The U.S. Army Corps of Engineers (Corps) announced that it will rescind long standing regulations governing how the agency complies with the National Historic Preservation Act (NHPA). 89 Fed. Reg. 9079, Feb. 9, 2024 Corps Appendix C Notice 2-9. Going forward, the Corps will adopt the Advisory Council on Historic Preservation’s regulations at 36 C.F.R. Part 800. Public comments are due by April 9, 2024.
The NHPA is a Procedural Statute
The NHPA is purely a procedural law and does not mandate any specific result. Congress passed the NHPA in 1966 to encourage public and private historic preservation activities. Section 106 of the NHPA requires that, prior to any federal undertaking, the federal agency with jurisdiction must consider the effect of the federal action on historic resources and provide the Advisory Council on Historic Preservation (ACHP) with an opportunity to comment. The Section 106 review process has been used to delay or oppose issuance of federal permits for development projects.
The ACHP’s Role is Advisory
The Act also established the ACHP, an independent agency whose mission is to provide the President and Congress with advice on historic preservation. The NHPA is clear that the ACHP’s role is advisory only and limits its duties to advising, coordinating, reviewing and recommending improvements in effectiveness, coordination, and consistency of agency programs with the NHPA. Congress did not authorize nor intend for the ACHP to have any authority over federal agency actions.
Agency Regulations are Specifically Tailored
Agencies demonstrate compliance with Section 106 of the NHPA through regulations promulgated by the ACHP at 36 C.F.R. Part 800, or regulations promulgated by individual agencies. The Corps regulations, promulgated as Appendix C, are specifically tailored to the agency’s permitting regulations at 33 C.F.R. Part 325. The ACHP’s regulations require that the agency’s regulations are approved by the Council, however, there is nothing in the Act that requires the ACHP to approve agency regulations. Such an approval requirement exceeds any grant of authority from Congress. Instead, it is based on an unenforceable 1978 Presidential Memorandum that required Federal agency NHPA procedures to be reviewed by the ACHP, and if those procedures were consistent with the ACHP’s regulation, to also be approved within 60 days by the Chairman of the ACHP. The ACHP has suggested the Corps’ Appendix C regulations are not legitimate for their lack of ACHP approval. However, most courts have upheld the use of Appendix C for NHPA compliance.
Basis for Biden Administration Proposal to Change Course is Unclear
The Corps has historically defended the legitimacy of Appendix C, stating that: (1) Appendix C reflects the limits of Corps jurisdiction over activities occurring in regulated waters; (2) ACHP regulations require a larger scope of review, often to include associated uplands, outside the Corps jurisdiction and control and to include parts of private projects where there is little federal involvement; and, (3) Corps Appendix C is not a counterpart regulation and did not require ACHP approval. Without providing any factual basis, the Biden Administration’s proposal suggests the Corps has reversed course on all three important points.
Commenters should ask the Corps to explain the need for the proposal. In addition, implications of abandoning Appendix C on the Corps’ regulatory program should be analyzed.
