program for issuing nationwide general permits (NWPs) authorized under
Section 404 of the Clean Water Act. Under that Act, the Corps must decide
whether to modify or reissue the full set of NWPs. These permits are meant
to avoid unnecessary public and federal agency review of activities that take
place in, but have very small impacts on, wetlands, such as building a boat
ramp, installing navigation buoys, or putting up a telephone pole. The Corps
now proposes to reissue all 37 of the existing NWPs, some with modifications
and expansion, and to issue four entirely new nationwides. THIS PROGRAM
AFFECTS A VARIETY OF ARCHAEOLOGICAL AND HISTORIC PRESERVATION CONCERNS, AS
WELL AS ENVIRONMENTAL.
The Advisory Council on Historic Preservation (ACHP), NCSHPO and National
Trust for Historic Preservation offered comments on the original permit
program in 1991, noting how the Corps' process was, in effect, not in
compliance with Section 106 of the National Historic Preservation Act.
Their advice was apparently ignored. Last year the ACHP provided comments on
an extension of the program that would cover single family structures. The
Corps never responded. There are, in fact, ways that the process could make
sure that historical properties and archeological sites are not advertently
or inadvertently trashed by permittees. For example, the ACHP has a
programmatic agreement with the Norfolk office of the Corps to handle the
problemmatic ones. But the Corps' wetland staff has apparently chosen to
ignore them.
Projects with significant impacts are often allowed to proceed by combining
several nationwides ("stacking" them) for a single project.
For instance, a housing development may use one nationwide for houses;
another each time a road is crossed; and a third to put in water, sewer, and
power lines. The impacts add up quickly. If the entire project can be fit
under various nationwides, it can avoid public notice or full environmental
review.
The Corps wants to take the nationwides completely out of the Code of
Federal Regulations (CFR), the only place they can currently all be
found printed together. Instead, the Corps wants to issue the nationwides
one by one in the Federal Register, leaving it up to interested citizens to
scan the Register everyday for new nationwides to keep a running collection.
As noted earlier by Loretta and others, the Corps nationwide reissuance
proposal is likely to cause special problems for historic review: the Corps
is proposing a change in how it processes applications that is likely to put
state historic preservation offices at direct odds with the Corps'
overwhelming focus on keeping in permit processing times down, with bad
results for both. Also, it doesn't deal at all with the potential for
substantial loss of significant portions of the archeological record to
activities that are not required to provide notice to the Corps.
The specific concern for the SHPOs arises out of a proposed change in
processing of applications to use nationwide permits. Typically now, an
applicant will go to the Corps and find that a project can be done under a
Nationwide. The applicant then goes to the SHPO, who has up to 30 days to
review the project, and then returns to the Corps with a complete
notification that they intend to use this nationwide. The Corps grants
authorizations under the nationwides in an average of 16 days.
The proposed change is to have all applicants go directly to the Corps, who
would then send out the notification to the SHPO. It may make sense to have
the Corps as the point agency for applicants to deal with (although some of
the SHPO's we've spoken with would rather deal with applicants directly).
However, folding the SHPO review into the Corps review could cause a silly
but serious problem. Right now, the Corps prides itself on approving
nationwide permit applications in an average of 16 days, counting from when a
complete application is received (i.e., not counting the SHPO review
process). The SHPOs have uniformly told us they take 30 days for their
review. Since the Corps is unlikely to let its 16 figure slide up to 46
days, there is a real danger the SHPOs will get short shrift in the NWP
process.
Below is a copy of the letter mailed by ACRA. As you can see, your letter
need not go into a great deal of detail, but it is important that the
historic preservation community's voice be heard. Please feel free to use
the following letter as a model, tweak it as appropriate and get it off to
the Corps right away. There is still time to fax your comments and meet the
September 3 dealine. Thanks in advance for your help!
Chuck Niquette
September 3, 1996
Office of the Chief of Engineers
ATTN.: CECW-OR
20 Massachusetts Ave. NW
Washington, D.C. 20314-1000
Dear Chief of Engineers:
I am writing on behalf of the American Cultural Resources Association (ACRA)
to express our concerns about the proposed reissuance and modifications of
nationwide permits under Section 404 of the Clean Water Act and Section 10 of
the Rivers and Harbors Act, published in the Federal Register for public
comment June 17, 1996. ACRA is an organization composed of businesses in the
fields of cultural resources, including archaeology, architecture, history
and landscape architecture. ACRA promotes the professional, ethical, and
business practices of the cultural resources industry, including all of its
affiliated disciplines. Our members work both for government agencies and
for private industries.
We understand that the Corps' nationwide permits are meant to avoid
unnecessary public and federal agency review of activities that take place
in, but have very small impacts on, wetlands, such as building a boat ramp,
installing navigation buoys, or putting up a telephone pole. We further
understand that the Corps now proposes to reissue all 37 of the existing
nationwide permits, some with modifications and expansion, and to issue four
new ones.
We believe that this program has the potential to affect a variety of
cultural resources that may be found in relationship to wetlands. We are
aware that the Advisory Council on Historic Preservation commented on the
permit program in 1991, noting how the Corps' process was, in effect, not in
compliance with Section 106 of the National Historic Preservation Act. Last
year the Council provided similar comments on an extension of the program
that would cover single family structures. We understand that the Corps has
not responded to the Council.
Section 106 of the National Historic Preservation Act requires a federal
agency to take into account the effect that an undertaking may have on a
property that is listed on or eligible for the National Register of Historic
Places, maintained by the Secretary of the Interior. Section 106 further
requires that the agency provide the Advisory Council on Historic
Preservation with a reasonable opportunity to comment on those undertakings.
The 1992 amendments to the Act direct Federal agencies to have procedures to
comply with Section 106 "consistent with regulations issued by the Council."
The Act also requires agencies to have a process that involves state historic
preservation officers, local governments, Indian tries, Native Hawaiian
organizations and the interested public to identify and evaluate historic
properties and develop and implement agreements "regarding the means by which
adverse effects on such properties will be considered."
The Advisory Council on Historic Preservation provides a forum to assure
that the public interest in historic preservation is balanced with other
public needs. We strongly urge you to take the steps that are necessary to
consult with the Council and to assure that this program is in compliance
with the National Historic Preservation Act and that resources significant to
our nation's heritage are not advertently or inadvertently harmed by the
Corps' nationwide permit program.
Sincerely,
Charles M. Niquette
President
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