The U.S. Army Corps of Engineers has proposed removing Appendix C from their Regulatory Program’s permitting regulations and “instead follow the NHPA’s implementing regulations, developed and interpreted by the ACHP, relying on the flexibility in those regulations for Federal agency compliance with the steps of review.”
The Corps says that it “would also work with the ACHP to draft and disseminate guidance for the Corps’ Regulatory Program to include illustrative examples regarding how to apply the 36 CFR part 800 regulations to potential permitting scenarios.”
According to the Corps, the proposed rule “is part of the modernize Civil Works initiative and comes after the [Corps] received comments related to issues with Appendix C, specifically those regarding consistency and clarity with the Corps Regulatory Program’s implementation of the NHPA.”
ACRA has long called on the Corps to rescind Appendix C and adopt the Advisory Council on Historic Preservation’s (ACHP) Section 106 regulations under 36 CFR 800 as a better way of meeting its responsibilities under the National Historic Preservation Act. In its comments to the Corps in 2022, ACRA said that rescinding Appendix C and adopting the ACHP regulations “will result in stronger and more meaningful consultation with Tribal governments and descendant communities, better enabling the Corps to fulfill its trust responsibility to Tribal Nations. It also will lessen inconsistencies between how the Corps approaches Section 106 reviews and those of other federal agencies that follow 36 CFR 800, and would improve consistencies among Corps districts on how Appendix C is implemented.”
The Corps is accepting public comments on the proposed rule until April 9, 2024. ACRA’s Government Relations Committee also is reviewing the proposal. If you have feedback for the Committee, please email it to amanda@acra-crm.org no later than April 1.
As a NEPA planner and architectural historian I see the merit in merging the process. But I can also tell you this will drive up the regulatory process and cost for private development that has tripped the threshold because they have a small regulated water/wetland on their property. A full Section 106 evaluation is typically two to three times the level of effort and cost. I do not think the same standards should apply to this type project as compared to a state or federally funded roadway project. After 30 years in this industry I think there are to many regulations! And I am a liberal, vegetarian, electric vehicle driving democrat!