• 07/27/2020 3:00 PM | ACRAsphere Blog Team

    On July 15, the Council on Environmental Quality (CEQ) unveiled its final revisions to regulations that will govern how, going forward, CEQ will implement the National Environmental Policy Act (NEPA). Each agency will now have to revise its own regulations for implementing NEPA so their agency-specific regulations are consistent with the new CEQ regulations. ACRA and its partners at the Coalition for American Heritage has followed the development of these changes closely, and we expressed our concerns about the new regulations repeatedly throughout the rule-making process. Here, we assess how this final rule could impact historic and cultural resources, and we provide opportunities for action.

    Most important, these new regulations will limit consideration of effects on historic properties in the NEPA review process. Classes of federal actions are now exempt from NEPA review and the types of project effects that are examined during the NEPA review process are now restricted. By removing classes of projects and types of impacts from NEPA review, the new regulations will restrict and reduce the consideration of historic properties in project decision making overall.

    NEPA’s review process has long provided the public, including local stakeholders and Indian Tribes, with an opportunity to voice concerns about federal actions and projects. The opportunity for the public to review and comment on these actions and projects is the underpinning of the NEPA process. These concerns could be related to contamination of water sources, impacts to minority and underserved communities, destruction of cultural resources, or other environmental and social impacts. Under this new rule, CEQ significantly expedites the NEPA review process, bypassing or reducing time to implement many of the steps that allowed agencies to listen to, address, and remedy public objections to a project’s impacts.

    The following are our top five concerns about CEQ’s new rule for implementing NEPA.

    1. Fewer actions will be subject to NEPA review, because the new rule changes the definition of what activities warrant regulatory scrutiny.

      The new rule eliminates classes of federal actions from NEPA review because they do not meet the new “threshold” requirements to undergo a NEPA review. First, CEQ now directs agencies to exclude projects with “minimal federal funding” or projects “where the agency does not exercise sufficient control” from review. (See §1508.1(q)). Because they do not define “minimal” or “control,” this revision will give agencies with wide latitude to define “minimal” and “control” without any public scrutiny, which will likely lead to litigation.

      Second, agencies can also decide to exclude projects from NEPA review if they determine another process or statute will cover any concerns raised by stakeholders, or if they decide NEPA would conflict with another law that governs the project, again without any public input or scrutiny. (See § 1501.1). While this change may appear to enhance efficiency, in practice it gives agencies unilateral discretion over which projects merit review under NEPA. These changes clearly limit the projects subject to NEPA assessment and—particularly relevant to historic and cultural resources—those that would incorporate opportunities for the public to raise concerns about impacts on historic properties, as well as environmental and community impacts.

    2. The new rule makes it more difficult for the public to raise concerns about a project’s effects on their community.

      On top of the additional barriers to projects entering the NEPA review process, the new rule restricts the public’s ability to add its voice to or engage in the review process itself, once it is underway. This restriction emerges from a number of changes, including imposing arbitrary timelines that would significantly reduce comment periods. (See § 1501.10(b)(1-2)). Often, meaningful consultation with stakeholders and Tribes takes time, and time limits mean that agencies will be tempted to skip or shortchange steps in the process. In addition, the new rule limits the public’s ability to comment on the purpose and need of a project, restricting the type of input to a project’s design plans or outcomes. (See § 1503.1).

      Finally, if public constituents miss these narrow windows to comment on the project, the new rule prohibits them from pursuing litigation in court at a later date. Furthermore, even those who are eligible to bring a claim after participating in the comment process may have to put up money to access to the court system, as the new rule encourages the use of bonds in any ensuing litigation. (See § 1500.3). Again, these additional burdens could entirely exclude some communities from raising objections or encouraging alternatives for projects that might minimize impacts to historic properties. They will also exacerbate the risks that many marginalized communities face due to environmental hazards, obstructing their ability to bring legitimate claims before the court and pursue environmental justice.

    3. The new rule limits the types of effects agencies can consider.

      Even if agencies determine a project qualifies for NEPA review, the new rule significantly limits the analysis of a project’s effects on the environment. By revising the definition of effects, CEQ effectively excludes any impacts from consideration that do not occur as a direct result of the project or in its immediate vicinity. (See §1508.1 (g)).

      Under the new rule, effects are not considered significant if they are remote in time, geographically remote, or the product of a lengthy causal chain. These types of effects can result in adverse impacts to historic properties. For example, a federal action whose purpose and need includes regional economic development may result in impacts to historic properties in the locations of the resulting development. In addition, under the new rule, a “but for” causal relationship is insufficient to make a federal agency responsible for a particular effect under NEPA. As a result, the full range of impacts resulting from of a private development which cannot proceed “but for” receiving a federal permit or approval (that is, the project would not take place without the federal approval or permit) will not be examined under the NEPA review process. The NEPA review will only consider the narrow location of the federal approval or permit, and not the entire private project, which may have adverse impacts on historic properties.

    4. When considering alternative plans to mitigate a project’s risks to the environment or historic properties, agencies can only assess a “reasonable number.”

      The new rule also places an ill-defined and arbitrary limit on the number of alternatives that agencies can analyze. (See § 1502.14). Consideration of alternatives is important for identifying options that reduce impacts to cultural resources. By limiting agencies to a “reasonable number” of alternatives, CEQ unnecessarily restricts agencies to an arbitrary set of possible solutions.

      This new rule also limits the public’s ability to comment on these alternatives, curtailing what should be a robust review that takes into consideration stakeholder concerns. (See § 1500.3 (b)). Placing such a restriction will limit the agencies in their effort to avoid or minimize effects to historic and cultural resources.

    5. Ultimately, the new rule introduces confusing new terms that will invite litigation and delay projects, the opposite of what the Administration says it intends to do.

      Because of the ambiguity in certain terms contained in the new rule, the arbitrary discretion given to agencies, and an accelerated timeline for NEPA review that will create inevitable mistakes and omissions, these regulations are bound to result in extensive litigation. More litigation creates further project delays. NEPA now has fifty years’ worth of case law interpreting the statute and its regulations. These proposed regulations toss that case law—and all of the existing CEQ guidance—away.

      Indeed, these regulatory changes will not only impact communities and the natural and cultural resources they value, but they will impact and impair industry. Industry groups will now lose the predictability that was previously afforded projects from clear regulatory processes, and the ability to rely on the public input process to surface and resolve concerns about a project early in a project’s development.

    Recommended Response to Projects Under New Regulations

    There are, of course, other changes to the regulations that impact the preservation of historic properties. Cumulatively, each of the changes we have listed here will severely limit the public’s ability to comment on projects and alert agencies and private developers to impacts on historic and cultural resources, the environment, and communities. The next question is where we can go from here to continue to protect historic properties.

    The new rule begins to apply to all projects undergoing NEPA review on September 14, 2020, but agencies can now utilize the new rule voluntarily. This distinction is important, because communities can continue to engage with agencies using the old rule, reminding agencies that they do not have to apply the new rule until September 14 and that they will also likely come under challenge through litigation. The old rule remains the more reliable, legally sound procedure, tried and tested under 50 years of case law.

    In short, until September 14, communities can strategically pressure the agencies to continue applying the old rule to both new projects, as well as projects where NEPA review has already begun. Communities should notify litigators when agencies attempt to apply the new rule prematurely. With regard to projects currently in litigation, agencies do not have grounds to say the implementation of the new rule leaves no legal remedy for these projects. The violations being litigated occurred before the new rule applied, and the agencies violated the applicable law at the time: the previous CEQ rule, which has 50 years of case law on which to stand.

    Impacted communities should also become proactive about fact finding. Stakeholders can inform themselves about new project developments through multiple avenues, including accessing public records, FOIA requests, and initiating outreach to agencies. Once again, we expect litigation challenging these new regulations to ensue quickly.

    Take Action to Oppose NEPA Regulatory Rollbacks

    We encourage members to take action on this critical issue by contacting their members of Congress. Use our helpful tips in e-mailing your Congressional representatives - with these steps, you can make a real difference for your industry in just a few minutes time!

    • Click here to identify who represents you in Congress.
    • Visit your member’s website and look for a “Contact Me” tab that enables you to send an email directly to his/her office.
      • If you prefer to call, the Capitol switchboard is 202-224-3121 and you can ask them to connect you to your Member’s office.
    • Share your home address so that the Member of Congress can confirm that you are a constituent.
    • In your message, provide a short explanation of how the NEPA regulatory rollback will likely impact your work and why you care about the issue. (It’s okay to use the same message in contacting your representative and both of your senators.)
    • Ask your Representative to cosponsor HConRes 89, legislation that asks the Trump Administration to reverse ongoing administrative actions to weaken NEPA and its protections for American communities.

    Stay tuned to all ACRA properties for additional developments on this and other issues facing the CRM industry. You can subscribe to the ACRAsphere for the most up to date information and follow up on both Facebook and LinkedIn.


  • 07/27/2020 1:38 PM | ACRAsphere Blog Team

    The Coalition for American Heritage, of which ACRA is a founding member, has issued the following statement regarding surveillance of protesters at historic monuments:

    The Coalition for American Heritage opposes the Trump Administration’s dangerous decision to implement the Executive Order on Protecting Monuments, Memorials and Statues by conducting surveillance on Americans who are protesting to remove some of these historic period monuments, and by characterizing potential damage to monuments as a “significant threat to homeland security.”

    Our organizations are committed to preserving and showcasing America’s complex and sometimes painful history. Government surveillance of mostly peaceful protesters undermines an essential element of historic preservation—constructive dialogue about our country’s complex history. In our work, this dialogue occurs, and is shared with the public, at our country’s historic sites. In seeking to remove certain monuments, protesters challenge us to question which historic figures we choose to honor, and whose stories merit inclusion, in the public square.

    We believe that the protests occurring across America are part of an important re-examination of our collective history. We welcome this national conversation about America’s past, including difficult topics such as segregation, enslavement, genocide, and disenfranchisement. It is our sincere hope that an open dialogue about America’s multifaceted past will guide us in creating a more just, equitable, and inclusive future for all.

    We strongly oppose the President’s unwarranted characterization of civil rights protests focusing on heritage sites as a national security threat and his use of Department of Homeland Security personnel to collect personal information on protesters. We ask him to immediately revoke this new and dangerous policy.

  • 07/24/2020 4:02 PM | ACRAsphere Blog Team

    The House of Representatives has joined the Senate in passing the Great American Outdoors Act.

    The bill invests $1.9 billion annually for the next five years in deferred maintenance for lands managed by the National Park Service, USDA Forest Service, U.S. Fish & Wildlife Service, Bureau of Land Management and Bureau of Indian Education. Performing this work will also provide jobs in nearly every state. The bill would also provide full and permanent funding of $900 million each year for LWCF. These monies come from offshore oil and gas revenues.

    From the Washington Post:

    Both parties are aiming to use the bill's passage to burnish their reputations and bolster their political fortunes.

    Speaking in front of the Capitol on Thursday, House Speaker Nancy Pelosi (D-Calif.) praised freshmen Democrats for leading the effort to pass the bill.

    “The bill honors our responsibility to be good stewards of our natural heritage,” she said while surrounded by about a half-dozen Democratic lawmakers.

    In particular she praised Rep. Joe Cunningham (D), a former ocean engineer who is in a tough reelection race in a coastal South Carolina district that President Trump won by 13 points. He was the lead House sponsor of the bill.

    “He brought his scientific know-how, his devotion to preserving the planet, to the Congress and made this legislation possible,” Pelosi said.

    On the other side of the country, Ivanka Trump, the president’s daughter and senior adviser, toured Rocky Mountain National Park in Colorado to trumpet the bill and visit some of the infrastructure in need of repair with Interior Secretary David Bernhardt, a Colorado native.

    The bill is expected to be signed by President Trump. Read the full Washington Post article here.


  • 07/23/2020 2:55 PM | ACRAsphere Blog Team

    The Advisory Council for Historic Preservation (ACHP) has extended the period in which emergency procedures for Section 106 can be used until September 30, 2020. This authorization applies to all federal agencies. From the ACHP:

    On April 3, the ACHP authorized an extension to May 29 for all federal agencies to use the emergency procedures to implement COVID-19-related emergency undertakings. Before that initial extension expired, it was further extended to July 31, 2020. These procedures expedite the Section 106 review process for any federal agency that proposes to carry out, license, approve, or fund undertakings that respond to a disaster or emergency declared by the President, a tribal government, or the governor of a state, or which respond to other immediate threats to life or property. Considering the likelihood such declarations will remain in place into the foreseeable near future, the ACHP yesterday extended the use of these provisions until September 30 to allow for the ongoing needs of federal agency response.

    Please note the section 800.12 emergency procedures can only be used for undertakings that will be implemented in response to a disaster or emergency or that respond to other immediate threats to life or property. Examples of such undertakings for COVID-19 response include but are not limited to new construction or adaptation of existing buildings for testing, treatment, or quarantining; creation of COVID-19 temporary facilities; and development of infrastructure specifically built to serve COVID-19 facilities and services. The expedited procedures in section 800.12 do not apply to non-emergency response or recovery undertakings. It is also important to note that the tolling (pausing) of Section 106 reviews by a State or Tribal Historic Preservation Officer, Indian tribe, or Native Hawaiian organization does not apply to consultation under these emergency procedures.


  • 07/23/2020 12:00 PM | ACRAsphere Blog Team


    Your Congress in Action is a series that highlights the Capitol Hill news that affects CRM firms the most. This information is sourced from the Coalition for American Heritage, news articles, and more. Be sure to subscribe to the ACRAsphere to ensure you don't miss an update.

    • President Trump announced the NEPA regulatory rollback on Wednesday, July 15. The final rule closely resembles the proposed rule, and you can see ACRA's initial statement on the finalized regulations here. The Coalition for American Heritage, of which ACRA is a founding member, is working on a more robust analysis of the new rule and putting together a call to action for members to express their concerns to Congress. If the regulations are not challenged in court, they will go into effect in mid-September after 60 days following publication. Please be sure to let us know if you see any impacts of this rule on your projects.
      • Organizations are exploring different ways to challenge the new regulations: 
        • Congress could reverse the NEPA rule through the Congressional Review Act (CRA), which is an oversight tool that Congress can use to overturn rules issued by federal agencies. The CRA requires agencies to report on their rulemaking activities to Congress and provides Congress with a special set of procedures under which to consider legislation to overturn those rules. The House and Senate Parliamentarians are the sole definitive arbiters of the CRA parliamentary mechanism, including time periods involved. This is a possibility only if Democrats sweep the White House and take control of both chambers of Congress. 
        • Congress can also modify the regulations through Congressional action. 
        • Other avenues are through litigation that stipulates the regulations violate the intent and purpose of NEPA. Also, since the published version of the regulations did not directly address comments on the draft, the litigation could potentially focus on violations of the Administrative Procedures Act.
      • Joe Biden used the announcement of the NEPA rollback to issue his own environmental plan and sharpen the contrast between the two candidates.
    • Both the House and Senate are in session this week. It is expected to be a busy week of votes, but the timing of a funeral for Rep. John Lewis could disrupt the schedule. The House plans to vote on the Great American Outdoors Act. However, several Republicans are pushing back because the revenues from offshore oil leases are lower than in past years; these revenues would be used to offset costs of the Act. Beginning on Thursday, the House will take up a minibus that includes the FY 2021 Interior-Environment, State-Foreign Operations, Agriculture and Military- Construction-Veterans bill. This minibus will be separate from bills addressing the virus and unemployment. UPDATE: The House passed the Great American Outdoors Act on Thursday afternoon. The bill will make permanent $900 million per year for the Land and Water Conservation Fund and direct up to $9.5 billion over five years to the National Parks and Public Lands Legacy Fund to help address huge backlogs in maintenance needs.

    • The Democrats on the Appropriations Committee have used their bills as vehicles to remove Confederate monuments and rename military bases. The Secretary of Defense issued a new policy that effectively bans the Confederate flag from all military bases.

    • The recent Supreme Court ruling that nearly half of eastern Oklahoma is tribal land will have major impacts on pipeline construction. Oklahoma is the nation’s 4th-largest oil producing state. About ¼ of the state’s recent oil and gas wells and roughly 60% of its refinery capacity now lie within the territory of 5 tribes, the Cherokee, Chickasaw, Choctaw, Creek, and Seminole. Additionally, pipelines leading to Cushing, OK, a terminal for the Keystone XL, go across the redrawn reservation borders. This has likely been the most far-reaching Court decision affecting tribes since the Cobell decision in 1999 addressing government mismanagement of individual Indian money accounts. If you are interested in learning more about these issues and the Supreme Court case, see the podcast This Land. The ruling will force the state and the tribes to negotiate several issues, including who will be responsible for environmental permitting.

    • President Trump appears to be using his Executive Order on monuments to authorize intelligence surveillance of protesters. For information on a Department of Homeland Security memo authorizing intelligence collection, click here.

    • Rep. Kevin McCarthy (R-CA), House minority leader, rolled out a bill titled the "Protect America’s Statues Act of 2020" with Reps. Jim Jordan (R-OH) and Sam Graves (R-MO). The bill would prevent state and local governments that do not protect monuments from receiving federal grants.

  • 07/20/2020 4:40 PM | ACRAsphere Blog Team

    If you missed last week's webinar on resolving emerging technology for heritage management, it is now available on demand for you to watch on your own schedule!

    When the Section 106 process results in adverse effects to historic properties, federal agencies often use mitigation measures to preserve data for the public benefit. As new means of information visualization are embraced by the general public, new opportunities to comply with the goals set out by Section 106 can be explored to ensure that the historic data being preserved under the mitigation is not only accessible to a wider audience but conveys the information in an engaging and innovative way.

    In this presentation, our expert presenters provide an overview of emerging technologies such as augmented reality (AR), virtual reality (VR), digital reconstructions, interactive interfaces and downloadable apps. Participants also learn about existing and emerging visualization platforms, along with practical examples, guidelines for adopting solutions that maximize longevity of the digital assets, and best practices for recruiting service providers, organizing RFPs and RFQs.

    As with the live session, this webinar is available to ACRA members at a discounted price. Members can get the discount code to access the presentation for free here.

    Watch Emerging Technology for Heritage
    Management & Section 106 Compliance Now


  • 07/17/2020 1:16 PM | ACRAsphere Blog Team

    This post was authored by Richard Grubb, Vice President of Richard Grubb & Associates.

    We at Richard Grubb and Associates are dedicated to helping clients understand the value of CRM and we take every opportunity to do so. In the regulatory world in which we work, it’s often difficult for clients, particularly engineers and developers, to think beyond how much a study is going to cost and how long it will take to complete.

    This article I wrote in the New Jersey Builders Association Newsletter Dimensions suggests ways for clients to determine what cultural resource issues to expect later on during the permitting process. By being forewarned it will allow for the possibility of project redesign or slight adjustments to plans to minimize impacts to cultural resources before the permitting process gets underway. Read the full article below (you can also view a PDF version of the article here), and leave your thoughts in the comments below!


  • 07/16/2020 10:43 AM | ACRAsphere Blog Team

    The Trump Administration has released the final version of its new regulations implementing the National Environmental Policy Act (NEPA).

    ACRA is concerned about many of the changes to NEPA implementation, including:

    1. Fewer actions will be subject to NEPA review;
    2. The ability of the public to raise concerns about effects is reduced;
    3. The types of effects to be considered by the agencies are limited;
    4. Arbitrary timelines and page limits may reduce consideration of cultural resource impacts; and
    5. The regulations introduce confusing new terms that will invite litigation and delay projects, the opposite of what the Administration says it intends with these new rules.

    Given the decades of precedent and case history surrounding NEPA, America’s bedrock environmental law, ACRA maintains that any changes should be made with care, consideration, and robust stakeholder involvement. Instead, the Trump Administration rushed through the comment period during a global pandemic and failed to include meaningful government-to-government consultation with tribes.

    At each step in the process, ACRA and its partners at the Coalition for American Heritage raised concerns about the rule’s anticipated effects on consideration of historic resources. ACRA members submitted letters to the Council on Environmental Quality (CEQ) using their expertise to outlinehow the proposed rule could harm historic preservation efforts. Both ACRA and the Coalition also submitted comment letters to CEQ in which we highlighted the potential dangers to cultural resources. To read a ACRA's comments, click here. In addition, the Coalition met with the Office of Information and Regulatory Affairs at the White House to provide additional details of our concerns. We are therefore disappointed that the Administration failed to meaningfully address our concerns.

    It is likely that this rule will be challenged in court, and Congress and/or a future Administration could take steps to reverse these changes. ACRA will continue monitoring the impacts of the new rule as it goes into effect. We invite our members to contact us with examples of the impacts they see these new regulations having on the projects on which they work.


  • 07/15/2020 5:01 PM | ACRAsphere Blog Team

    The Trump Administration has unveiled its finalized changes to the National Environmental Policy Act (NEPA). The finalized regulations can be accessed here.

    From the New York Times:

    President Trump on Wednesday unilaterally weakened one of the nation’s bedrock conservation laws, the National Environmental Policy Act, limiting public review of federal infrastructure projects to speed up the permitting of freeways, power plants and pipelines.

    In doing so, the Trump administration claimed it will save hundreds of millions of dollars over almost a decade by significantly reducing the amount of time allowed to complete reviews of major infrastructure projects.

    Revising the 50-year-old law through regulatory reinterpretation is one of the biggest — and most audacious — deregulatory actions of the Trump administration, which to date has moved to roll back 100 rules protecting clean air and water, and others that aim to reduce the threat of human-caused climate change.

    Because the action is coming so late in Mr. Trump’s term, it also elevates the stakes in the November elections. Under federal regulatory law, a Democratic president and Congress could eradicate the NEPA rollback with simple majority votes on Capitol Hill and the president’s signature.

    Republican lawmakers, the oil and gas industry, construction companies, home builders and other businesses have long said the federal permitting process takes too long, and accused environmentalists of using the law to tie up projects they oppose.

    ACRA is reviewing the changes and will provide more information for members shortly. Read the full New York Times article here, and stay tuned to the ACRAsphere for more information.

  • 07/15/2020 12:41 PM | ACRAsphere Blog Team

    Thank you to all who voted in the 2020 ACRA election! This year's election was extremely close, and we eagerly anticipate welcoming new members to the Board of Directors in the fall. We greatly appreciate the service of our departing board members and look forward to their continued leadership on essential committee projects.

    Congratulations to the winning candidates below! Their terms will start in the end of September at the fall board meeting. Be sure to add your congratulations in the comments below!

    Officers

    Officers are elected for two-year terms, with those below serving from 2020-2022.

    • Vice-President - Government Relations: Shawn Patch (New South Associates)

    At-Large Board Positions

    At-Large Board Members are elected for three-year terms, with those below serving from 2020-2023.

    • Daron Duke (Far Western Anthropological Research Group, Inc.)
    • David Harder (Plateau Archaeological Investigations, LLC)
    • Erin Hudson (Environmental Solutions & Innovations, Inc )






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