As a special Valentines gift to America, the Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (USACE) proposed new rules changes to what is commonly referred to as the “Waters of the US” law. So I thought this would be a great time to discuss how historic properties are (or are not ) protected in the US, how these proposed rule changes are illustrative of the system, and why it can be so difficult to keep up.
I often say that the National Historic Preservation Act (NHPA) is the most poorly understood legislation in America. It is essentially or only law that provides a mechanism for protection of historic sites. But it is narrow, and can be interpreted differently by different agencies. And it is often modified by other protocols or guidelines established by federal agencies. For instance, the Corps Appendix C, which is not only it’s own blog post but it’s own abyss of hell.
First, a quick refresher on the NHPA. Quick and dirty, it requires that federal agencies consider the affects of their undertakings on historic properties. An undertaking is a broad range of activities- actual federal actions, like a project at a National Park; a permit like one granted by BLM for oil and gas extraction; or even an NSF grant. The NHPA does not apply to personal property, state property, or local municipalities. It applies to federal agencies. A private individual may impacted if they are seeking funds or permits. They are getting access to public property (read OUR property, whether that is money or public lands) so yes, they should have to jump through some hoops.
The NHPA is not prescriptive and it is not regulatory. The NHPA is process-driven and is programmatic. While there are other laws that say if x then y, NHPA says, federal agency, if you are going to impact historic resources you have to consult with the necessary stakeholders and determine a good course of action. This is what we commonly refer to as Section 106 (we’ll talk the ins and outs of the S106 process in another blog post). At the end of the day, despite stakeholders, despite the mythical, infinite powers of SHPO, final decision making at every stage of the process lies with the federal agency. They are the ones who get to decide if something is an undertaking, if it will affect historic resources, and if it will be an adverse effect.
What often gets forgotten before we even get to the nuts and bolts of the S106 process itself is the nature of federal agencies. Our federal government is not a homogeneous monolith of inter-connected and cooperating bureaucrats working for the success of a single ideal. It is not Hydra. The US federal government is a collection of departments and agencies, each with their own missions and their own, usually narrowly defined, role. I think this is where the average citizen gets really frustrated with the federal government- we think that when decisions are made by bureaucrats they should be taking a wide-range of variables into account. The problem is, in reality, agencies usually exist for a specific purpose, and they make decisions with that purpose in mind.
So back to the proposed changes by the EPA and USACE. Currently, Waters of the US is a legal term that is taken from the Clean Water Act, and pretty much includes everything we would all generally recognize as bodies of water. Today, if there is a project, say a bridge construction over a body that is a water of the US, then a suite of compliance and regulatory processes kick in, not the least of which is S106. The EPA and USACE are required to consider the effects of their undertaking on historic resources, which might not only include that 1920s-era National Register listed steel-truss bridge that is about to be removed, but the archaic era open camp site on the terrace near the tributary that was never surveyed, but will be impacted by the project.
The proposed changes would more narrowly define what a “water of the US” is, and define what it is not. It is the not category that is important. While this is a change to the Clean Water Act, as well as affects what projects would require USACE permits and oversight, this has a direct affect on historic resources. Remember, under NHPA a federal agency has the right to determine what is and isn’t an undertaking. If there are entire categories of waters that are excluded from environmental oversight, then they won’t be undertakings and will not undergo S106 review. If that bridge replacement occurs over the a body that is determined not be waters of the US, there is no further mechanism for effects to the bridge and archaeology site to be considered. Very quickly you will see historic bridges or roads or buildings disappear. You won’t see the archaeology sites disappear, they vanish under the bulldozer without us even knowing they exist.
This proposed rule change isn’t unusual, and there are a variety of mechanisms for this to happen- internal policy directions, court decisions that provide increased guidance on interpreting legislation, new laws implemented by Congress, scientific information. In this case the EPA and USACE are responding to the 2017 Executive Order 13778 that directed both agencies to “review and rescind or replace the 2015 Clean Water Rule” the focus of which was to remove regulations that require project proponents not to pollute our waters. All of our laws are intertwined and entangled, and historic preservation, while rarely the focus of direct attacks, is always collateral damage.
This proposed rule change isn’t unusual, and in fact is a more common way for laws to change interpretation and implementation than is commonly thought. There are a variety of mechanisms for this to happen- internal policy directions, court decisions that provide increased guidance on interpreting legislation, new laws implemented by Congress that impact existing laws, new scientific information that informs older legislation. In this case the EPA and USACE are responding to the 2017 Executive Order 13778 that directed both agencies to “review and rescind or replace the 2015 Clean Water Rule” the focus of which was to remove regulations that require project proponents not to pollute our waters. All of our laws are intertwined and entangled, and historic preservation, while rarely the focus of direct attacks, is always collateral damage.
Federal agencies cannot just make willy-nilly changes, no matter how obnoxious the executive making the order is, and they have to take public comments into consideration. As we have seen the last couple of years from the FCC Net Neutrality debacle, they don’t always incorporate public comment into their final decisions, but in times of more normal governance, they actually do. Or did. Either way, it’s worth your time commenting. Public comment periods are typically short, 30-90 days, and finding out about proposed policy changes, much less where to comment, can be very difficult. Usually a good clearing house is the Society for American Archaeology, who has a “Take Action” button that will often list specific legislative threats to historic resources and provide ways to voice your concerns (please note, as of the publishing of this post SAA does not have the EPA & USACE proposed changes listed yet). The comment period for the changes to the Waters of the US rule is through April 15, 2019. You can also always call your representatives.