As the clock ticks down to the end of the year, both sides of Pennsylvania Avenue are hard at work advancing major policy changes, including a number that impact CRM.
Rescinding Appendix C. In a major announcement last week, the White House indicated that the U.S. Army Corps of Engineers is starting a rulemaking effort to rescind Appendix C and “instead rely on ACHP’s regulations and joint USACE/ACHP guidance for implementation of Section 106” – a potential big win for ACRA and CRM firms.
Earlier this year, ACRA called on the Corps rescind Appendix C, following the distribution of a member survey about the Corps’ regulatory program, and after the Corps held a special listening session for ACRA firm members in July regarding their deliberations over Appendix C.
In their comments, ACRA said that 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.”
Ensuring Tribal Consultation. The Appendix C news came as part of a series of steps the White House announced last week during its Second Tribal Nations Summit. Those moves include steps to reform hardrock mining laws and policies “to ensure that mining activities are conducted using strong environmental, sustainability, safety, Tribal consultation, and community engagement standards.” In particular, the Departments of Interior and Agriculture announced recommendations on:
- ways to ensure Tribes are engaged earlier during the development of mining proposals on public lands
- providing Tribes a seat at the table in discussions regarding mining proposals; and
- improving consideration and protection of Tribal interests and resources as mining decisions are being made.
The announcements reflect ACRA’s recommendations to Interior’s Interagency Working Group on Mining Regulations, Laws, and Permitting that the government ensure “early and effective consultation with Tribes and descendant communities.”
As ACRA noted, “Although community engagement is critical in any context, it is particularly important with respect to Tribal and descendant communities. The historic neglect of sacred sites or lands that have historic importance to Tribes and descendant communities and the lack of appropriate agency consultation have caused enormous suffering to these communities, especially those of our continent’s first inhabitants. ACRA strongly supports efforts to ensure holistic, comprehensive, and open communication with Tribal and descendant communities that engages them in a meaningful way as part of any reforms to mining regulations and permitting processes.”
Safeguarding Tribal Patrimony. Meanwhile, on Capitol Hill, Congress took the final steps to enact legislation to protect sacred objects. The Safeguard Tribal Objects of Patrimony (STOP) Act, which was endorsed by ACRA, would prohibit the exporting of sacred Native American items and increase penalties for stealing and illegally trafficking Tribal cultural patrimony. The Senate passed the bill unanimously next week, following House passage last year. The next stop: President Biden’s desk, where he is expected to sign it into law.
Funding Historic Preservation. Congressional leaders also are working to finalize a full-year spending bill for federal agencies before the current short-term spending measure expires Dec. 16th. Of most interest to the preservation community is funding for the Historic Preservation Fund, which supports state and Tribal historic preservation offices, among other related programs.
In July, the House approved providing $171 million from the Fund, $2 million below the current year’s level. The Senate Appropriations Committee has proposed $191 million for the Fund, but has yet to approve the bill, much less get it before the full Senate for a vote. Last week, ACRA joined with its allies in the preservation community to urge Congress to provide the higher Senate amount.
Permitting Reform. One item that is looking less likely to move forward is permitting reform. Sen. Joe Manchin (D-WV) has been trying since September to advance his proposal, which would set maximum timelines for permitting reviews, streamline existing environmental permitting processes, and address “excessive litigation delays,” among other things. But continued opposition from conservative Republicans and progressive Democrats mean it is not likely to advance.
That said, the new Republican House majority in the next Congress will probably try to pass legislation that may go further in making changes to NEPA, Sec. 106 and other consultation laws – efforts that ACRA and its members will need to stay on top of as the new year starts.