[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
EXAMINING IMPACTS OF FEDERAL
NATURAL RESOURCES LAWS GONE
ASTRAY, PART II
=======================================================================
OVERSIGHT HEARING
BEFORE THE
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
OF THE
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
Tuesday, July 18, 2017
__________
Serial No. 115-16
__________
Printed for the use of the Committee on Natural Resources
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Available via the World Wide Web: http://www.fdsys.gov
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Committee address: http://naturalresources.house.gov
__________
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COMMITTEE ON NATURAL RESOURCES
ROB BISHOP, UT, Chairman
RAUL M. GRIJALVA, AZ, Ranking Democratic Member
Don Young, AK Grace F. Napolitano, CA
Chairman Emeritus Madeleine Z. Bordallo, GU
Louie Gohmert, TX Jim Costa, CA
Vice Chairman Gregorio Kilili Camacho Sablan,
Doug Lamborn, CO CNMI
Robert J. Wittman, VA Niki Tsongas, MA
Tom McClintock, CA Jared Huffman, CA
Stevan Pearce, NM Vice Ranking Member
Glenn Thompson, PA Alan S. Lowenthal, CA
Paul A. Gosar, AZ Donald S. Beyer, Jr., VA
Raul R. Labrador, ID Norma J. Torres, CA
Scott R. Tipton, CO Ruben Gallego, AZ
Doug LaMalfa, CA Colleen Hanabusa, HI
Jeff Denham, CA Nanette Diaz Barragan, CA
Paul Cook, CA Darren Soto, FL
Bruce Westerman, AR A. Donald McEachin, VA
Garret Graves, LA Anthony G. Brown, MD
Jody B. Hice, GA Wm. Lacy Clay, MO
Aumua Amata Coleman Radewagen, AS Jimmy Gomez, CA
Darin LaHood, IL
Daniel Webster, FL
Jack Bergman, MI
Liz Cheney, WY
Mike Johnson, LA
Jenniffer Gonzalez-Colon, PR
Greg Gianforte, MT
Todd Ungerecht, Acting Chief of Staff
Lisa Pittman, Chief Counsel
David Watkins, Democratic Staff Director
------
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
BRUCE WESTERMAN, AR, Chairman
A. DONALD McEACHIN, VA, Ranking Democratic Member
Louie Gohmert, TX Ruben Gallego, AZ
Raul R. Labrador, ID Jared Huffman, CA
Aumua Amata Coleman Radewagen, AS Darren Soto, FL
Mike Johnson, LA Wm. Lacy Clay, MO
Vice Chairman Raul M. Grijalva, AZ, ex officio
Jenniffer Gonzalez-Colon, PR
Rob Bishop, UT, ex officio
----------
CONTENTS
----------
Page
Hearing held on Tuesday, July 18, 2017........................... 1
Statement of Members:
McEachin, Hon. A. Donald, a Representative in Congress from
the Commonwealth of Virginia............................... 4
Prepared statement of.................................... 5
Westerman, Hon. Bruce, a Representative in Congress from the
State of Arkansas.......................................... 1
Prepared statement of.................................... 3
Statement of Witnesses:
Brandt, Patty, Resident, Eastmoreland Neighborhood, Portland,
Oregon..................................................... 28
Prepared statement of.................................... 30
Leiter, Amanda C., Professor, American University, Washington
College of Law, Washington, DC............................. 34
Prepared statement of.................................... 36
Questions submitted for the record....................... 39
Loveday, Amos J., Ph.D., Atchley Hardin Lane, LLC, Columbus,
Ohio....................................................... 7
Prepared statement of.................................... 8
Questions submitted for the record....................... 11
Martin, Nikki, President, International Association of
Geophysical Contractors, Houston, Texas.................... 42
Prepared statement of.................................... 44
Questions submitted for the record....................... 52
Additional Materials Submitted for the Record:
American Cultural Resources Association, Duane E. Peter,
President, July 18, 2017 Letter to Chairman Westerman and
Ranking Member McEachin, submitted for the record by Rep.
McEachin................................................... 73
List of documents submitted for the record retained in the
Committee's official files................................. 74
OVERSIGHT HEARING ON EXAMINING IMPACTS OF FEDERAL NATURAL RESOURCES
LAWS GONE ASTRAY, PART II
----------
Tuesday, July 18, 2017
U.S. House of Representatives
Subcommittee on Oversight and Investigations
Committee on Natural Resources
Washington, DC
----------
The Subcommittee met, pursuant to notice, at 10:03 a.m., in
room 1324, Longworth House Office Building, Hon. Bruce
Westerman [Chairman of the Subcommittee] presiding.
Present: Representatives Westerman, Gohmert, Radewagen,
Gonzalez-Colon; McEachin, Huffman, Soto, and Clay.
Also present: Representative Graves.
Mr. Westerman. The Subcommittee on Oversight and
Investigations will come to order. The Subcommittee is meeting
today to hear testimony on ``Examining Impacts of Federal
Natural Resources Laws Gone Astray, Part II.''
Under Committee Rule 4(f), oral opening statements at
hearings are limited to the Chairman, the Ranking Minority
Member, the Vice Chair, and the Vice Ranking Member. Therefore,
I ask unanimous consent that all other Members' opening
statements be made part of the hearing record if they are
submitted to the Subcommittee Clerk by 5:00 p.m.
Hearing no objection, so ordered.
I also ask unanimous consent that the gentleman from
Louisiana, Mr. Graves, be allowed to sit with the Subcommittee
and participate in the hearing.
Hearing no objection, so ordered.
I will now recognize myself for 5 minutes for an opening
statement.
STATEMENT OF THE HON. BRUCE WESTERMAN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARKANSAS
Mr. Westerman. Today, we will examine the implementation of
two significant laws: the Marine Mammal Protection Act, or the
MMPA; and the National Historic Preservation Act, also referred
to as NHPA.
It is good to be back with the O&I Subcommittee. I served
on this Committee last Congress. While this is my first hearing
as the Chairman of the Subcommittee, this is the second hearing
in a series that the Oversight and Investigations Subcommittee
is holding to examine the impacts of Federal natural resources
laws that have stretched beyond Congress' original intent.
As a professional engineer and forester by trade, many of
these issues hit close to home for me, and I am committed to
pursuing thoughtful oversight with a scientific approach using
my professional expertise. I look forward to working with
Ranking Member McEachin and the other members of this
Subcommittee.
As this Committee has previously explored, numerous Federal
laws allow the executive branch to enjoy far more power and
exercise more discretion in implementing these laws than
Congress ever intended.
Last May, the Subcommittee held a hearing to discuss with
those impacted how agencies were improperly implementing the
Federal Land Policy and Management Act, the Indian
Reorganization Act, and the Wilderness Act.
As we continue our review, we have found other instances of
Federal agencies expanding their roles through unclear and
over-reaching regulations. In many of these cases, the expanded
implementation of these laws has led to inefficient and
burdensome regulatory processes, excessive amounts of
litigation, and overall adverse effects for the American
taxpayer.
The MMPA was enacted to minimize harm to marine mammals due
to human behavior. Regulations to protect marine mammals,
however, have become extremely restrictive and oppressive
without yielding significantly greater protections for these
species.
For example, it is evident that the inefficient manner in
which regulations are implemented under the MMPA has led to
severe delays in permit issuances for entities wishing to carry
out their operations, while sincerely ensuring the safety of
marine mammals.
One of our four witnesses today will describe how this
lengthy and complicated process affects seismic surveyors'
efforts to explore our country's critical offshore oil and gas
resources. Seismic surveyors have a history of safely operating
in our Nation's oceans, while providing necessary information
to initiate offshore energy production. We depend on such
energy production for our country's energy independence.
Seismic surveyors, however, have faced a long, uphill battle in
obtaining the necessary permits, with some companies still
waiting to receive authorizations today, after beginning the
process over 6 years ago.
This morning, we will also hear testimony related to the
NHPA. Congress passed this Act with the intention of protecting
America's most treasured historic sites from destruction or
substantial alteration. In past years, the Act has provided
success in preserving some of our most cherished historic
sites.
Unfortunately, today, the implementation of this Act has
expanded beyond its original mission of protecting cherished
historic sites, and has created an enormous burden for many
Federal agencies.
Under Section 106 of the law, Federal agencies are required
to consider any possible impacts to historic sites when issuing
permits and approving projects. Traditionally, the law is
intended to allow agencies to consult the National Register of
Historic Places for any impacts of their actions. However,
today, this has evolved into a process that is extremely time-
consuming and burdensome, causing major delays for the approval
of projects and permits, even if there is little expected
impact to historic sites.
The experience of one of our witnesses here with us today,
Ms. Patricia Brandt, also exemplifies how this law is
misapplied and vulnerable to abuse. Her neighborhood of
Eastmoreland, in Portland, Oregon, is currently under
consideration for designation as a historic district on the
National Register. Her experience highlights the difficult and
confusing processes required for opposing listings under
National Park Service rules, and exposes how this Federal
process is often used to bypass local decision making on such
matters.
As we examine issues that have arisen from the improper
implementation of these laws, I hope our discussion today will
bring us closer to potential solutions that bring the
application of these laws back to Congress' original intent. I
look forward to hearing from our witnesses and members, and
look for ways how we can accomplish this for both the MMPA and
the NHPA.
I would now like to thank our witnesses for being here
today, and I look forward to hearing your testimony.
[The prepared statement of Mr. Westerman follows:]
Prepared Statement of the Hon. Bruce Westerman, Chairman, Subcommittee
on Oversight and Investigations
Today, we will examine the implementation of two significant laws--
The Marine Mammal Protection Act, or the MMPA, and the National
Historic Preservation Act, also referred to as NHPA. While this is my
first hearing as the Chairman of the Subcommittee, this is the second
hearing in a series the Oversight and Investigations Subcommittee is
holding to examine the impacts of Federal natural resources laws that
have stretched beyond Congress' original intent. As a professional
engineer and forester by trade, many of these issues hit close to home
for me, and I am committed to pursuing thoughtful oversight with a
scientific approach using my professional expertise. I look forward to
working with Ranking Member McEachin, and the other members of this
Subcommittee.
As this Committee has previously explored, numerous Federal laws
allow the executive branch to enjoy far more power and exercise more
discretion in implementing these laws than Congress ever intended. Last
May, the Subcommittee held a hearing to discuss with those impacted how
agencies were Indian Reorganization Act, and the Wilderness Act.
As we continue our review, we have found other instances of Federal
agencies expanding their roles through unclear and over-reaching
regulations. In many of these cases, the expanded implementation of
these laws has led to inefficient and burdensome regulatory processes,
excessive amounts of litigation, and overall adverse effects for the
American taxpayer.
The MMPA was enacted to minimize harm to marine mammals due to
human behavior. Regulations to protect marine mammals, however, have
become extremely restrictive and oppressive without yielding
significantly greater protections for these species. For example, it is
evident that the inefficient manner in which regulations are
implemented under the MMPA has led to severe delays in permit issuances
for entities wishing to carry out their operations while sincerely
ensuring the safety of marine mammals.
One of our witnesses today will describe how this lengthy and
complicated process affects seismic surveyors' efforts to explore our
country's critical offshore oil and gas resources. Seismic surveyors
have a history of safely operating in our Nation's oceans while
providing necessary information to initiate offshore energy production.
We depend on such energy production for our country's energy
independence. Seismic surveyors, however, have faced a long uphill
battle in obtaining the necessary permits, with some companies still
waiting to receive their authorizations today after beginning the
process over 6 years ago.
This morning we will also hear testimony related to NHPA. Congress
passed this Act with the intention of protecting America's most
treasured historic sites from destruction or substantial alteration. In
past years, the Act has provided success in preserving some of our most
cherished historic sites.
Unfortunately, today the implementation of this Act has expanded
beyond its original mission of protecting cherished historic sites, and
has created an enormous burden for many Federal agencies.
Under Section 106 of the law, Federal agencies are required to
consider any possible impacts to historic sites when issuing permits
and approving projects. Traditionally the law was intended to allow
agencies to consult the National Register of Historic Places for any
impacts of their actions. However, today, this has evolved into a
process that is extremely time consuming and burdensome, causing major
delays for the approval of projects and permits, even if there is
little expected impact to historic sites.
The experience of one of our witnesses here with us today, Ms.
Patricia Brandt, also exemplifies how this law is misapplied and
vulnerable to abuse. Her neighborhood of Eastmoreland, in Portland,
Oregon, is currently under consideration for designation as a historic
district on the National Register. Her experience highlights the
difficult and confusing processes required for opposing listings under
National Park Service rules, and exposes how this Federal process is
often used to bypass local decision making on such matters.
As we examine issues that have arisen from the improper
implementation of these laws, I hope our discussion today will bring us
closer to potential solutions that bring the application of these laws
back to Congress' original intent. I look forward to hearing from our
Members and witnesses as to how we can accomplish this for the MMPA and
NHPA.
I thank our witnesses for being here today, and I look forward to
hearing your testimony. I now recognize the Ranking Member of the
Subcommittee, Mr. McEachin of Virginia, for 5 minutes.
______
Mr. Westerman. I would like to recognize the Ranking Member
of the Subcommittee, Mr. McEachin of Virginia, for 5 minutes.
STATEMENT OF THE HON. A. DONALD McEACHIN, A REPRESENTATIVE IN
CONGRESS FROM THE COMMONWEALTH OF VIRGINIA
Mr. McEachin. Thank you, Mr. Chairman, and welcome back to
the Subcommittee. We look forward to working with you as we go
forward. And thank you to each of our witnesses for making the
time to be here today.
I want to suggest that this hearing is not what it appears
to be.
A hearing to truly understand the question posed by the
Majority would include not just the good people here today, but
the Administration, as well. They would be able to fill in the
details about the decisions behind each of these cases. We are
going to have an incomplete picture today.
A hearing to truly understand the question posed by the
Majority would also have to include one of the most recent and
most egregious cases: this Administration's apparent steam-
rolling of the multiple-use mandate in the Federal Land
Management Policy Act, or FLPMA.
Secretary Zinke and other Trump administration officials
have repeatedly used the term ``energy dominance'' when
advocating even more fossil fuel production on public lands.
However, it is unclear how the Administration plans to balance
its desire for energy dominance with its responsibility to
protect public lands under FLPMA.
FLPMA requires BLM land use to be decided on the basis of
multiple use and sustained yield. FLPMA does not give one type
of land use priority over another, as this Administration is
clearly trying to do by prioritizing coal, oil and gas
extraction on public lands at the expense of other uses like
fishing, camping, and hunting.
The courts have already ruled on this and have determined
that multiple use does not mean that every piece of land must
be available for every use, or that BLM should prioritize
development on lands over other uses. The law does not
prioritize economic return or mineral extraction.
Secretary Zinke's efforts to give away even more public
land to the oil industry under the guise of energy dominance is
eyebrow-raising when we stop to consider what they already
have.
Oil and gas companies have access to 90 percent of BLM
land. In fact, oil companies are not bothering to produce oil
and gas on public lands they already have leased. Fifty-three
percent of public land acreage that has been leased to oil and
gas companies across the United States is not even in
production as of Fiscal Year 2016.
Nevertheless, we will not hear about this Administration's
stretching of FLPMA, because this hearing is really just
another thinly disguised attempt to undermine our bedrock
environmental laws.
While the Majority is doing that, they continue to
completely ignore the single biggest issue in our jurisdiction:
climate change.
Climate change is not just coming, it is here. The breaking
off of the Larsen C ice shelf last week is the latest of a long
list of warnings that my colleagues are straining to ignore.
This Subcommittee should be spending our time looking at
how we can minimize the effects of climate change and how we
can prepare for it.
We should also be looking at uncertain likelihood,
extremely high-consequence events. Consider the potential
release of just a fraction of the gigatons of carbon stored in
the methane hydrates around the globe. If the atmosphere warms
enough for that to happen, it would be irreversible, rapid, and
catastrophic.
But to my colleagues, they want to have yet another hearing
attacking our environmental protections and an administration
that is already in the history books. The American people
deserve better.
Thank you, Mr. Chairman, and I yield back.
[The prepared statement of Mr. McEachin follows:]
Prepared Statement of the Hon. A. Donald McEachin, Ranking Member,
Subcommittee on Oversight and Investigations
Thank you, Mr. Chairman. I would like to welcome you to the
Subcommittee. Thank you to each of our witnesses for making the time to
be here today.
This hearing is not what it appears to be.
A hearing to truly understand the question posed by the Majority
would include not just the good people here today, but the
Administration as well. They would be able to fill in the details about
the decisions behind each of these cases. We are getting an incomplete
picture.
A hearing to truly understand the question posed by the Majority
would also have to include one of the most recent and most egregious
cases--this Administration's apparent steam-rolling of the multiple use
mandate in the Federal Land Management and Policy Act, or FLPMA.
Secretary Zinke and other Trump administration officials have
repeatedly used the term ``energy dominance'' when advocating even more
fossil fuel production on public lands. However, it is unclear how the
Administration plans to balance its desire for ``energy dominance''
with its responsibility to protect public lands under FLPMA.
FLPMA requires BLM land use to be decided on the basis of multiple
use and sustained yield. FLPMA does not give one type of land-use
priority over another, as this Administration is clearly trying to do
by prioritizing coal, oil and gas extraction on public lands at the
expense of other uses like fishing, camping, and hunting.
The courts have already ruled on this, and have determined that
``multiple-use'' does not mean every piece of land must be available
for every use, or that BLM should prioritize development on lands over
other uses. The law does not prioritize economic return or mineral
extraction.
Secretary Zinke's effort to give away even more public land to the
oil industry under the guise of ``energy dominance'' is eyebrow-raising
when we stop to consider what they already have.
Oil and gas companies already have access to 90 percent of BLM
land. In fact, oil companies are not bothering to produce oil and gas
on the public land they have already leased. Fifty-three percent of
public land acreage that has been leased to oil and gas companies
across the United States is not even in production as of Fiscal Year
2016.
Nevertheless, we will not hear about this Administration's
stretching of FLPMA, because this hearing is really just another thinly
disguised attempt to undermine our bedrock environmental laws.
While the Majority is doing that, they continue to completely
ignore the single biggest issue in our jurisdiction.
Climate change is not just coming. It's here.
The calving of the Larsen C ice shelf last week is the latest in a
long list of warnings that my colleagues are straining to ignore.
This Subcommittee should be spending our time looking at how we can
minimize the effects of climate change and how we can prepare for it.
We should also be looking at uncertain-likelihood, extremely high-
consequence events. Consider the potential release of just a fraction
of the gigatons of carbon stored in methane hydrates around the globe.
If the atmosphere warms enough for that to happen, it would be
irreversible, rapid, and catastrophic.
But to my colleagues, it makes more sense to have yet another
hearing attacking our environmental protections and an administration
that is already in the history books. The American people deserve
better.
I yield back.
______
Mr. Westerman. I thank the Ranking Member for his remarks,
and I will now introduce today's witnesses.
Dr. Amos Loveday is a consultant and a former historic
preservation officer for both the Federal Communications
Commission and the state of Ohio. Welcome, Dr. Loveday.
Ms. Patty Brandt is the managing member of Patricia Brandt
Consulting, and a resident of the Eastmoreland neighborhood in
Portland, Oregon. Thank you for joining us.
Ms. Amanda Leiter is a Professor with Washington College of
Law at American University. Thank you for being here, as well.
And Ms. Nikki Martin is the President of the International
Association of Geophysical Contractors. And thank you for your
time today.
Let me remind the witnesses that under Committee Rules,
oral statements must be limited to 5 minutes, but your entire
written statement will appear in the hearing record.
In regards to testimony and questions, our microphones are
not automatic, so you will need to press the talk button before
speaking into the microphone. When you begin, the lights on the
witness table will turn green. When you have 1 minute
remaining, the yellow light will come on. Your time will have
expired when the red light comes on, and I will ask you to
please conclude your statement.
I will also allow the entire panel to testify before
questioning the witnesses.
The Chair now recognizes Dr. Loveday for his testimony.
STATEMENT OF AMOS J. LOVEDAY, PH.D., ATCHLEY HARDIN LANE, LLC,
COLUMBUS, OHIO
Dr. Loveday. Thank you, Mr. Chairman and members of the
Committee. It is truly an honor to be invited to testify at
this hearing on the National Historic Preservation Act. It was
51 years ago today, almost exactly, that your predecessors at
the National Parks and Recreation Subcommittee held hearings in
this room, I believe, on Senate Bill 3035, which would become
the National Historic Preservation Act.
Your hearing memorandum described well the program that was
enacted in this room on that day, and later in August, so I
will not focus on that. Rather, I intend to focus my comments
and also my written comments on the issue raised on page 7,
determined eligible issue.
Let me begin by observing that the National Historic
Preservation Act, as it was passed, rested on two basic
assumptions. First, there would be created a National Register
of Historic Places, a well-researched, public listing of
historic sites worthy of preservation. The National Park
Service was to develop criteria and then, through partnerships
with the states, conduct a nationwide survey to identify sites
that would be eligible, and list those sites on the National
Register.
Second, once that register was completed, Federal agencies,
in the course of carrying out their responsibilities, would
consult the register and, where possible, avoid impact on any
of the listed sites. I emphasize for purposes here, that the
Federal agencies were not expected to extend provisions of the
Act to a site until it was actually listed.
The approach was logical, reasonable, efficient, and
broadly supported. The bill passed both Houses of this body in
late September, and was signed into law by President Johnson on
October 15, 1966. It was shortly after the bill was signed into
law that the issue that you raised, the determined eligible
issue, arose.
In an effort to find money to finance the war in Vietnam,
the Johnson administration decided not to ask Congress for the
appropriation to support the state survey. Hence, the National
Register, the foundational part of the Act, was not funded for
about 6 years. To compensate, the Park Service devised a
temporary solution that would rely on agencies, rather than the
states, to identify eligible sites and do that in the context
of projects that the agencies were undertaking.
The Nixon administration ratified this approach with an
Executive Order, and in 1976 it was written into the Act
itself.
While the eligible approach did not preclude actual
listing, it rendered entry on the National Register to be
unnecessary, since it extended most of the protections of the
Act to sites that were determined eligible, but never listed.
It was a temporary fix that had become permanent.
Let me discuss four problems that were associated with the
Act, four problems that have fallen out of the determined
eligible reinterpretation of the Act.
First, it redefined the point at which protected benefits
of the Act commenced. Under the Act itself, it was the actual
listing on the Register that provided the protection; under the
changes, it was the determined eligible.
Second, it collapsed the identification and evaluation of
effects into a single process, and this has allowed a great
deal of use of the Act for surrogate agendas.
Third, it is inefficient. Federal agency actions, at best,
result in only about 1.5 percent nominations for the surveys
they do. Nor do the Federal agencies' actions identify harm.
The Congressional Research Service, in 2012, for example,
reported that only about 2 percent of the Federal undertakings
identified any harm from that undertaking at all.
If the results are not great, or if the results or maybe
the costs are great, however, one study done--and I would point
out by pro-preservation groups--estimated that the
investigations carried out to meet the legal obligations of the
Act cost about $1 billion a year. For your comparison, that is
the combined budgets of the National Archives, the National
Endowment for the Humanities, the National Endowment for the
Arts, and the National Institute for Museum and Library
Services.
Finally, I would suggest to you my experience is that the
determined eligible approach does not produce very good
research results. My written testimony goes into that in more
detail.
I conclude by simply observing that you are dealing with a
temporary fix 50 years after it went into effect. It is
probably time to take a look at it, understanding that there is
already a lot of money sloshing around in the system. You may
want to redirect to actually doing the surveys that needed to
be done to make this Act work. Thank you.
[The prepared statement of Dr. Loveday follows:]
Prepared Statement of Amos Loveday, Atchley Hardin Lane, LLC
Mr. Chairman, members of the Committee, it is an honor to be
invited to testify at this hearing on the National Historic
Preservation Act. It was 51 years ago almost to the day (July 15, 1966)
that your predecessors on the National Parks and Recreation
Subcommittee of the Committee on Interior and Insular Affairs held
hearings on S. Bill 3035 very near where we are today (Rm. 1328). That
bill would become the National Historic Preservation Act.
Your ``Hearing Memorandum'' described well the program that NHPA
created so I will focus on the ``determined eligible'' issue
highlighted on page 7.
Let me begin by observing the National Historic Preservation Act as
passed rested on two assumptions:
First, there would be created a National Register of
Historic Places, a well-researched, public listing of
historic sites worthy of preservation. The National Park
Service was to develop criteria and then through
partnerships with states conduct a nationwide survey to
identify sites that were eligible.\1\ Those sites after
careful review and documentation were to be listed in the
Register.
---------------------------------------------------------------------------
\1\ The Administration representative, George Hartzog, NPS
Director, advised the Committee on July 15 that the survey would cost
$40,000,000 and require 4 years to complete. The same figures and
schedule were repeated at August hearings and as late as mid-September
the Administration indicated a request for about $10,000,000 would be
in its next budget submission.
Second, Federal agencies in the course of carrying out
their responsibilities would consult that Register and
where possible avoid listed sites. When listed sites could
not be avoided the agency was to consult with a body called
the Advisory Council on Historic Preservation to devise a
---------------------------------------------------------------------------
strategy to minimize harm.
I emphasize for purposes here that Federal agencies were
not expected to extend the provisions of the Act to a site
until it was listed in the National Register and that
listing had been published.
The approach was logical, reasonable, efficient, and broadly
supported.\2\ The bill passed both Houses in late September and the
President signed it on October 15, 1966.
---------------------------------------------------------------------------
\2\ No one testified against the bill.
---------------------------------------------------------------------------
Problems appeared immediately that led to the ``determined
eligible'' issues you alluded to in your memorandum!
To find money to finance the War in Vietnam and Great Society
Programs the Johnson administration decided not to ask Congress to
appropriate the money to support the states' survey.3 Hence
the National Register, the foundation part of the program, was
unfunded.
To compensate the Park Service devised what was promoted as a
temporary solution. It would rely on agencies rather than the states to
identify and nominate sites. In summary, each agency was to do the
research to determine if eligible historic sites were present in its
holding or project areas before it took actions that my cause an
adverse effect.
In theory, the agency was to go through the National Register
nomination and review process for any eligible sites it discovered.
However, when the nomination and review process proved to be time
consuming the Advisory Council devised an approach that allowed
agencies to skip the actual nomination if they agreed to treated
eligible sites as if they were actually listed.
In a series of guidance documents that culminated in 36 CFR 800
ACHP laid down rules to guide agencies--rules that gave preservation
considerable leverage when using the ``determined eligible'' approach.
As Robert Garvey, the first Director of the Advisory Council put it the
agencies ``. . . didn't know what that meant [to consult with ACHP] nor
how to go about it, so we started giving them guidelines that ended up
in sort of 40 pages of regulations that leaves no stone unturned--tell
you exactly what to do every step of the way.\4\
---------------------------------------------------------------------------
\4\ Charles B. Hosmer Jr., Interview with Robert Garvey Conducted
on or about August 4, 1981 (College Park, MD: University of Maryland,
1991), 51-52.
---------------------------------------------------------------------------
This approach was ratified by the Nixon administration in Executive
Order 11593 and the phrase ``or eligible for inclusion in the National
Register'' added to Section 106 of the Act in 1976.\5\ The temporary
fix had become permanent.
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\5\ Executive Order 11593 (May 6, 1971) Sec. 2(b).
While the eligible approach did not preclude actual listing it
rendered listing on the Register unnecessary for Section 106
protection. In doing so it had several pernicious consequences. Let me
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discuss four.
It redefined the point at which the protective benefits of
the Act commenced. Under the 1966 Act as passed a discrete
act of government--The Keeper of the Register adding the
site to the National Register--granted historic status and
the privileges that carried. Under the Eligibility approach
a site acquired historic status when it met the criteria
for consideration. A significant consequence of this change
was the triggering of the Act's provisions without the
owner or anyone else knowing it had occurred.\6\
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\6\ For example, the owner of a property might be prepared to lease
space to a cell tower builder only to be told by the builder that
because the property was discovered to eligible for listing the company
was choosing another site. More disturbing the owner of a property that
was not eligible in its own right might find that a neighboring
property was eligible and to avoid mitigation cost the tower builder is
abandoning the site.
It collapses the identification of sites and the
evaluation of effects into the same process. This
encouraged activists to use historic sites as surrogates
for other agendas. Essentially, those opposed to change
look for eligible sites and use their presence to delay or
prevent projects they oppose.\7\
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\7\ Rick S. Kurtz, ``Historic preservation: A statutory vehicle for
disparate agendas,'' The Social Science Journal, Vol 43 Issue 1, 2006,
67-83, p. 67.
By the beginning of the 21st century preservation standards had
become so lax and the historic sites value as a surrogate
so well known that activists routinely advised taking
advantage of Section 106 and local versions. For example,
one activist advised his readers that historic districts
``are designated for any number of economic and social
advantages [that] may in fact have little to do with
genuine preservation.'' For good measure, he continued
``sometimes it's just preservation as decoration. Other
times it is not even that.'' \8\
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\8\ William E. Schmickle, The Politics of Historic Districts: A
Primer for Grassroots Preservation (Lanham, MD: AltaMira Press, 2007).
9.
The Eligibility approach, designed initially to compensate
for a failed appropriation, appears to have become
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inefficient and costly.
Surveys done to satisfy the ACHP rules appear to identify very
few sites. During the past decade agencies have averaged
over 100,000 106 undertakings annually. Since National
Register listings during that have averaged about 1,350
sites per year, most of which come from Tax credit projects
not Section 106 generated research, the surveys are not
contributing much to the actual National Register program.
At best agency efforts result in new register listings less
than 1.4 percent of the time.\9\
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\9\ This data is taken from Annual reports THPOs and SHPOs submit
to NPS to fulfill the reporting requirements of their Historic
Preservation Fund Grants.
Nor do the surveys seem to identify harms to sites. For example,
a 2012 CRS report indicated that Section 106 surveys found
about 2 percent of the Federal undertakings had an adverse
impact on historic sites.\10\
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\10\ Kristina Alexander, A Section 106 Review Under the National
Historic Preservation Act (NHPA): How it Works. (Congressional Research
Service, May 16, 2012) P.3.
If the results appear to be meager the cost seems great. While we
do not have comprehensive accounting of costs, a 2012 the
American Cultural Resources Association (ACRA) study is
suggestive. The study estimated members income from
``investigations'' carried out for, ``both for private
industry and for Federal, state, and local governments, so
that these organizations can efficiently meet their legal
obligations under the National Historic Preservation Act
and related laws and regulations'' at over a billion
dollars.\11\ If the ACRA estimate is approximately correct
contract costs alone for National Historic Preservation Act
compliance is greater than the combined budgets of the
National Archives, The National Endowment for the
Humanities, The National Endowment for the Arts, and the
institute of Museum and Library Services--or put
differently, roughly 40 percent of the National Park
Service budget.\12\
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\11\ The quote is from the ACRA website. The site was changed in
2016(?) but hard copies of the pages are in the authors files. The data
was also in Donn R. Grenda, Ph.D., Michael Heilen, Ph.D., Teresita
Majewski, Ph.D., Characterizing the U.S. Cultural Heritage Management
Industry with Independently Collected and Analyzed Data, Paper
presented at the European Association of Archaeologists 19th Annual
Meeting, Pilsen, Czech Republic, 2013, particularly slides 8-11. Marion
Werkheiser, ``The CRM Industry in the Age of Trump.'' ACRA Webinar
Presentation 11/28/2016 accessed at http://www.acra-crm.org/resources/
Pictures/WebinarTranscript_ 11_28_2016.pdf.
To be clear I make no claim that the entire billion is from Section
106 surveys, but clearly a large portion is.
\12\ Data on Agency budgets is take from the respective
organizations Federal budget submissions.
Finally, it may be observed that The Eligibility approach
has not produced good history. The research it produces is
often cursory and the elimination of the review steps the
full National Register Nomination requires leaves the
``determined eligible approach'' open to abuse. As one
writer on the American Cultural Resources Association
``list serve'' observed to his fellows in January 2002
``the present system . . . requires us to produce garbage
documents for agencies which hold the resources in contempt
and think even less of the law.'' \13\
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\13\ Mark Campbell, e-mail message to [email protected],
January 19, 2002 16:23:02.
Indeed, from data NPS collected in 2005 on State Historic
Preservation Office workloads and staff assignments, it
appears that about 30 times more State Historic
Preservation Office effort went into each National Register
Nominations review than into the reviews of the agency
contractor reports that ACHP requires.\14\ Yet each
essentially requires the same level of protection.
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\14\ In 2005 (not an unusual year) the State Historic Preservation
Offices employed a total of 214 people to review the 105,400 survey
reports consultants and agencies prepared. Assuming a 260-day work year
with allowances made for holidays and vacations each employee had to
review two consultant reports (which can be well over 100 pages long
and identify dozens of potential historic sites) per day. NPS Report
The National Historic Preservation Program: The Historic Preservation
Fund Grant (FY 2005)--at a Glance March 3, 2006 (Washington: NPS,
2006). NPS, ``Historic Preservation Fund National Register Program Area
FY 2005 Products State Nominations Listed during 2005,'' in Historic
Preservation Fund Grants to States FY 2005 Preliminary End of Year
Reports (Washington, D.C.: NPS, 2006).
It is instructive that at least 15 State Historic Preservation
Office carry disclaimers as to the accuracy of the data in
their files to their websites or printed forms.\15\
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\15\ For example, the Delaware SHPO advises people seeking
authorization to use its database ``The use of any of this information
is at your own risk. The Division of Historical and Cultural Affairs
does not assume any legal responsibility for the information contained
herein, which is provided ``as is'' with no warranties of any kind.''
Delaware Division of Historical and Cultural Affairs, ``Application
From for user account on the Cultural and Historical Resources
Information System.''
Main advises ``No guarantee, inferred or explicit is made regarding
the accuracy of the survey information, addresses, locations on the
maps, or eligibility assessments. Many of the surveyed properties in
CARMA may have incomplete or missing addresses. The absence of a survey
form for a specific property is no indicator of whether or not a
property has been recorded or documented by the Commission. Cultural &
Architectural Resource Management Archive (CARMA) Map Viewer, Site
Information and Disclaimer.
The authors of an article in the Public Historian, a professional
publication that caters to historians who work outside of academia,
reviewed non-academic research in 1993 and dismissed most Section 106
reports as ``brief,'' ``inconclusive.'' See Bastian and Bergstrom,
``Reviewing Gray Literature: Drawing Public History's Most Applied
Works out of the Shadows,'' The Public Historian, Vol 15, No 2, (Spring
of 1993), 67.
I conclude with the observation that the ``determined eligible
approach,'' a temporary measure created to compensate for Vietnam War
time austerity, should be revisited and maybe even retired. We should
return to the intent of the Act--the identification of sites worthy of
preservation for their historic value, a robust National Register
Program grounded in excellent research that is fully visible to all
citizens, and an administration of preservation rules firmly committed
to resisting their use as tool for other agendas.
That is not what we have at present. Indeed, we have a complex and
often opaque process. One, to use William Murtagh the first Keeper of
the National Register words, in which ``process and methodology have
replaced subject in many instances.'' \16\ A process that Robert Stipe,
an attorney and leading preservationist during the closing years of the
20th century described as ``highly technical, sometimes almost to the
point of unintelligible . . .'' \17\
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\16\ William Murtagh, ``The Preservation Act of 1966: 20 Years
Later,'' Preservation News, Special Supplement, October, 1986. S16.
\17\ White and Edmondson, Procedural Due Process in Plain English:
A Guide For Preservation Commissions, 1.
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The National Trust's 2010 analysis of the National Historic
Preservation Act's Section 106 observed that some preservationists
expected it and ACHP to be ``a thumb on the preservation side of the
scales.'' Casting preservation as a practice that merchants at one time
used to cheat customers explains the anger that often swirls around
preservation controversies. As with the shopper of old who expected the
butcher's scales to provide an honest balance, many approach the
preservation process expecting fairness but come away feeling
cheated.\18\
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\18\ Lisa E. Barras, ``Part 1, Section 106 of the National Historic
Preservation Act Back to the Basics (Washington, D.C.: National Trust
for Historic Preservation, 2010), p.29. http://
www.preservationnation.org/resources/legal-resources/additional-
resources/Back-to-Basics-Summary.pdf (accessed September 27, 2010).
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As the Committee revisits the ``determined eligible'' matter it
would be well to keep in mind that it arose out of austerity. Put
candidly Congress passed a law, then failed to fund its implementation
and staff devised a work around. If Congress expects to fix the
problems that have arisen it must either increase funding so the
Preservation Act can function as drafters intended or reduce the legal
mandate to fit the resources. Whatever steps this Committee takes I
would hope that a review of funding levels for the program gets as much
attention as other problems.
______
Questions Submitted for the Record to Amos J. Loveday, Ph.D., Atchley
Hardin Lane, LLC
Questions Submitted by Rep. Westerman
Question 1. You note in your testimony that activists use the
identification of historic sites during the Section 106 process to
further their own purposes and delay or block projects they oppose.
1a. Can you elaborate on how this tactic works?
Answer. An organization or person who has little or no interest in
a historic building/site but who may wish to prevent a project for
other reasons can use actual or eligible National Register listings in
the project's Area of Potential Effect to invoke procedural steps (i.e.
the need for studies, public input, etc.) that delay undertaking
approval. The most common techniques are:
Delay responding to consultation requests: Perhaps the
most common tactic activists use is delaying their response
to agency or agency licensees/permittees requests to
comment on undertakings. For example, documents filed with
the Federal Communications Commission indicated that tribes
require on the average 110 days to complete consultation on
wireless undertakings.\1\
---------------------------------------------------------------------------
\1\ ``Joint Comments of CTIA and the Wireless Infrastructure
Association in the Matter of Acceleration Wireless Broad Band
Deployment by Removing Barriers to Infrastructure Investment, WT Docket
No. 17-79,'' July 17, 2017, p. 4.
``Restart the clock:'' While 36 CFR 800 and most agency
rules have deadlines they are triggered by the receipt of
``adequately documented'' reports. Claiming that the
documentation is inadequate restarts the clock. Commenters
by Letting the clock run down to a few days and then
submitting comments can effectively delay. Similarly, a
Tribal Historic Preservation Officer (THPO) or State
Historic Preservation Officer (SHPO) determined to stretch
the timeline can wait until near the end of the 30-day
period and request more documentation. This is a common
enough practice that the FCC included a provision in its
Nationwide Programmatic Agreement to discourage its use.\2\
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\2\ ``Nationwide Programmatic Agreement for review of effects on
historic properties for certain undertakings approved by the Federal
Communications Commission,'' Section VII(A)(3). If the SHPO/THPO
receives a comment or objection, in accordance with Section V.E., more
than 25 but less than 31 days following its receipt of the initial
submission, the SHPO/THPO shall have 5 calendar days to consider such
comment or objection before the Section 106 process is complete or the
matter may be submitted to the Commission.
Expand the Area of Effect: Tribes and environmental
activists often seek to expand the area an undertaking will
impact. Opponents of wind power, for example, tried to
designate all of Nantucket Sound as a ``traditional
Cultural Property,'' and hence subject broad expanses of
the Sound to Section 106. The Boston Globe editorialized
that ``Of all the gimmicks that opponents of Cape Wind have
resorted to, working with the Wampanoag Tribes to protect
all of Nantucket Sound for cultural reasons wins the prize
for sheer cynicism.'' \3\
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\3\ _____, ``A cynical gimmick against Cape Wind,'' The Boston
Globe, October 27, 2009.
Entangle Federal and local preservation: Activists
frequently claim that National Register eligibility is
honorary or point out that effects can be easily mitigated.
Because local and state laws frequently use the same
definitions and in some cases actually link to National
Register designations, agreeing to National Register
eligibility triggers local/state procedures. The case of
Lincoln Place, a post-World War II apartment complex in
Venice, California is an example. When the owner decided to
upgrade to more expensive apartments the Lincoln Place
Tenants Association used the National Register nomination
process to reopen local consideration of the owners
permits.\4\ This case dragged on for over a decade.
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\4\ This case was discussed in detail during 2003 ACHP ``Oversight
Hearings.'' See Subcommittee on National Parks, Recreation, and Public
Lands of the Committee on Resources U.S. House of Representatives One
Hundred Eighty Congress First Session June 3, 2003, ``Reauthorization
of the Advisory Council on Historic Preservation and Private Property
Protection under the National Historic Preservation Act,'' PP 6-38.
National Trust for Historic Preservation, California Dream: Lincoln
Place Apartments, Preservation Magazine, Winter 2016, (Accessed at
https://savingplaces.org/stories/california-dream-lincoln-place-
apartments#.WXuy MojysuU).
The Lincoln Place case relied on four tactic activists frequently
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use:
-- Increasing the cost of the project (by extending the
timeline and increasing required studies) with the end game
being to encourage its alteration or abandonment. Typically,
activists have their costs funded by third parties, while
business and individuals often self-fund. This shifts the cost
burden to individuals, businesses, or not for profit
organizations.
-- Delaying an undertaking to allow time to organize
opposition.
-- Linking the Federal project to more stringent local and
state laws.
-- Challenging decisions after the fact, usually on
procedural grounds to force reconsideration.
Broadly speaking delay/blocking tactics fall into two broad
groups--one that seeks to impede or manage change; the other uses
Section 106 blocking to generate revenue.
``Change blocking:'' Activists view the National Historic
Preservation Act and particularly Section 106 as a tool to
manage change.\5\ Its procedural complexity, ambiguous
definitions, and broad support base makes historic
preservation an ideal instrument for resistance or as one
author put it an ideal ``statutory vehicle for disparate
agendas.'' \6\ For example, it has figured prominently in
the opposition to U.S. Postal Service's efforts to close
post offices in several communities. Those invoking Section
106 cite concerns ranging from closure ``weakens
downtowns'' to ``a right-wing conspiracy.'' \7\
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\5\ Benjamin Olivo, ``Preservation is about managing change
Conservation Society's new leader says,'' my aanantonio.com, August 22,
2013 (Accessed at http://blog.mysanantonio.com/downtown / 2013 / 08 /
conservation-societys-new-leader-wants-group-to-be-involved-not-
reactionary/). Henry J. Evans, Jr., Lewes historic panel studies
national standards,'' Cape Gazette, July 28, 2006 (Accessed 7/30/06 at
http://www.capegazette.com/storiescurrent/0706/lewespanel072806.html).
This view--namely that preservation was about managing change was
common. For example see Stephen Longmire, ``Double Or Nothing,'' The
Sag Harbor Express, December 12, 2008, http://
sagharborexpress.sagharborpublishing.com/shexpress/point-of-view/
double-or-nothing-1871 (Accessed December 16, 2008).
\6\ Rick S. Kurtz, ``Historic Preservation: A Statutory Vehicle for
Disparate Agendas.'' The Social Science Journal 43, no. 1 (2006), p. 67
(see http://www.sciencedirect.com/science/article/pii/
S0362331905000972).
\7\ Kaid Benfield, ``Why Old Post Offices Still Matter,''
CityLab.com, January 22, 2014 (Accessed at http://www.citylab.com/work/
2014/01/why-old-post-offices-matter/8170/). _____, ``Mayor Nates, other
officials vow to save downtown Berkeley post office,'' KTVU.Com
(Accessed at https://patch.com/california/berkeley/mayor-bates-other-
officials-vow-to-save-downtown-post-office).
``We are opposed to closing this building and will do
everything we can to stop this . . . the plan to sell the
downtown post office and other post offices across the Nation
is `part of a right-wing plan to privatize our public services
(emphasis added) . . .' Bates [Berkeley Mayor] said there also
are other efforts to try to save the post offices, such as
possible lawsuits based on the National Historic Preservation
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Act . . ..''
Fee generation: While not the intent of Section 106, the
rule is sometimes used to extract money from Federal
agencies and their licensees/permittees. Put simply but not
inaccurately, activists used it to hold undertakings
hostage until their sponsors pay. Their use of Section 106,
construed charitably, may be regarded as a preservation
tax. Many who run afoul of Section 106 simply regard
activists' behavior as extortion. Several tactics are used
but three are most common:
o Mitigation payments: Recently activists
(including preservation organizations) have used Section 106 as
a funding mechanism. Essentially, they seize on the presence of
eligible or listed National Register sites to compel agencies
or businesses needing permits to make mitigation payments.
Most commonly, activists contending the Federal
undertaking harms a historic site, will pressure an agency or
its licensee to make a payment, often for purposes not directly
related to the site in question and usually to a not for
profit. Once the Agency or licensee agrees, the State Historic
Preservation Officer and the Advisory Council on Historic
Preservation (ACHP) will conclude that the alleged adverse
effect has been mitigated. Until recently payments were usually
small and when the mitigation involved businesses they paid to
avoid delays. Recently mitigation payments have increased.
A pipeline project in Ohio illustrates how the
mitigation payment system works. Rover Pipeline destroyed a
house that was eligible for but not listed on the National
Register in Carol County, Ohio. As mitigation, the Ohio
Historic Preservation Office encouraged Rover to create a $1
million mitigation fund that the Historic Preservation Office
could re grant. It proceeded to do so for projects that had no
connection to the destroyed house. In fact, some projects were
on the other side of the state.
``It made my day,'' Dana Nemeth, director of the
Wood County Historical Center and Museum, said of learning Wood
County [Wood County is over 100 miles from Carol County] would
be granted up to $50,000. ``You're always up against the wall
trying to do what's best for the site, and you have limited
funds to get everything done.''
. . . the historical museum submitted a plan to the
state to repair the former asylum, built in 1885. Plaster
inside the building is flaking due to moisture, which is coming
up into the brick walls from a concrete slab poured underneath
the asylum in the early 2000s.
. . . Quotes came in at less than $50,000, and
Nemeth asked in the application that any remaining funds be
used to help create new signage at the museum.\8\
---------------------------------------------------------------------------
\8\ ____, ``Wood County to Benefit from Rover pipeline firm's
gaffe,'' Museum to gain $50,000 after firm destroyed historic structure
elsewhere, Sentinel-Tribune, May 10, 2017 (Accessed at http://www.sent-
trib.com/news/front_page/wood-county-to-benefit-from-rover-pipeline-
firm-s-gaffe/article_da39f9f2-65c3-5eeb-a1fe-f8a60f34dbdf.html).
At best mitigation has become a way to fund preservation
projects, at worst a sort of fine. It may be noted that neither
the National Historic Preservation Act nor 36 CFR 800 requires
cash payments or mentions the word fine. 36 CFR 800 does
however strongly imply that mitigation is to reduce the impact
of the undertaking on the resource effected--not fund a site on
the other side of the state. To quote 36 CFR 800.1 the purpose
of Section 106 is ``. . . to identify historic properties
potentially affected by the undertaking, assess its effects,
and seek ways to avoid, minimize or mitigate any adverse
---------------------------------------------------------------------------
effects on historic properties.''
o Tribal comment fees: The second Section 106
for profit strategy, used frequently by Indian tribes in
dealing with FCC projects, requires the applicants for FCC
licenses to pay a fee for tribal comment. In summary, ACHP and
the FCC assume that only the tribes possess the information
that can allow the identification of tribal historic sites
during the Section 106 process and require licensees to consult
with the 566 federally recognized tribes. Unless the licensee
pays an ``up front'' fee the project is often delayed while the
FCC goes through the process of contacting the tribes, often
several times.
Because individually fees have been low (the $250--$600
range) FCC licensees historically have paid to avoid the delay.
Recently the number of tribes (the FCC reports on the average
11) seeking to comment has increased and the amount of
individual fees have risen. In one widely reported case for
example an FCC applicant is said to have paid $173,000 for
tribal reviews of 23 small cell/DAS installations in Huston,
Texas.\9\
---------------------------------------------------------------------------
\9\ ____. ``Is This Legalized Extortion?'' Telecom Review, June 1,
2017.
The record leaves little doubt that the tribes consider
Section 106 fees as an income producing activity and treat them
as mandatory. The following is a set of instructions the
Wichita and Affiliated Tribes provided to wireless industry
applicant using the FCC's Tower Constructing Notification
---------------------------------------------------------------------------
System.
The Wichita and Affiliated Tribes is requesting
consulting party status on all proposed projects that the
Federal Communications Commission undertakes in the states of
Kansas, Oklahoma, and Texas.
As of January 4, 2016, we are also charging an
administrative fee (emphasis added) in the amount of $750.00
for ALL TCNS filings, including collocations. There is also a
$50 per pole fee for all non-excluded poles for PTC when using
the batch process . . ..
A determination will not be issued without payment,
and your Section 106 obligations with the tribe IS NOT
completed until payment is received.\10\ (emphasis added)
---------------------------------------------------------------------------
\10\ Mary Botone, Cell Tower Administrator Witchita and Affiliated
Tribes, communications contained in Diamond Communications Project
Number 622541 (``UNO Mas TX''), attached to FCC Form 620, Attachment 6
``Tribal and NHO Involvement'' titled Letter Diamond Communications 02/
05/2016, pp 2-3.
It should be noted that the tribes and the Advisory
Council are advocating to extend the FCC approach to other
agencies and the Advisory Council is considering ways, such as
including Section 106 in the Federal Permitting Improvement
Steering Council (FPISC) mandate to allow State Historic
Preservation Officers to also charge review fees.\11\
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\11\ Advisory Council on Historic Preservation Summer Business
Meeting, Washington, DC, July 20-21, 2017, pp 5-6. (Accessed at http://
www.achp.gov/docs/tab1-meetingbook.pdf).
o Employee tribal monitors: A third mitigation
for profit strategy sometimes used by the tribes requires an
agency or Federal licensee to employee tribal monitors. The
tribe, during its participation in the Section 106 Process,
will advise that an eligible site might be present in the
project area, but the tribe cannot be certain. It then asks
that tribal members be hired to monitor the work so as to
advise the agency or licensee should a site be found. The
approach is open to abuse as a 2014 Department of the Interior
Inspector General report to Congress shows.\12\ Several members
of the Crow Tribe were convicted for illegally asking for
monitoring payments (about $500,000 by press accounts) from
Federal licensees.\13\
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\12\ Office of Inspector General, U.S. Department of the Interior,
Semiannual Report to Congress, October 2014, pp 25-27 (Accessed at
https://www.doioig.gov/sites/doioig.gov/files/October2014SAR.pdf).
\13\ _____ ``Three Crow tribal employees convicted of $500 theft,''
The Missoulian, August 16, 2013 (Accessed at http://missoulian.com/
news/state-and-regional/crow-tribal-employees-convicted-of-k-theft/
article_fa569394-06af-11e3-9a42-001a4bcf887a.html).
Funding: A word about fees may be in order. As noted the State
Historic Preservation Offices and Tribal Preservation Offices are
funded by an NPS administered grant drawn from the Historic
Preservation Fund. One of the complaints preservationist have is that
Congress' refusal to increase the size of the HPF authorizations has
resulted in the grants being stagnant. ACHP, supported by the National
Trust and others in the Preservation community, has embarked on a
campaign to ``end run'' the appropriation process by forcing agencies
---------------------------------------------------------------------------
to pay fees.
Congress should confront the issue by either endorsing the ACHP
approach, increasing HPF appropriations, or reconfiguring the Federal
preservation program so it can live with in the resources available.
The funding situation that presently exists serves no one well and
further distorts an already misshapen program.
1b. Does this comply with the intent of the National Historic
Preservation Act of 1966?
Answer. In my opinion, it does not comply with the intent of the
Act. The National Historic Preservation Act assumed that NPS, working
with the states would prepare a list of historic sites (the National
Register) that would guide agency planning and in most cases, allow
avoidance of historic sites. Fifty years later that list has not been
completed. As a result, each Federal project is required to identify
sites at or near the time the work is to occur. This reduces the
identification of historic sites and the determination of an
undertaking's effect to a single procedure and tends to encourage
misuse of Section 106. Moreover, as will be discussed more fully in the
response to other questions neither the ACHP nor agencies
systematically check for abuses such as those cited above. (The Crow
abuses were discovered by the tribe itself).
Question 2. Mr. Loveday, according to the NHPA, a Federal agency
must take into account the effect of every ``Federal undertaking'' on
historic properties.
2a. What role does each permitting agency play in deciding what
falls under this definition?
Answer. The ACHP definition of undertaking reads: ``Undertaking
means a project, activity, or program funded in whole or in part under
the direct or indirect jurisdiction of a Federal agency, including
those carried out by or on behalf of a Federal agency; those carried
out with Federal financial assistance; and those requiring a Federal
permit, license or approval'' and which have the potential to affect a
historic site if one is present.
An agency can determine, subject to ACHP challenge, which of its
actions are undertakings for purposes of section 106. For example, the
FCC attached a list of Activities it considers undertakings to a 2004
agreement with ACHP noting that ``The Federal Communications Commission
may determine in the future that additional communications facilities/
activities are undertakings for purposes of Section 106 or that certain
covered facilities on this list no longer constitute undertakings for
purposes of Section 106.'' \14\
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\14\ ``List of FCC Activities Covered by the Nationwide
Programmatic Agreement. Attachment 2'' https://apps.fcc.gov/
edocs_public/attachmatch/FCC-04-222A5.pdf.
ACHP also has procedures spelled out in 36 CFR 800.14 that allows
agencies to customize ACHP rules to their needs. ACHP has in fact
entered into agreements with several agencies to streamline its rules.
The list of agreements maybe accessed at ``ACHP Agreement Documents,''
---------------------------------------------------------------------------
http://www.achp.gov/agreementdocs.html.
For a good, but dated, overview of the ACHP's interpretation of the
meaning and scope of ``undertaking'' and the ACHP's interpretation of
court rulings on the subject see Federal Historic Preservation Case Law
1966-1996 and Federal Historic Preservation Case Law Update 1996-2000
section IV Court Opinions on Compliance with Section 106 and the
Councils Regulations and the ``Archive of ACHP Case Digests--Protecting
Historic Properties: Section 106 in Action 1986-2005.'' \15\
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\15\ These documents may be accessed ACHP websites, http://
www.achp.gov/book/sectionIV.html#IVA2, http://www.achp.gov/casearchive/
casearchive.html.
While provisions for ``tailoring'' of undertakings are available to
agencies. taking advantage of them is often arduous and time consuming.
For example, it required almost 5 years to craft the Nationwide
Programmatic Agreements the FCC uses for towers. Moreover, the
processes spelled out in 36 CFR 800.14 are too cumbersome to be useful
for undertakings that involve emerging technology, or industries
subject to rapid change. They take too long. For Example, the FCC
agreements and the accompanying procedures for dealing with tribal
consultation, designed to deal with tall towers, the standard at the
time discussion on the alternative procedures began, were ill equipped
to accommodate the needs of small cells and distributed antenna
systems, the emerging technology by the time the agreements went into
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effect.
2b. Your testimony mentioned that Federal agencies have averaged a
large number of undertakings annually. Are you aware of any controversy
regarding the definition of an ``undertaking''?
Answer. Let me divide this question into two parts.
The following graph shows the number of Federal undertakings
reviewed by the State and Tribal Preservation Officers. The SHPO
numbers correlate generally with the economic cycle and the level of
Federal activity. THPO activity is showing growth because of an
increasing number of THPOs (58 in 2006 vs 151 in 2014) and tribes
expanding their geographic areas of interest.
[GRAPHIC] [TIFF OMITTED] T6387.001
.epsAre there issues over definitions? Yes--let me briefly discuss
three, but prefaced with some background. When Congress passed the
National Historic Preservation Act an ``undertaking'' (the term
``undertaking'' was selected to replace ``project'' during the 1966
hearings) was considered either a direct agency act or responsibility
that followed Federal money for such things as highway construction or
urban renewal. As Federal environmental programs came into existence
undertaking increasingly came to apply to licenses or permits. Today
most Section 106 undertakings probably fall into that licenses/permits
category.
Small Handles: The first disagreement has to do with the
level of Federal involvement necessary for an agency action
to be considered an undertaking. Sometimes referred to as
the ``Small Federal Handles'' issue it has plagued section
106 for years. In July 2016 ACHP Chairman Donaldson for
example noted that ``a long-standing issue in the Section
106 process has been the extent of Federal agency
responsibilities when there is only limited Federal
involvement in a project, such as a Corps of Engineers'
permit.'' The issue lies at the heart of specific
controversies but more significantly ``Small Handles''
burdens the Section 106 review process and agencies with
thousands of cases that have little or no consequence for
historic sites.\16\
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\16\ For an overview of ACHP's recent efforts to address the issues
See ACHP, ``Minutes Summer Meeting Advisory Council on Historic
Preservation, July 14, 2016, Washington, D.C. p. 6-7 (Accessed at
http://www.achp.gov/docs/meeting-book-minutes-7142016.pdf).
Indirect Federal involvement: Over the years there have
been several challenges to the broad definition of
undertaking. Typically, licensees object to the broad
definition. For example, CTIA challenged the FCC/ACHP
interpretation that treated the construction of towers
(which do not require Federal approval or involve Federal
funding) as an undertaking. In general, the Courts have
upheld ACHP's broad definition of undertaking. In only a
few instances such as The National Mining Association v.
Fowler have the courts limited ACHP's far reaching
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interpretation of undertaking.
Active infrastructure: A more abstract but broadly
consequential disagreement exists on the treatment of
active infrastructure as eligible historic sites (e.g.
active roads, railroads, damns, airports, etc.,). Congress
enacted the National Historic Preservation Act in 1966
largely to protect traditional historic sites from damage
resulting from infrastructure expansion. In the intervening
50 years ACHP, through Section 106, has expanded its
understanding of eligible sites to include the
infrastructure itself as a class of historic sites and
hence the modernization of that infrastructure as an
undertaking. As a result, such activities as bridge
replacement, railroad abandonment, or airport upgrades can
be considered adverse effects.\17\
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\17\ For example, see Advisory Council on Historic Preservation,
``Exemption Regarding Historic Preservation Review Process for Effects
to the Interstate Highway System,'' Federal Register, Vol. 70, No. 46
Thursday March 10, 2005, pp 11928-11931.
Unless exempted the improvements, upgrades, and modernization
that infrastructure requires becomes subject to the
preservation review process and the persistent manipulation
associated with Section 106. Active infrastructure in a
dynamic economy needs to adopt improved materials and new
construction techniques, adjust to user demands, and
integrate with other systems. Since the fundamental premise
of preservation is that the significant old should be
protected the section 106 process tends to resist
modernization. At the very least it adds expense and in the
worst-cases forces delays in the rebuilding of aging
infrastructure. The Administration and Congress discovered
the broad implications of treating infrastructure as
historic when preservation slowed to a trickle the
infrastructure spending that was a part of the American
Recovery and Reinvestment Act of 2009 stimulus package. The
President seemingly frustrated at the slow pace of spending
wondered in an interview why ``there's no such thing as a
shovel ready project.'' He obviously had not read the
General Accounting Office report that pointed out Federal,
state, and local government agencies identified compliance
with the National Historic Preservation Act as one of the
primary reasons for the delays.\18\
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\18\ Stephanie Condon, ``Obama: `No Such Thing as Shovel-Ready
Projects,' '' CBS News October 13, 2010, 3:58 PM. General Accounting
Office, Recovery Act Project Selection and Starts Are Influenced by
Certain Federal Requirements and Other Factors (Washington, DC: U.S.
Government Accountability Office, 2010). PP. 12,18.
Nothing in the record suggest that drafters and sponsors of the
Historic Preservation Act intended for active
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infrastructure assets to be treated as historic sites.
Broad concerns about treating active infrastructure as
historically eligible sites aside, the Federal preservation
establishment lacks the capability to balance
infrastructure and preservation needs. Often there is lack
of agreement with in the preservation establishment itself
on how to evaluate infrastructure assets, what changes
constitute an adverse effect, or even what is significant.
For example, The Federal Railroad Administration reported
to the House Committee on Transportation and Infrastructure
and the Senate Committee on Commerce, Science, and
Transportation in 2013 that ``there is currently no
consistent approach on how to address National Register of
Historic Places eligibility of railroad corridors . . .''
and recommended exempting many categories of
undertakings.\19\
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\19\ Federal Railroad Administration, Streamlining Compliance with
Section 4(F) of the Department of Transportation Act and Section 106 of
the National Historic Preservation Act for Federally Funded Railroad
Infrastructure Repair and Improvement Projects, March 2013, pp i & ii,
https://www.fra.dot.gov/eLib/details/L04483).
In part, the problem lies with a preservation perspective rooted
in architectural history, archaeology, and aesthetics
rather than the history of science, technology, and
economics; and in part a preservation establishment that is
more wedded to procedures than scholarship.\20\ As the 2009
American Recovery and Reinvestment Act demonstrated, when
the economy needed stimulus preservation simply could not
move fast enough to smoothly accommodate it. One hears
echoes of 2009 in the recent broadband infrastructure
issues. The FCC one of the most technically sophisticated
and Section 106 accommodating agencies in the Federal
Government in recent years has not been able to efficiently
harmonize preservation rules adopted for tall tower
undertakings with evolving ``4g'' and ``5g'' wireless
technology needs.
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\20\ Looking back over the 20th Century Richard Moe, President of
the National Trust for Historic Preservation, would say in 1996 that
Preservationists and Historians were ``siblings separated at birth,
growing up to pursue different goals . . .'' Richard Moe, ``Historians
and Preservationists' Partnership for the Centuries,'' abstract, Forum
News 2, no. 6 (September/October 1996).
Given that the ``undertaking'' as a concept is broad and the
tendency particularly at the Advisory Council, is to expand its
boundaries, there will likely continue to be disagreements over its
definition.\21\ That having been said, it would serve the country well
for Congress to rethink just what government actions should be
subordinated to preservation scrutiny. For example, is it acceptable
for preservation rules to thwart a properly enacted economic recovery
program or consistent with the Nation's history to allow remnants of
the past to impede addressing present needs?
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\21\ ACHP and the State/Tribal Preservation Officers have a history
of aggressively expanding the definition of undertaking. Examples
include efforts (unsuccessful) to treat the termination of the U.S.
Trust relationship with Micronesia as an undertaking; argue that the
replacement of obsolete scientific equipment is subject to Section 106
and claimed at one point FAA flight plans over historic sites were
undertakings. (See Amendments to Proposed Council Comment Regarding
Termination of the United States Trustee Ship of the Islands of
Micronesia n.p.: Advisory Council on Historic Preservation, April 25,
1981; Williams Luther, Williams, Luther Senior Science Advisor National
Science Foundation Statement before the Advisory Council February 5,
1990; and S.K. Stevens, Chairman ACHP, to Hon. John J. Crocker, Jr,
Chairman of the Civil Aeronautics Board, April 30, 1969).
The question has been asked in one form or another over the years.
In fact, it was a recurring topic of conversation even in the early
days of the republic. Significantly the founders advised caution
against giving the past too much of a sway over the present. For
example, Thomas Jefferson worried about the past's grip famously
writing that the earth belongs to the present and theorizing that a
revolution might be needed every generation to loosen its grasp.\22\
James Madison was more optimistic about the new Nation's ability to
deal with its past observing in Federalist 14 that ``is it not the
glory of the people of America, that, whilst they have paid a decent
regard to the opinions of former times and other nations, they have not
suffered a blind veneration for antiquity, for custom, or for names, to
over-rule the suggestions of their own good sense, the knowledge of
their own situation, and the lessons of their own experience?'' \23\
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\22\ Thomas Jefferson to James Madison, September 6, 1798 (Accessed
at http://press-pubs.uchicago.edu/founders/documents/v1ch2s23.html).
\23\ James Madison, ``The Federalist Papers: No. 14'' (Accessed at
http://avalon.law.yale.edu/18th_century/fed14.asp).
Section 106, if not attended too, may prove that Madison's optimism
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was unwarranted.
Question 3. Mr. Loveday, you discuss how agencies must identify
historic properties on the National Register or eligible for inclusion
on the National Register during the Section 106 process.
3a. Can you provide us with more information on the definition of a
``historic property'' and what types of properties this includes?
Answer. For Purposes of Section 106 a historic property is defined
as one that is listed on or eligible for listing on the National
Register of Historic Places.
Congress directed the Department of the Interior/National Park
Service in the 1966 National Historic Preservation Act to define what
types of sites should be considered historic and hence qualify for
National Register eligibility. NPS did so by establishing criteria to
guide the search for and evaluation of potential sites. Those criteria
are contained in 36 CFR 60.4 (``Criteria for evaluation'') with the
prefatory observation that ``these criteria are worded in a manner to
provide for a wide diversity of resources.''
36 CFR 60.4 establishes two requirements a site must meet. (The
italics in this section is added for emphasis.)
First a site must be ``significant'' in American history,
architecture, archeology, engineering, and culture . . .''
Second a site must ``possess integrity of location, design,
setting, materials, workmanship, feeling, and association. . .''
The rules proceed to further define significant sites as those
sites that:
a. Are associated with events that have made a significant
contribution to the broad patterns of our history; or
b. that are associated with the lives of persons significant in
our past; or
c. that embody the distinctive characteristics of a type, period,
or method of construction, or that represent the work of a
master, or that possess high artistic values, or that
represent a significant and distinguishable entity whose
components may lack individual distinction; or
d. that have yielded, or may be likely to yield, information
important in prehistory or history.
Next the rules provide guidance on how to apply the criteria,
specifically advising that certain classes of property that may
otherwise qualify should not be considered eligible. It advises that
ordinarily the following types of sites will not be considered
eligible:
cemeteries, birthplaces, or graves of historical figures,
properties owned by religious institutions or used for
religious purposes,
structures that have been moved from their original
locations,
reconstructed historic buildings, properties primarily
commemorative in nature, and
properties that have achieved significance within the past
50 years shall not be considered eligible for the National
Register.
Finally, the concluding paragraphs of 36 CFR 60.4 provides guidance
on how to exempt from exemptions. In other words, the circumstances
under which one of the exempted types might qualify. (e.g. ``A
religious property deriving primary significance from architectural or
artistic distinction or historical importance.'')
When taken as a whole the NPS rules cast a broad net. The intent
was to make historic designation common place.
3b. Has this definition or the National Park Service's
interpretation of it changed over time, and are you aware of any
concerns or controversy surrounding this definition?
Answer. The National Park Service, the agency charged with historic
preservation took the position, until the mid-1950s that Federal
recognition as being historic should be reserved for sites that were
clearly associated with events or people of national importance and
which had high levels of physical integrity. It changed its position in
1956/57 and the language cited above (i.e. significance, integrity and
the ``a''-``d'' list) began to appear in NPS publications.\24\
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\24\ ``The Registry of National Historic Landmarks,'' (United
States Department of the Interior/National Park Service, Int. Duo. 60-
83005).
The National Historic Preservation Act provided for the creation of
A National Register of Historic Places and as noted above delegated to
the Department of the Interior the task of developing criteria for
eligibility. A NPS staff committee meeting in 1966/1967 essentially
imported the existing NPS definitions removing references to national
---------------------------------------------------------------------------
importance or national significance.
While the basic concept for the Register and the criteria for
eligibility have remained largely unchanged over the life of the Act,
significant modifications in background assumptions have occurred.
Process has been altered: First and most fundamental, the
process by which a site was recognized as historic and
gained protection through Section 106 has been greatly
altered. During the 1950s, early 1960s and first months
after passage of the NHPA criteria were considered a
screening tool that guided in the identification of
potentially eligible sites. Actual designation as historic
came with government action taken after several levels of
evaluation and scrutiny. No one assumed that all eligible
sites would be or should be placed on the Register. The
assumption was that screening would take place at both the
state and Federal level and the Secretary of the Interior
would designate those that survived. Put differently,
meeting the NPS criteria allowed a site to be considered
for, but did not guarantee, eligibility for Federal
designation.
When budget cuts in the late 1960s postponed the surveys that
were to identify sites that met the NPS criteria and from
which the National Register nominations could be drawn,
Park Service and Advisory Council Staff devised a temporary
solution that considered for purposes of Section 106 sites
that merely met the criteria as eligible. This temporary
solution became fixed in law with the 1976 amendments to
the Act.
The new approach, because it assumed National Register status to
result from a site merely meeting the criteria rather than
a discrete government act of recognition altered Section
106 practice. Under the initial concept an agency knew
where historic sites were to be encountered and engaged
Section 106 only when a designated site could not be
avoided. Under the revised approach the agency had no way
of knowing where historic sites were located and hence had
to engage Section 106 and the Advisory Council/SHPO/THPO
for most of its undertakings. This change more than any
other alteration increased the burden of compliance.
Selection process degraded: Second the rigor of the
selection process has been much degraded. As noted above
NPS advises in its current rules that they should be
interpreted to create a large number and range of sites.
This stands in sharp contrast to its early instructions to
``apply the criteria strictly . . ..'' This shift has
resulted in a much-debased process for determining
eligibility, particularly when the eligibility is
determined during the Section 106 process, of which more
will be said in the response to Question 4. Thomas King, a
former Advisory Council employee and well-known cultural
resources management consultant, captured the substance of
the shift in his 2002 book observing ``there's no
requirement for any particular level of documentation in
order to consider a property eligible; the consulting
parties [the SHPO and the Agency in most instances], if
they agree can just do it, and in most cases, it's better
all-around to make the assumption and get on with figuring
out how to manage the place.'' \25\
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\25\ Thomas F. King, Thinking about Cultural Resource Management:
Essays from the Edge (Walnut Creek, CA: AltaMira Press, 2002), 23-24.
New Classes of sites created: Third, NPS and pressure
groups have effectively redefined the types of sites
eligible. For example, new categories such as ``Traditional
Cultural Properties,'' ``Cultural Landscapes,'' and
``Traditional Cultural Landscapes'' have emerged from ACHP
and NPS documents.\26\
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\26\ See Advisory Council on Historic Preservation, ``Native
American Traditional Cultural Landscapes and the Section 106 Review
Process: Questions and Answers,'' (Accessed at http://www.achp.gov/
natl-qa.pdf). Charles A. Birnbaum, ``Preservation Brief #36 Protecting
Cultural Landscapes, Planning, Treatment and Management of Historic
Landscapes'' (National Park Service) (Accessed at https://www.nps.gov/
tps/how-to-preserve/briefs/36-cultural-landscapes.htm).
Loosening of Standards: Fourth, probably the most
significant change in the National Register itself has
resulted from a general expansion of the meaning of
criteria ``a'' and ``c'' (see above) to include what may be
described as the inconsequential. One of the best examples
is the recent (2014) inclusion on the National Register of
the ``Nutty Narrows'' Squirrel Bridge in Longview,
Washington. The listing of the structure, initially created
in 1963 by stretching a fire hose across Olympia Way to
allow squirrels to cross a busy street, was hailed in the
local press saying it had ``joined the ranks of Frank Lloyd
Wright homes and the Empire State Building.'' \27\
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\27\ Brooks Johnson, ``Longview's Nutty Narrows bridge makes
National Register of Historic Places,'' The Daily News, December 9,
2014. (Accessed at http://tdn.com/news/local/longview-s-nutty-narrows-
bridge-makes-national-register-of-historic / article_44cf5252-7fe6-
11e4-90d4-033eb 00e1793.html).
One of the more interesting conversations I listened in to while
serving as State Historic Preservation Officer occurred in
early March 2001. Over the course of 2 days State Historic
Preservation Offices around the country tried to outdo each
other in a contest to claim the most unusual sites they had
listed in the National Register. The candidates included a
``bat cave'' in Texas, cellars in Virginia and West
Virginia, the ``Garden of Eden'' in Kansas complete (with
concrete folk art and the body of the man who created the
art), the sod from an Oklahoma field, a monument to the
boll weevil in Alabama, the house of an ax murder in Iowa,
and a full-scale replica of Stonehenge in Washington State
and the Parthenon in Nashville Tennessee (both made of
concrete).\28\
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\28\ Cathy Ambler, e-mail to NCSHPO Listserv Re: unusual listings
mailing list, March 7, 2001, http://[email protected] (Accessed March 7,
2001).
When squirrel bridges and replicas of Stonehenge are placed in
the same category as Frank Lloyd Wright houses there is
probably good reason to revisit the National Register
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criteria and perhaps the entire concept.
3c. Are you aware of any concerns or controversy surrounding this
definition?
Answer. I am not aware of any organized movement to alter the
current definition of historic site. However, there has been occasional
suggestions over the years that the concept of a National Register be
modified or abandoned. One discussion thread on the American Cultural
Resources Association website some years ago for example concluded that
it was an anachronism. More recently there have been some voices
suggesting that history be dropped from preservation. For example,
Donovan Rypkema, one of preservation's most vocal advocates. told the
National Trust meeting in 2009 that ``The rest of the English-speaking
world does not have historic preservation. They have building
conservation, or more broadly and appropriately, heritage conservation
. . . we may need to rename it . . ..\29\
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\29\ Vince Michael, ``On History, Preservation, Planning and
More,'' Time Tells (blog post October 2009) (Accessed at http://
vincemichael.wordpress.com/2009/10/17/heritage-conservation-not-
historic-preservation/).
Critics seem to want to decouple Section 106's protections from
National Register eligibility. Often congregated under the ``Place
Matters'' banner, they prefer a Section 106 process triggered by the
needs of the current setting and the loosely defined concept of
heritage conservation rather than strong links to the past. History in
their view is a lifestyle choice. As Paul Goldberger, an architecture
critic, observed there is a notion that modern preservation, ``is not
using the building to teach us certain lessons about the way life used
to be, but turning the building into an instrument that helps us live
life the way we want to now.'' \30\
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\30\ Paul Goldberger, ``The Changing Goals of Preservation'' The
New York Times, October 9, 1980, p. c 1.
William Schmickle in his 2008 book The Politics of Historic
Districts captured the attitude that lies behind the move to exorcize
history from preservation. He advised his readers to accept the fact
that historic districts that ``are designated for any number of
economic and social advantages may in fact have little to do with
genuine preservation.'' To underscore the point, he continued
``sometimes it's just preservation as decoration. Other times it is not
even that.'' \31\
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\31\ William E. Schmickle, The Politics of Historic Districts: A
Primer for Grassroots Preservation (Lanham, MD: AltaMira Press, 2007).
9. David Hamer, History in Urban Places: The Historic Districts of the
United States (Columbus: Ohio State University Press, 1998). p ix.
Hamer wrote ``A phrase I have heard repeatedly when I explained to
historians and preservationists the nature of the inquiry on which I
have been engaged is, ``But history has very little to do with it.''
The part of the preservation movement Rypkema, and Schmickle speak
for essentially believe that it is no longer essential for old
buildings to have links to historic events or teach lessons--they
should be seen as devices that allowed for a particular lifestyle or
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aesthetic.
Question 4. In your testimony, you note each Federal agency's
responsibility under Section 106 of the National Historic Preservation
Act to identify sites included on or eligible to be included on the
National Register.
4a. How do agencies proceed to identify all of these properties,
and what kind of efforts does that entail?
Answer. Agencies differ in the particulars of how they go about
identifying historic sites. In general, they consult existing records
(i.e. the published National Register, state and tribal databases,
previous Section 106 research that has taken place in the area of the
undertaking, and such published sources as may be appropriate); conduct
field surveys (i.e. actually visit the area and in some instances, do
``archeological tests''); and invite consulting party comment that
often sheds light on the location of sites.
It may be useful to break the remainder of the answer to this
question into two sections--the approach, or way the agency organizes
its efforts to identify sites the steps it takes once identification is
made.
Organizing the effort: In general, there are two
approaches--one relies on agency staff to perform the
actual research work, the other relies on contractors or
licensees/permittees to do the actual research under the
supervision of agency staff. No matter which approach is
used, the agency (not its licensees/permittees) is in the
end responsible for compliance with Section 106.
Section 306109 of the National Historic Preservation Act
authorizes agencies to expend funds for ``preservation
activities'' and allows ``reasonable costs to be charged to
licensees and permittees as a condition of issuance of the
license or permit. Expenses usually include the cost of
doing the research, preparing forms, managing consulting
party input, mitigation, and increasingly the fees tribes
charge for commenting.
While some land managing agencies have preservation staffs to do
much of the research Section 106 requires, most agencies
contract for or require entities seeking licenses or
permits to undertake the research to identify sites and
engage consulting parties.
Agencies usually do not publish their compliance costs (or
timelines), however by marrying two sets of public data it
is possible to estimate cost and effort with some degree of
accuracy. The American Cultural Resources Association, the
association that represents the contractors, estimated in
2012 that its income from work required by the National
Historic Preservation Act was over a billion dollars.\32\
Since SHPOs reported to NPS that they issued 120,109
findings that year it appears that contract cost alone
averaged about $8,300 per undertaking.\33\ Add to that
mitigation costs, tribal consulting fees, and internal
agency costs and it seems likely that on the average
Section 106 costs for agencies or their licensees/
permittees is between $15,000 and $20,000 per Section 106
case.
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\32\ The data cited here appeared on the American Cultural
Resources Association website in 2012 and 2013. That cite has been
changed since, but hard copies of the screen have been preserved in
Amos Loveday's files. The same information also appears in other
places. For example, see Donn R. Grenda, Ph.D., Michael Heilen, Ph.D.,
Teresita Majewski, Ph.D., Characterizing the U.S. Cultural Heritage
Management Industry with Independently Collected and Analyzed Data,
Paper presented at the European Association of Archaeologists 19th
Annual Meeting, Pilsen, Czech Republic, 2013, particularly slides 8-11.
Marion Werkheiser, ``The CRM Industry in the Age of Trump.'' ACRA
Webinar Presentation 11/28/2016 (Accessed at http://www.acra crm.org/
resources/Pictures/WebinarTranscript_11_28_2016.pdf.
\33\ National Park Service, ``Historic Preservation Fund Review and
Compliance Program Area FY2012 Products Undated January 2014,'' p. 2.
This estimate does not include delay, lost opportunity, or legal
costs the Section 106 process can impose. In fact,
licensees/permittees often point to these as the most
burdensome expenses. For example. in the case of the
Lincoln Place apartments discussed elsewhere in this
response, the owner testified he had spent over $500,000 in
defending against preservation suits in 7 months.\34\
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\34\ ACHP ``Oversight Hearings.'' See Subcommittee on National
Parks, Recreation, and Public Lands of the Committee on Resources, U.S.
House of Representatives, One Hundred Eighty Congress First Session
June 3, 2003, ``Reauthorization of the Advisory Council on Historic
Preservation and Private Property Protection under the National
Historic Preservation Act,'' PP. 23.
As I observed in my oral testimony contract cost for Section 106
studies alone exceeds the combined budgets of The National
Archives, The National Endowment for the Humanities, The
National Endowment for the Arts, and the Institute of
Museum and Library Services--or put differently it is
greater than the Smithsonian Institution's budget and
roughly equal to 40 percent of the National Park Service's
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Federal appropriation.
Congress should compare the value of these programs with that of
historic preservation.
Consultation with the SHPO/THPO/ACHP: Once the agency's
research is completed it makes a determination as to the
presence or absence of historic sites and the potential
impact the undertaking will have on such sites as may be
present.\35\ It then provides that research, along with its
determinations, to the State Historic Preservation Officer
(or Tribal Preservation Officer if the undertaking is on
Tribal Lands) for review. If the agency and the SHPO/THPO
concur and there are no adverse effects the undertaking can
proceed based on written confirmation (``the SHPO letter)
from the SHPO/THPO. If the they concur that there is an
adverse effect then a Memorandum of Agreement spelling out
steps the agency will take to mitigate those effects is
created and ACHP is given an opportunity to comment. If the
Agency and the SHPO/THPO do not agree on the effects or
mitigation steps either party may ask the ACHP to
participate. Once all parties agree the undertaking can
proceed.
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\35\ For a more detailed description see NPS, ``Historic
Preservation Fund Grant Manual,'' Chapters 5 & 6. (Accessed at https://
www.nps.gov/preservation-grants/hpf_manual.pdf).
If, in the final step the Agency and ACHP do not agree, the
Agency must take into account ACHP comments before
proceeding.\36\ Involving ACHP usually adds substantially
to the time and effort needed to complete the Section 106
process.
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\36\ These steps are described more completely in 36 CFR 800.3
through 36 CFR 800.7.
4b. How long can the Section 106 consultation process take for
---------------------------------------------------------------------------
these agencies?
Answer. The length of time to complete the process varies depending
on the size and complexity of the undertaking and whether or not the
undertaking will have an adverse effect. In so far as I know there are
no studies that can provide comprehensive statistics on the time
required. In my experience, few Section 106 cases are completed in less
than 3 months and it is not unusual for them to take three times that
long.
The Wireless industry indicated in a recent filing with the FCC
that the average time for tribal consultation, only one part of the
process, was 110 days.\37\ I am aware of one unresolved Section 106
case (the Hopewell Tower) at the FCC that goes back to 1987 and I have
worked on several that required more than a year to complete.
---------------------------------------------------------------------------
\37\ ``Joint Comments of CTIA and the Wireless Infrastructure
Association in the Matter of Acceleration Wireless Broad Band
Deployment by Removing Barriers to Infrastructure Investment, WT Docket
No. 17-79,'' July 17, 2017, p. 4.
If an adverse effect is found the timeline is extended depending on
the nature of the effect and the complexity of the consultations
required to find a mitigation strategy. My experience is that an
---------------------------------------------------------------------------
adverse effect adds at least 3 months and in many instances far more.
4c. What kind of difficulties might any delay in the Section 106
process cause for project proponents hoping to get a permit or have
their project approved?
Answer. While several difficulties can arise three are most common.
Delayed comments: The most common delay occurs when
consulting parties opposed to the undertaking manipulate
either the ACHP or agency rules (or both) to create
procedural delays. This occurs frequently with tribes, many
of whom have difficulty meeting the standard 30-day
deadlines built into the process, or who insist that the
agency/ applicant provided special information or employee
tribal members to gather information.
Restarting the clock: Another common delaying tactic is
often referred to as ``restarting the clock.'' Several ACHP
rules as well as provisions in programmatic agreements set
deadlines. But these take effect only when the agency or
its licensee/permittee has provided all the information. It
is not uncommon for SHPO/THPOs to restart the 30-day clock
by asking for additional information.
Workloads: Workload issues in SHPO/THPO and even agency
preservation offices can and often do cause delays. The
THPO offices in particular are underfunded and large
undertakings like pipelines can overwhelm them.
While the foregoing descriptions are of specific difficulties that
can cause delay, four other general impediments deserve mention.
General complexity: The maddeningly intricate nature of
the Federal preservation system is a source of chronic
regulatory constipation. For example, ACHP rules and
guidance often borders on the unintelligible as its July 6,
2001 guidance Memorandum on Tribal fees and definition of
adverse effect (36 CFR 800.5) aptly shows.\38\ While there
is a long back story to how and why these rules have
become, in the words of one Washington Attorney an arcane
area of regulation, the fact is the Federal preservation
program often leaves even those who value historic sites
bewildered.\39\ This introduces inefficiencies. No better
example can be pointed to than the ``Twilight Tower'' issue
that has bedogged both the FCC and ACHP for the better part
of a decade. Opening these towers for colocation would
reduce the need for new structures and hence serve
preservation interests, improve wireless service, and free
scarce resources. Even with such clear benefits obvious the
Federal preservation system has not countenanced
resolution.
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\38\ John Fowler, Executive Director Advisory Council on Historic
Preservation, ``Fees in the Section 106 Process,'' July 6, 2001.
(Accessed at http://www.achp.gov/feesin106.pdf).
\39\ Donald J. Kochan, ``National Historic Preservation Act
Initiatives Affecting the Natural Resources Industry,'' Energy &
Mineral Law Institute 22, no. 12 (2002), 408.
Inefficient organization: Inefficient organization of the
Federal preservation program is an overarching problem. The
division of responsibility between the Park Service and the
Advisory Council is a case in point. The Council has no
direct management authority over the State and Tribal
Preservation Offices that do much of the Section 106 review
work the Council and agencies rely on. The state and tribal
offices are funded through a Historic Preservation Fund
grant administered by the National Park Service and in so
far as there is a reporting and evaluation relationship it
is with NPS not ACHP.\40\ Without more direct influence,
managing delays, dealing with the idiosyncrasies of the 57
state and 157 tribal preservation offices, or detecting
misuses of the 106 process is tricky at best.\41\
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\40\ For description of the Historic Preservation Grant program see
Historic Preservation Fund--Brief overview, NCSHPO website http://
ncshpo.org/issues/historic-preservation-fund/. A more complete
description can be found at the NPS website https://www.nps.gov/
preservation-grants/HPF_Manual.pdf.
\41\ The Federal Government through grants from the Historic
Preservation Fund provided about half the funding for State Historic
Preservation Offices and all the funding for Tribal Preservation
Offices. That funding supports several programs--Review and Compliance
(Section 106), Inventory and survey, local government grants, tax
credit programs, etc. For an overview of funding see the web pages for
the two professional associations--National Conference for State
Historic Preservation Officers, and the National Association of Tribal
Historic Preservation Officers. http://ncshpo.org/issues/historic-
preservation-fund/, http://ncshpo.org/resources/, http://nathpo.org/wp/
resources/. For a more detailed description program see NPS, ``Historic
Preservation Fund Grant Manual,'' https://www.nps.gov/preservation-
grants/hpf_manual.pdf.
Conflicting agendas: The Federal preservation system and
Section 106 in particular is a tangle of agendas. For
example, there are basic and conflicting differences in
preservationists' understandings of Section 106's purposes.
Richard Moe the immediate past President of the National
Trust described Section 106 of the National Historic
Preservation Act as ``entirely procedural'' in the
introduction to Section 106 of the National Historic
Preservation Act: Back to the Basics and went on to say
that ``In no sense does the law mandate preservation as an
outcome.'' A few pages later in the same book Section 106
is described, however, as ``a thumb on the preservation
side of the scales.'' \42\ Which is it? A neutral procedure
designed to balance competing policy objectives or a thumb
on the scales that stealthily favors one policy over the
other?
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\42\ Lisa E. Barras, ``Part 1,'' in Section 106 of the National
Historic Preservation Act Back to the Basics (Washington, D.C.:
National Trust for Historic Preservation, 2010), PP ii-iii, 29.
(Accessed September 27, 2010 http://www.preservationnation.org/
resources/legal-resources/additional-resources/Back-to-Basics-
Summary.pdf).
Similarly, there are differences over the fee matter discussed in
the answers to the other questions. ACHP seems to believe
that fees are necessary to facilitate tribal participation.
Some (we don't know how many) tribes and NPS on the other
hand see fees as a way of generating general income.\43\
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\43\ Delaware Tribal Court, The Delaware Tribe of Indians v.
Jenifer Pechonick, Defendant Case No. CIV-15-001 P. 3; (Accessed at
http://delawaretribe.org/wp-content/uploads/150721-CIV-15-001-Rev-
Order.pdf). Tribal Council of the Delaware Tribe of Indians, ``A
Resolution of the Tribal Council of the Delaware Tribe of Indians to
Adopt an Investment Plan for the (THPO) Historic Preservation Section
106 Consultation Fees for One Year, Resolution 2016-23,'' March 15,
2016 (Accessed at http://delawaretribe.org/wp-content/uploads/Res-2016-
23.pdf).
Lack of evaluation: There is little ongoing evaluation of
Section 106 even though it widely understood to be misused.
NPS collects data (annually) on both THPO and SHPO
performances but it is not used to evaluate that
performance in any meaningful way. For example, NPS data
shows a striking difference among SHPOs in the percentage
of undertakings that are determined to have an effect even
when state size, level of Federal spending, and history are
taken into account. (e.g. differences between Ohio and
Illinois). These differences are curious indeed since all
SHPOs should be applying the same criteria. To site another
example, no one seem to take notice of the fact (even
though the data was in NPS files) that over the 9-year
period for which data exists two tribes issued 66,232
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determinations but found only 4 to be adverse.
While it would be an exaggeration to describe Federal preservation
as dysfunctional it clearly has problems that are apparent even to
supporters. In 2011 Preservation Action, in conjunction with the
Conference of State Historic Preservation Officers, the National Trust
for Historic Preservation, and the National Alliance of Preservation
Commissions issued ``Recommendations to Increase the Effectiveness of
the Federal Preservation Program'' that surveyed preservationist on
several questions.\44\ The following table from the Report, which
summarizes their responses, reveals that preservationist themselves had
concerns about the performance of the Federal program.
---------------------------------------------------------------------------
\44\ Preservation Action, the Conference of State Historic
Preservation Officer, the National Trust for Historic Preservation and
the National Alliance of Preservation Commissions (Federal Historic
Preservation Program Task Force), ``Aligned for Success Recommendations
to Increase the Effectiveness of the Federal Preservation Program,''
summer 2011. (Accessed at http://www.preservationaction.org / wp-
content / uploads / 2013 / 01 / FederalHistoricPreservationProgram
TaskForce-FinalReport-AlignedForSuccess-2011.pdf).
[GRAPHIC] [TIFF OMITTED] T6387.002
.epsQuestion 5. In your testimony, you note that private industry
as well as Federal, state, and local governments must spend money on
``investigations'' in order to ensure that they are meeting their
obligations under the National Historic Preservation Act as well as
---------------------------------------------------------------------------
related laws and regulations.
Answer. As background, the Advisory Council on Historic
Preservation's rules contained in 36 CFR 800 and related policies
require an agency to determine if an undertaking will affect sites
listed in or eligible for listing in the National Register of Historic
Places before authorizing the undertaking. While ACHP does not
explicitly require studies the information it needs and the steps its
process mandates, such as public input, essentially forces a study to
be conducted before each Federal undertaking that has the potential to
effect National Register sites.
As a part of the process agencies and their licensees/permittee are
required to consult with State and Tribal Historic Preservation
Officers, who in turn report to the national Park Service on the number
of Section 106 cases reviewed and their findings (i.e. weather not the
undertaking has an effect on historic sites). These reports offer a
window into the Section 106 process that reveals the following:
In the years between 2004 and 2014 State Preservation
officers reported an annual average of 115,773 cases.
Section 106 studies seldom find an adverse effect. For
example, the National Park service reported to Congress in
2012 that only 2 percent of the SHPO findings were
adverse.\45\ Figures from Tribal Preservation Offices
between 2006 and 2014 show that they have a 3.5 percent
average adverse effect determination.\46\
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\45\ Kristina Alexander, A Section 106 Review Under the National
Historic Preservation Act (NHPA): How it Works. (Congressional Research
Service, May 16, 2012) P. 3.
\46\ Figures taken from annual reports between 2006 and 2014, for
sample see National Park Service, THPO FY2014 Review & Compliance
Updated February 23, 2016. Historic Preservation Fund, THPO Section 106
Review FY2014 Product.
Nor do theses Section 106 studies lead to listing of sites
in the National Register. For example, even though the
SHPOs reported 102,900 Section 106 cases in 2014 only 1,030
new sites were added to the Register, many of which came
through the tax credit program, not Section 106
surveys.\47\
---------------------------------------------------------------------------
\47\ National Park Service, ``2014 The Historic Preservation Fund
Annual Report,'' p. 3. (Accessed at http://
xoxyohh9fh753j91bj7hl15l.wpengine.netdna-cdn.com/wp-content/uploads/
2016/08/2014-Historic-Annual-Report_Web.pdf).
The ubiquity of Section 106, the infrequency with which it finds
adverse effects, the costs, and its inability to produce for the
National Register should be kept in mind while reading the answers to
the following questions. As Section 106 has evolved it serves neither
---------------------------------------------------------------------------
preservation no those it regulates effectively.
5a. What kind of services are they paying for as part of these
investigations?
Answer. Typically, agencies and their licensees/permittee have six
types of expenses.
Internal costs: Many agencies employee staff specifically
to undertake or manage Section 106 preservation
activities.\48\ This staff is a valid expenditure under
section 306102 of the NHPA and hence funded by Federal
appropriations. In most instances, this staff serves as
manager of the agency's Section 106 compliance, including
the coordination and review of contractors' work, training
in agency rules, and dealing with preservation
constituents.
---------------------------------------------------------------------------
\48\ ``National Historic Preservation Act as amended through
December 16, 2016 and Codified in Title 54 of the United States Code,''
Sec. 306102 ``Preservation program.''
To my knowledge there are no studies of how much staff and their
office functions cost. It is worth noting that past
congressional reports on the cost of the Federal
preservation programs have not included this or indeed any
of the other cost discussed below.\49\
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\49\ For example, see Susan Boren, Historic Preservation:
Background and Funding, CRS Report for Congress, Order Code 96-123 EPW
Updated August 26, 2005, CRS-6.
Contract costs: Agencies and their licensees/permittees
frequently hire contractors, often referred to as CRM
(Cultural Resource Management) firms to do parts of the 106
processes. The American Cultural Resources Association, the
trade group that represents CRM firms estimated in 2012, as
already noted, that these firms ``generate'' over a billion
dollars annually carrying out investigations that allowed
organizations ``to meet their legal obligations under the
National Historic Preservation Act and related laws and
regulations.'' The same source estimated there were ``about
1,300 CRM firms nationwide,'' employing some 10,000
people.\50\
---------------------------------------------------------------------------
\50\ The data cited here appeared on the ACRA website in 2012.
Other than this study, I am unaware of any general estimate of
the cost of contracting. Some agencies such as the FCC,
which estimated the cost of filling out its preservation
paperwork to be $13,087,425 in 2013, do offer some more
detailed insights into costs.\51\
---------------------------------------------------------------------------
\51\ ``FR Doc. 2014-10768 Filed 05/09/2014 at 8:45 am; publication
date 5/12/2014.''
Fees: Increasingly agencies and their licensees/permittees
are being forced to pay tribes to participate in the
Section 106 process. The practice originated with a July 6,
2001 Advisory Council ``Guidance Memorandum'' and has been
largely limited to FCC undertakings so far.\52\ ACHP
however has been actively exploring ways to ``encourage''
other agencies to pay tribal fees and too extend the
practice to state preservation offices.\53\
---------------------------------------------------------------------------
\52\ Executive Director to Federal Preservation officers, Tribal
Historic Preservation Officers. State Historic Preservation Officers.
Indian Tribes, ``Fees in the Section 106 Process,'' July 6, 2001.
(Accessed at http://www.achp.gov/feesin106.pdf).
\53\ ``Advisory Council on Historic Preservation Summer Business
Meeting, Washington, DC, July 20, 2017,'' pp. 5-6.
The tribal fee issue is central to a pending rulemaking at the
FCC. Documents filed as a part of that proceeding go into
the practice in more detail.\54\
---------------------------------------------------------------------------
\54\ See ``Joint Comments of CTIA and the Wireless Infrastructure
Association in the Matter of Acceleration Wireless Broad Band
Deployment by Removing Barriers to Infrastructure Investment, WT Docket
No. 17-79,'' July 17, 2017.
Mitigation costs: If an ``adverse effect'' is found the
agency or its licensees/permittees must mitigate those
effects. In my experience mitigation costs are in the
$10,000 range for communications towers with only visual
effects on eligible properties. Costs rise from that level.
An agreement in the Positive Train Control Case (2014)
required a $10 million mitigation fund and a recent
mitigation settlement involving Dominion Virginia Power was
for $91 million.\55\
---------------------------------------------------------------------------
\55\ ``Memorandum of Understanding Between the Federal
Communications Commission and the BNSH Railway company'' dated 5/16/14,
p. 3. (Accessed at https://apps.fcc.gov/edocs_public/attachmatch/DOC-
327138A1.pdf). Dave Ress, Agreement clears the way for Corps decision
on power line, Virginia Gazette, May 10, 2017 (http://
www.vagazette.com/news/local/dp-nws-skiffes-moa-vg-version-20170510-
story.html).
As with the other costs agencies do not keep records that allow
for a definitive accounting but clearly mitigation costs
are increasing and in individual cases they can be a
---------------------------------------------------------------------------
significant part of an undertaking's budget.
Tribal monitoring costs: Tribes sometimes demands an
agency or Federal licensee/permittee to employee tribal
monitors. For example, tribal monitoring fees cost, a
Laurence County, Pennsylvania emergency communication tower
$30,000. As noted in the response to an earlier question
monitoring fees can be large and controversial.\56\
---------------------------------------------------------------------------
\56\ Eric Poole, ``Poor dirt, artifacts possibilities, inflate cell
tower cost,'' Elwood City Ledger, August 10, 2016.
Bad recordkeeping: As a general observation, costs
associated with studies could be greatly reduced if the
agencies met their recordkeeping responsibility under the
---------------------------------------------------------------------------
act and if SHPO/THPOs insisted on accurate research.
o Agencies: Section 306131(a)(c) of the NHPA
requires that agencies ensure that ``records and other data,
including data produced by historical research and
archeological surveys and excavations, are permanently
maintained in appropriate databases and made available to
potential users pursuant to such regulations as the Secretary
shall promulgate.'' Agencies do not do a good job of preserving
research, making previous research available, or insuring its
validity. As a consequence, research for ``undertakings'' too
often must duplicate earlier efforts or work done for other
agencies. A 2008 Advisory Council report noted the problem and
observed for example, ``The ACHP notes that methodologies and
data systems for collecting such information [about historic
sites] continue to vary from agency to agency, and the quality
and completeness of data reported remain highly variable.''
\57\
---------------------------------------------------------------------------
\57\ The Advisory Council on Historic Preservation, In the Spirit
of Stewardship: a Report on Federal Historic Property Management, (The
Advisory Council on Historic Preservation, Feb. 15, 2009) P. 82
(Accessed at http://www.achp.gov/docs/Section3%20Report2-24-
09FINAL.pdf). GAO came to a similar conclusion in 2012. See GAO,
Federal Real Property Improved Data Needed to Strategically Manage
Historic Buildings, Address Multiple Challenges (GAO, December 2012),
section ``What GAO Found'' ``GAO recommended improvements to the FRPP
database to enhance its consistency, completeness, and usefulness in
Federal decision making. Such improvements are also necessary to
increase the consistency and completeness of historic-building data in
the FRPP.'' (Accessed at http://www.gao.gov/assets/660/650745.pdf).
o SHPO/THPO records: State and Tribal Historic
Preservation Offices are also required to keep databases as a
part of their Historic Preservation Fund grant.\58\ Their
databases are also seriously flawed. For example, NPS
``politically'' observes on its web page that ``the depth of
information available varies from state to state . . .''
Variable indeed, at least 15 State Historic Preservation Office
websites or research instruction handouts carry disclaimers
about the accuracy of the data in their files.\59\ The variable
quality of state and tribal databases essentially means they
are unreliable and in many instances Section 106 research must
start from scratch. One writer on the American Cultural
Resources Association ``list serve'' cynically commented on the
system when he observed to his fellows in January 2002 ``the
present system . . . requires us to produce garbage documents
for agencies which hold the resources in contempt and think
even less of the law.'' \60\ While there has been some
improvement since 2002 the fact remains that both agency and
SHPO/THPO databases are marginal at base--this after billions
of dollars have been spent over the past 50 years on Section
106 research.
---------------------------------------------------------------------------
\58\ National Park Service, The Historic Preservation Fund Grant
Manual 2016, Chapter 6, p. 36. ``Inventory Data Resulting from Section
106 Activities must be Incorporated into the State's Inventory
Information System or cross-referenced with the files. This will reduce
or eliminate the need for resurvey, and provide data which can be
useful for planning and future activities in all program areas.''
\59\ For example, the Delaware SHPO advises people seeking
authorization to use its database that ``The use of any of this
information is at your own risk. The Division of Historical and
Cultural Affairs does not assume any legal responsibility for the
information contained herein, which is provided `as is' with no
warranties of any kind.'' Delaware Division of Historical and Cultural
Affairs, ``Application From for user account on the Cultural and
Historical Resources Information System.'' The Main SHPO advises ``No
guarantee, inferred or explicit is made regarding the accuracy of the
survey information, addresses, locations on the maps, or eligibility
assessments. Many of the surveyed properties in CARMA may have
incomplete or missing addresses. The absence of a survey form for a
specific property is no indicator of whether or not a property has been
recorded or documented by the Commission.'' Cultural & Architectural
Resource Management Archive (CARMA) Map Viewer, Site Information and
Disclaimer http://www.state.me.us/mhpc/carma_disclaimer.html.
\60\ Mark Campbell, e-mail message to [email protected],
January 19, 2002 16:23:02.
5b. Does this impose any hardship on smaller businesses or
localities that have limited funding but that must work with the
---------------------------------------------------------------------------
Federal agencies as part of the Section 106 process?
Answer. I have no direct evidence of Section 106's financial impact
on small businesses. In my experience, the most common hardship arises
from the entanglement of Federal and local preservation rules. Ms.
Patty Brandt, a fellow witness, discussed this issue in some detail and
it should be noted that it was at the center of the Subcommittee on
National Parks, Recreation, and Public Lands oversight hearing in 2003.
Hence, the issue is not a new one but ACHP and NPS' failure to
recognize that entanglement occurs persists.
Another common hardship for private property owners and small
business is what I call the ``Shadow Effect'' of Section 106. When
evaluating the effect of an undertaking the agency must identify the
Area of Potential Effect (APE), frequently a geographic area larger
than the parcel on which the undertaking actually occurs. This
effectively extends the reach of a historic site some distance and
subjects the use of other property in the vicinity to the needs of
historic sites and may limit the non-historic property's use. An
example may best explain. A property owner entered into an agreement
with a cellular company to erect a tower on his land. Research
conducted for Section 106 found there to be no historic sites on the
owner's property but a THPO identified ``substantial stone groupings''
on an adjacent property. To avoid costs associated with mitigation the
cellular company abandoned the site. Hence, the presence of a nearby
historic site effectively reduced the value of a non-historic
property.\61\
---------------------------------------------------------------------------
\61\ Brian Hallenbeck, ``Owner of proposed cell tower site can't
question tribe,'' theday.com, March 1, 2016 (Accessed at http://
www.theday.com/article/20160301/BIZ02/160309944).
If the ACHP succeeds in expanding its fee policy to require
agencies to pay for Section 106 consultation and allows SHPOs as well
as tribes to charge, small business and communities will certainly be
impacted. Congress should look closely at such a change. Certainly,
there should be a thorough review of the National Register Criteria,
the definition of adverse effect, the status of the National Register
survey, and the organization of Federal preservation before permitting
---------------------------------------------------------------------------
such a charge.
______
Mr. Westerman. Thank you, Dr. Loveday.
The Chair now recognizes Ms. Brandt for her testimony.
STATEMENT OF PATTY BRANDT, RESIDENT, EASTMORELAND NEIGHBORHOOD,
PORTLAND, OREGON
Ms. Brandt. Mr. Chairman, thank you for inviting me to
testify. I represent an organization called Keep Eastmoreland
Free, which has helped more than 1,000 property owners oppose
the national historic district designation.
I believe that the National Historic Preservation Act is
being abused at a local level, and I ask for your help to
restore its local intent by Congress.
Discussions and decisions about urban density, growth, and
historic preservation are best managed at the local level.
Locally elected officials understand the complexities that each
neighborhood faces. Unfortunately, some residents in Portland,
Oregon are using the NHPA to bypass local process to force
severe restrictions on private property rights.
Under the NHPA, the listing of the neighborhood on the
National Register is intended to be merely honorary. It is not
intended to restrict what homeowners may do to their houses.
Any person or group may nominate a neighborhood for national
historic district listing.
To prevent listing, a majority (50 percent plus 1) of the
homeowners must sign notarized letters of objection. Those
homeowners, who are unwilling or unable to sign notarized
letters, are deemed to consent to the listing. This assumed
consent system is undemocratic. But it would be harmless if the
listing is only honorific, as intended by Congress.
When you think of historic properties--and I have seen many
this last weekend--you might envision a historic figure's home
or gravesite. But my district of over 2,000 homes is facing
potential historic district designation under the NHPA. If
designated by the National Park Service, local officials in
Oregon will be able to impose restrictions on my neighbors'
abilities to improve, expand, tear down their homes or garages.
About 80 percent of the homes will be expected to permanently
preserve their appearance from the street.
The local processes laid out by Federal law and regulation
have been extremely frustrating. The State Historic
Preservation Office still has not determined how many
homeowners constitute 50 percent. One resident even went to
state court and obtained a temporary stay against the SHPO
because of procedural flaws and the trampling of individual
property rights. That case is pending in state court, and the
question of the 50 percent plus 1 supporting or opposing the
designation is still in limbo.
Even if residents are unable to provide sufficient
opposition to the designation, the National Park Service must
still review the application according to the criteria
contained in Federal regulations. This includes significance in
American history and architecture, among other things. I love
my neighborhood, I have been there 43 years, but I feel that
none of these Federal criteria are met in the Eastmoreland
neighborhood.
Let me explain. The Eastmoreland application includes an
alleged historic period from 1910 to 1961. This wide and rather
modern date range was probably chosen because many of the homes
were built after World War II, yet they possess little, if any,
historic significance.
You should have a picture in front of you of a house in my
neighborhood. This house was built in 1951. Apparently, it is
significant to American history and the historic nature of the
neighborhood. The next house is a friend of mine's house, was
built in 1947, also from the period of alleged historic
significance. And the third, finally, another friend--it is a
great house--was built around 1883. It is the oldest house in
the neighborhood, but the historic district time period
actually excludes homes this old.
To me, this demonstrates the arbitrary nature of these
designations. This simple gerrymandering is to subvert local
planning processes. And we are not alone in Eastmoreland.
Within the last year, three neighborhoods in Portland have
filed or are pursuing historic district designation by the
National Park Service. All of them are conscious efforts to
bypass local planning decisions by moving the decision here,
3,000 miles away, to a Federal agency.
Modest steps should be taken to ensure that the NHPA is not
skewed or abused like this. My testimony goes into specifics,
but the bottom line is that loopholes should be closed and this
program restored to what it was intended to be. Historic
designation should not be a back door to local zoning. The
burden should be placed on those supporting the designation,
rather than those who oppose it. There should be sideboards
placed on the size of historic districts, or a greater
percentage of residents to support the designation.
Thank you very much for the opportunity and the honor to
testify today.
[The prepared statement of Ms. Brandt follows:]
Prepared Statement of Patty Brandt, Resident, Eastmoreland
Neighborhood,Portland, Oregon
My name is Patty Brandt and I represent an organization called Keep
Eastmoreland Free, which helped more than 1,040 property owners oppose
a National Historic District designation of the Eastmoreland
neighborhood in Portland, Oregon. I thank the Subcommittee for holding
this important hearing to examine how the National Historic
Preservation Act is being abused at a local level and identify
potential remedies to restore its original intent by Congress.
background
Portland, Oregon, is growing at a rapid rate--about 111 people move
there each day. The city and state also have landmark urban growth
boundaries that cause us to have regular debates about urban density
and how to accommodate this growth and protect visual and historic
legacies--all while providing affordable housing to working class
individuals and families.
I believe that these discussions and decisions are best managed at
the local level. Locally elected officials understand the complexities
that each neighborhood faces. Unfortunately, some residents are using
the National Historic Preservation Act to bypass these local processes
to force severe restrictions on private property rights and prevent
much needed urban infill.
From the outset, I want to say that our concern is about the local
abuse of the Federal law and we hope to have a positive conversation
with the National Park Service about our situation. That being said, I
do believe that the regulations and statute should be improved to
prevent local manipulation of the program.
designation process
The National Historic Preservation Act created the National
Register of Historic Places, which is overseen by the National Park
Service. This list includes districts, sites, buildings, structures,
and objects worthy of preservation. To be eligible for listing they
must meet certain criteria.
Under Federal law, the listing of a neighborhood on the National
Register of Historic Places is intended to be merely honorary. It is
not intended to restrict what homeowners may do with their houses. Any
person or group may nominate a neighborhood for national historic
district listing. To prevent listing, a majority (50 percent + 1
person) of the homeowners must sign notarized objection letters. In
contrast, all homeowners who are unwilling or unable to sign notarized
objection letters are deemed to consent to the listing. This assumed
consent system is undemocratic, but does no harm if the only effect of
the listing is honorific, as intended by Congress.
Unfortunately, the listing of an Oregon neighborhood as a national
historic district does not end up being merely honorary. In Oregon, any
person or a minority of neighbors may use the national historic
district listing process, including its assumed consent system, to
restrict what all of their neighbors may do with their houses in
perpetuity. This is undemocratic and unfair. The NHPA was never
designed to permit that to happen.
My neighborhood is facing a potential ``historic district''
designation impacting around 2,000 homeowners. If designated by the
National Park Service, this means that local officials will be able to
impose restrictions on neighbors' ability to improve, expand, or tear
down their homes or garages. About 80 percent of the homes will be
expected to permanently preserve their appearance from the street--
hampering or preventing most exterior alterations and redevelopment.
This is how the process unfolded:
Last year, the board of directors of the Eastmoreland Neighborhood
Association, which has no governing authority over Eastmorelanders,
made a unilateral decision to pursue listing the Neighborhood in the
National Register of Historic Places solely as a land use tool to fend
off new development, block density, and preserve the single-family
character of existing and future homes. One board member of the
neighborhood association stated: ``We have reached now for a tool . . .
the historic preservation district, that's an imprecise tool, it was
designed for something else . . . but it is . . . our only option to
slow down . . . it doesn't prevent demolition in some ways . . . but if
you look at neighborhoods that become historic districts, they don't
have our problems.''
In other words, proponents of historic district designation have
acknowledged that the law was intended for other purposes. Take for
example the beloved ``Father of Oregon''--Dr. John McLoughlin. A bronze
statue of him represents Oregon across the street from us here, in the
Capitol Visitors Center. Back home, his gravesite and modest home in
Oregon City are listed on the National Register--as they should be. He
was central to the history of our state. It makes good sense for his
gravesite and home to be preserved as an historic treasure.
But that is not what is happening with my neighborhood. Rather, we
have about 1,700 homes, built in a variety of styles over many decades.
The process could not be more frustrating. Once the neighborhood
association filed the application for listing, it started a process
with the State Historic Preservation Office (SHPO). This process
includes notifying homeowners of the nomination and the process for
submitting objections. From the outset, there were concerns about the
historic nature of the neighborhood, the underlying survey of the area,
and the process. In a February 2016 vote, the majority of neighborhood
residents voted in opposition to the historic district designation. Yet
that same month, the State Advisory Committee on Historic Preservation
rubber-stamped its support of the designation. This Committee is
separate from the SHPO, and advises the SHPO on National Register
nominations. Can you see how the process is already getting
complicated?
Then the SHPO itself had to make a decision based on Federal law.
First and foremost, the SHPO is required to determine whether a
majority of the homeowners object to listing. This means 50 percent of
the homeowners, plus 1 more. The SHPO has had difficulty figuring out
what that number is, even though a mailed poll determined that a
majority of homeowners opposed. The SHPO received at least 1,040
notarized objections by June 30 of this year, which was more than
SHPO's own threshold, and the process should have stopped right then
and there. This process of gauging support is so convoluted that a
resident went to court and obtained a temporary stay against the SHPO,
because of the inherent flaws in its process and the trampling of
individual property rights. His case is pending in state court.
The SHPO sent the National Park Service the historic district
nomination without a recommendation to designate--but only because it
couldn't determine if a majority of residents opposed or supported the
designation. In my mind, the whole process should have stopped there.
If we are unable to prove sufficient opposition to the designation,
the National Park Service still must review the application according
to the criteria contained in Federal regulations developed to implement
the National Historic Preservation Act:
The quality of significance in American history, architecture,
archeology, engineering, and culture is present in districts,
sites, buildings, structures, and objects that possess
integrity of location, design, setting, materials, workmanship,
feeling, and association, and:
A. That are associated with events that have made a
significant contribution to the broad patterns of our history;
or
B. That are associated with the lives of significant persons
in our past; or
C. That embody the distinctive characteristics of a type,
period, or method of construction, or that represent the work
of a master, or that possess high artistic values, or that
represent a significant and distinguishable entity whose
components may lack individual distinction; or
D. That have yielded or may be likely to yield, information
important in history or prehistory.
I love my neighborhood, but not a single one of these criteria is
met in the Eastmoreland neighborhood. The application for designation
includes an alleged ``historic'' period from 1910-1961. This wide date
range was probably chosen because many of the homes were built after
World War II. Yet they possess little, if any, historic significance.
Ironically, the time period for the designation excludes the oldest
house in the neighborhood, which was built in 1882.
This demonstrates the arbitrary nature of these designations and
reveals that they're simple gerrymandering to subvert local planning
decisions.
copycat designations
Within the last year, three neighborhoods in Portland have filed
petitions for historic district designation by the National Park
Service: Eastmoreland, Laurelhurst, and Peacock Lane. Each of these is
clearly and publicly motivated by efforts to curb development,
renovation, or demolition. All are conscious efforts to bypass local
planning decisions by moving the decision 3,000 miles away to a Federal
agency.
possible remedies and reforms
I believe that Congress and the National Park Service can and
should take modest steps to ensure that the National Historic
Preservation Act is not skewed and abused as it is in Oregon. These
actions would include:
Amending the NHPA to extend or alter the 45-day window for
the Secretary of the Interior to make a decision with
respect to a designation. For large ``district''
designations covering hundreds of homes, this time period
is too short for the National Park Service to conduct a
thorough evaluation of the designation criteria;
Amending the NHPA to shift the burden to those property
owners supporting the designation, rather than those
opposing it. In addition, when a historic designation will
impact the rights of property owners, the threshold for
designation should be greater than 50 percent + 1 showing
support. I believe that two-thirds of property owners
within a proposed historic district should have the burden
of showing support in order for the National Park Service
to consider the nomination.
Implementation regulations (36 C.F.R. Sec. 60.1-.15)
should be amended to:
o Allow the National Park Service to consider
whether the nomination is motivated primarily by an effort to
alter local zoning or planning restrictions. After all, these
designations are supposed to be honorary and to benefit--not
punish--property owners.
o Clarify the calculation of a ``majority'' of
landowners and how and when they are counted. The confusion
demonstrated by the SHPO indicates that clarity is warranted.
o Eliminate the requirement of the Keeper of the
National Register to review the nomination and keep it on file
even when a majority of property owners object to the
designation. (36 CFR Sec. 60.6(s)). As currently drafted, it
potentially opens up a perpetual fight amongst landowners to
obtain notarized signatures either supporting or opposing the
designation. The regulations should require the National Park
Service to make one decision at the time of filing, not have an
open-ended process. If a majority of property owners object
before the time of filing, the National Park Service should not
review the petition or keep it on file for future reference.
The petition can and should be re-filed if and when a majority
(or two-thirds as I suggest) of property owners actually and
affirmatively support the designation.
o Limits should be placed on the size of historic
district designations. One thousand homes is excessive. One
option would be for the National Park Service to publish an
Advanced Notice of Proposed Rulemaking to solicit public
comment on potential changes to these regulations.
With only a few changes, the NHPA can be kept from going astray any
further. I hope that you will do so, and soon. Thank you very much for
the opportunity and the honor to testify before you today.
ATTACHMENTS
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Mr. Westerman. Thank you, Ms. Brandt.
The Chair now recognizes Ms. Leiter for her testimony.
STATEMENT OF AMANDA C. LEITER, PROFESSOR, AMERICAN UNIVERSITY,
WASHINGTON COLLEGE OF LAW, WASHINGTON, DC
Ms. Leiter. Chairman Westerman, Ranking Member McEachin,
members of the Subcommittee, thank you for this opportunity to
testify. My name is Amanda Leiter, and I am a Professor at
American University's Washington College of Law. From August
2015 to January 2017, I was a Deputy Assistant Secretary for
Land and Minerals at the U.S. Department of the Interior,
working with DOI's mineral management agencies.
I want to take a step back and address the premise of this
hearing. Laws can always be improved, but I disagree that our
natural resources laws have gone astray. On the contrary, those
laws create an unusually balanced and participatory resource
management regime.
As development and climate pressures mount, agencies must
manage our resources for the benefit of all Americans,
balancing uses like grazing, timber and mineral production,
renewable energy generation, water supply, and preservation of
sacred sites, wildlife, and wilderness. These uses often
conflict. As a result, agencies must manage for multiple use
across all areas, even as they choose which uses to prioritize
in particular areas.
The prioritization decisions are controversial, and must be
made acre by acre and state by state. There is no one-size-
fits-all answer.
The Obama administration worked hard to ensure an inclusive
process that achieved balance among competing demands. To take
just a few examples between 2009 and 2016, DOI issued oil and
gas leases on 31 million new acres on and offshore, approved 60
new renewable energy projects, and protected millions of acres
of public lands on and offshore.
The result is a balanced record of which I am proud: on the
one hand, a variety of protections for special places; on the
other hand, a streamlined permitting process for drilling, and
reduced conflict over mineral development in suitable areas.
These balanced outcomes resulted from the Administration's
commitment to the openness and public involvement required by
the Administrative Procedure Act and the natural resources
laws.
For example, I worked with the Bureau of Land Management to
develop its rule to reduce methane waste from oil and gas
operators. Before I arrived, the Bureau had already conducted
one round of public outreach meetings. While I was there, we
held public and tribal meetings in four states, took dozens of
meetings with companies, trade associations, and NGOs, reviewed
more than 330,000 public comments, and amended the rule in
response to comments received.
I should also emphasize, in my experience, although career
staff at DOI vary in their personal politics, they shared our
commitment to sound decision making and to the sustainable
management of America's public resources.
Unfortunately, the Trump administration and Secretary Zinke
seem to have abandoned this commitment to balance and openness,
in favor of listening only to industry stakeholders. I was
pleased by Secretary Zinke's commitment this morning to keep
public lands public. But a recent Washington Post review of his
calendar revealed that over 2 months this spring, he held
numerous meetings with energy industry executives. Meanwhile,
he has suspended meetings of the BLM's 30 resource advisory
committees, which are intended to give the Department balanced
input from local stakeholders across the country.
Every DOI decision cannot be popular with everyone. But I
submit that an unpopular decision is not evidence of natural
resources laws gone astray. If an agency has over-reached its
statutory authority, acted arbitrarily, or failed to follow
required procedures, affected parties have a remedy in court.
Otherwise, disagreement with the actions of a prior
administration is just that: evidence of shifting political
priorities, not of wrongdoing.
By contrast, as the courts are beginning to remind this
Administration, the current trend toward increased secrecy and
one-sided decision making is a recipe for agency over-reach and
for natural resource management agencies to go astray. If the
trend continues, I predict that the Trump administration
reforms will be tied up in courts for years, and industry will
not get the change it seeks.
Finally, as the Ranking Member noted, there is an elephant
in the room: climate change. There is no remaining doubt that
human-induced climate change will profoundly affect us for
generations, particularly vulnerable populations. That should
be this Committee's focus, not a search for alleged missteps by
the past administration. If we fail to address that looming
threat, history will not judge us kindly.
Thank you, and I look forward to your questions.
[The prepared statement of Ms. Leiter follows:]
Prepared Statement of Amanda C. Leiter, Professor, American University
Washington College of Law; Former Deputy Assistant Secretary, Land &
Minerals Management, U.S. Department of the Interior (2015-2017)
Introduction
Thank you for the opportunity to testify on our natural resources
laws.
The United States is fortunate to have abundant natural resources,
both on- and offshore. The public owns these resources, and they must
be managed for the benefit of all Americans. Congress has delegated
that task to a variety of resource management agencies, and those
agencies have, in turn, promulgated regulations to implement their
management responsibilities. The other witnesses are going to discuss
specific natural resources laws and regulations, but I want to take a
step back and address the overall premise of this hearing. While laws
can always be refined and improved, I strongly disagree that our
natural resources laws have gone astray. In fact, our legal framework
for managing public resources is one of the most balanced, open, and
participatory regimes in the world. I'd like to make five points about
that regime.
1. The Obama administration sought to balance the many competing
demands on our public land, air, water, wildlife, and mineral
resources.
Pressures on the United States' natural resources increase daily,
as our population grows (particularly in the West), extraction
technologies improve, and droughts, severe storms, and other climate
threats increase. We can no longer simply adopt a first-come-first-
served approach, as we arguably could in the days of the gold rush.
Rather, we must manage for the benefit of all Americans, balancing
multiple, often competing natural resource uses, including recreation;
grazing; timber production; coal, oil, and gas production; hardrock
mining; solar and wind power generation; clean water supply; protection
of sacred sites; and wildlife and wilderness preservation.
The Obama administration worked hard to balance these competing
demands. To take just a few examples from the Department of the
Interior, the Obama administration between 2009-2016 issued oil and gas
leases on 10.8 million new acres onshore, and 20.2 million new acres
offshore; instituted large scale land planning reforms, to designate
areas most suitable for mineral development and thereby resolve
conflicts prior to issuance of lease sales; upgraded the automated oil
and gas information tracking system, to reduce the processing time for
permits to drill; approved 60 new solar, wind, and geothermal energy
projects, capable of producing more than 15,000 megawatts of renewable
power; protected over 5 million acres of public lands onshore, and even
more acreage offshore; and worked with state agencies, oil and gas
producers, conservationists, outdoor recreation groups, and others to
keep the greater sage grouse from being federally listed as a
threatened or endangered species.
2. Because natural resource uses often conflict, resource management
agencies cannot allow all uses in every area.
As the Obama administration recognized, each acre of public lands
or waters is not suitable for every use. Rather, agencies must manage
for multiple uses in the aggregate, across all managed areas, even as
they confront very difficult decisions about which uses to prioritize
in particular areas. Should grazing be allowed near salmon streams?
Should wind turbines be constructed near eagle nests? Should seismic
testing occur in marine mammal habitat? Should off-road vehicle use be
allowed in areas criss-crossed with hiking and horse trails?
These questions principally illustrate the conflict between
conservation interests and development interests, but development
interests may also conflict with each other. For example, in Colorado,
the Bureau of Land Management (BLM) is collaborating with South Park
County to manage oil and gas development so as to protect the water
supplies for the burgeoning cities of Denver and Aurora. Similarly, in
New Mexico and Utah, the BLM has worked to balance potash development
and oil and gas development, which cannot co-exist on the surface of
the same lands at the same time.
Questions about which uses to prioritize are difficult and
controversial, and they must be answered acre by acre, parcel by
parcel, county by county, and state by state. There is no one-size-
fits-all answer. Rather, resource management agencies must consider the
nature of the resources in the affected area, the potential impacts of
the proposed activities, the availability of suitable mitigation, and
the desires and concerns of all affected people and entities.
3. Congress has outlined the procedures that agencies must follow to
regulate resource use, withdraw lands, or make leasing or
permitting decisions.
The Administrative Procedure Act and the various natural resources
laws mandate procedures that agencies must follow in making decisions
about resource uses. Those procedures vary from statute to statute and
resource to resource, but four central tenets cut across all contexts:
a sound scientific foundation, openness, transparency, and public
involvement. With very few exceptions, the agencies cannot allow,
disallow, or restrict a resource use without consulting with
scientists, engineers, and other agency experts; issuing a public
proposal; taking comment from affected people and entities; considering
all the comments received; revisiting the proposal; and issuing a final
decision that is reasonable and takes adequate account of the comments
received. In some cases, statutes also require that the agencies hold
extensive public meetings with affected parties, including state
governments, tribes, and local populations. In short, absolutely
nothing happens in secret.
Adherence to these procedures allows for the involvement of all
stakeholders. The final decision may still be unpopular with some--that
is the nature of balancing competing and conflicting resource uses. But
in almost every case, if the agency follows the required procedures,
affected parties have an opportunity to learn in advance of the
agencies' plans, and to provide feedback and concrete suggestions on
those plans. The procedures ensure that our bureaucracy is responsive
to the public will. And if the majority of the public continues to
object to the agencies' choices, the public has a chance to change
agencies' policy direction through Presidential elections
4. In my experience during the last 18 months of the Obama
administration, the Department of the Interior took openness,
transparency, and public involvement quite seriously.
President Obama pledged that his administration would be the ``most
transparent'' administration in U.S. history, and would ``create `an
unprecedented level of openness.' '' Reviews of the administration's
overall record on this issue are mixed, but in my experience both the
political and the career staff at the Department of the Interior worked
diligently to base all final resource management decisions on (1) sound
science; (2) input from all affected constituencies, including states,
tribes, local governments, industry, NGOs, and the public; and (3) the
wise counsel of our solicitor's office concerning our compliance with
our procedural (and substantive) legal obligations.
For example, I worked with the BLM to develop its final rule to
reduce methane waste from oil and gas operations on public lands (known
as the ``Waste Prevention, Production Subject to Royalties, and
Resource Conservation Rule,'' and issued on November 18, 2016). In the
18 months that I worked with the agency, we conducted public meetings
in four states, at which we heard from hundreds of industry employees
and local citizens; we held four tribal outreach meetings; we took
dozens of meetings with individual companies and industry trade
associations; we took a similar number of meetings with NGOs; we
extended the comment period in response to requests from industry; we
reviewed more than 330,000 written comments from the public, of which
approximately 1,000 were unique; and we met weekly with representatives
from our Solicitor's Office. Moreover, before I arrived in August 2015,
the BLM had already engaged in one round of public outreach, issuing an
advanced notice of proposed rulemaking and conducting a serious of
public and tribal meetings, and focused meetings with industry and
NGOs, input from which shaped the original draft rule.
Once the extended comment period ended in the summer of 2016, we
worked closely with our solicitors to amend the rule in response to
comments received. Industry let us know, for example, that regular leak
inspections would be quite costly, particularly for smaller operators,
so we worked to develop a less onerous leak detection and repair
program, and added a provision that allows operators to request BLM
approval of an alternative program in certain circumstances.
Secretary Sally Jewell's actions ahead of President Obama's
designation of Bears Ears National Monument likewise illustrate the
Obama administration's commitment to openness and public involvement.
The administration waited to make a final decision about the monument
until after Secretary Jewell engaged with stakeholders on both sides of
the controversial designation. Specifically, prior to the designation,
Secretary Jewell traveled--with members of the press--across more than
800 miles of Utah canyon lands; hosted a 3-hour public listening
session attended by more than 1,500 people; and spent days meeting with
Utah's governor, staff members for Utah's congressional delegation,
state legislators, commissioners from three counties, chairmen and
council members from at least five tribes, energy industry
representatives, ranchers, and NGOs.
Overall, the political staff at DOI took the commitment to a sound
decision-making process quite seriously. Moreover, in my experience,
the agency's career staff shared that commitment. Most of these
engineers, scientists, lawyers, and other professionals chose to work
in the Department of the Interior--often at lower pay than they would
receive in the private sector--because they believe in the agency's
mission. That does not mean they share a point of view; career
officials at the Department vary widely in their political
affiliations. But they share a dedication to the wise and sustainable
management of our public resources.
5. A commitment to open, transparent, and science-based decision making
is the only way to ensure balanced resource management
decisions.
As noted above, during the Obama administration, the Department of
the Interior engaged in a disciplined and open decision-making process
in determining how to manage the Nation's natural resources for the
benefit of all Americans. The result is a balanced record of which I am
proud--on the one hand, millions of acres protected from development,
on the other, reduced conflict over mineral development in other, more
suitable areas; on the one hand, millions of stream miles protected by
buffer zones, on the other, an easier process by which energy
developers can demonstrate compliance with the Endangered Species Act
and Migratory Bird Treaty Act; on the one hand, limits on venting,
flaring, and leaks from oil and gas wells, on the other, a streamlined
process for obtaining a permit to drill.
Unfortunately, the Trump administration and Secretary Zinke seem to
have abandoned the Obama administration's balanced approach, and its
commitment to openness, transparency, and sound science, in favor of
listening and responding only to industry stakeholders. A recent
Washington Post review of Secretary Zinke's calendar revealed that over
March and April of this year, he held more than a half-dozen meetings
with executives from oil and gas firms, including BP America, Chevron
and ExxonMobil. He also met with the American Petroleum Institute, the
Western Energy Alliance, and Continental Resources. The calendars
reveal that the discussions covered actions that Secretary Zinke later
took to reverse Obama-era policies, including an order purporting to
postpone certain requirements of the methane waste rule on which I
worked. Meanwhile, representatives from environmental NGOs report more
difficulty obtaining access.
Comparing Secretary Zinke's trip to Utah to ``review'' the Bears
Ears monument designation with Secretary Jewell's trip prior to the
designation is also revelatory: according to the Salt Lake Tribune,
Secretary Zinke held only two ``meetings with pro-monument activists
during his visit--the Bears Ears Inter-Tribal Coalition and Friends of
Cedar Mesa--for a total of about an hour and a half, while he traveled
extensively with anti-monument heavyweights.'' Likewise, he ``offered
little media availability outside of daily briefings, and no public
meetings.''
Meanwhile, in early May, Secretary Zinke suspended the upcoming
meetings of the BLM's 30 Resource Advisory Councils (RAC). Established
in 1995, these RACs each comprise 10-15 members from diverse interests
in local communities, including state and local government officials,
tribal members, ranchers, and environmental groups. The RACs are
intended to provide the BLM with input on the agency's initiatives,
regulatory proposals, and policy changes--input that Secretary Zinke
now will not receive.
Finally, even the Trump administration's requests for public
involvement serve to decrease rather than increase regulatory
transparency. Take, for example, the Administration's regulatory reform
agenda to ``alleviate unnecessary regulatory burdens placed on the
American people.'' Each agency is charged with implementing this agenda
in its own regulatory sphere. The Department of the Interior's public
notice requesting comment on regulatory reform states that the agency
is ``seeking public input on how it can best'' identify regulations for
``repeal, replacement or modification.'' The notice then lists a series
of criteria that might qualify an existing regulation for repeal--if
the regulation eliminates jobs or inhibits job creation, if it is (in
the commenter's view) ineffective or unnecessary, if it imposes costs
that (in the commenter's view) exceed its benefits. In essence, the
notice asks regulated entities to submit their wish list for rule
revocation, and provides them with a checklist of rationales to support
that revocation, but provides rule beneficiaries with no indication of
which rules are likely to be targeted or how best to submit evidence to
support the need to keep certain rules on the books.
I recognize that some of the Department of the Interior's decisions
during the Obama administration were unpopular with some members of
this Committee, and with your constituencies. Unfortunately, that is
inevitable, given that the Department's task is to balance multiple
competing and conflicting demands on public resources. It's impossible
to make everyone happy. But I submit that an unpopular decision is not
evidence of agency over-reach, nor of natural resources laws ``gone
astray.'' If an agency has in fact over-reached its statutory authority
or failed to follow required procedures, then affected parties have a
remedy in court. But short of that, disagreement with the actions of a
prior administration from a different party is just that: evidence of
shifting political priorities, not of wrongdoing.
On the other hand, the trend in the current Administration--toward
increased secrecy and one-sided decision making--is a recipe for agency
over-reach and for natural resource management to ``go astray.''
Consistent failure to engage in an open and transparent decision-making
process, consistent failure to consult with unbiased scientists in
assessing policy choices, insistence on meeting only (or mostly) with
industry representatives and not with other stakeholders, unilateral
and process-less postponement of regulatory requirements that are
validly in force--those actions are evidence of unreasoned decision
making and over-reach, as courts like the U.S. Court of Appeals for the
District of Columbia Circuit are already beginning to remind the
agency.
I would advise the regulated industries, therefore, to watch what
you wish for from this Administration. You may find yourself
confronting serious litigation delays if you continue to push your wish
list and fail to remind the agency of its statutory responsibility to
manage our natural resources for the benefit of all Americans, via an
open, transparent, and scientifically sound process.
Last, I cannot in good conscience occupy this witness seat without
addressing the elephant in the room. The single greatest threat to the
United States' resource wealth is climate change and associated
resource depletion. There is simply no remaining doubt that human-
induced climate change will profoundly affect us all. Devastating
floods are increasing in frequency; increasing droughts are affecting
the availability of water for drinking, agriculture, and fish habitat;
shifting climatic zones are impacting crop production; expanding beetle
ranges threaten forest resources; and warming and acidifying oceans are
likely to decimate fisheries stocks. Rather than engaging in a
misguided and ill-intentioned hunt for natural resources laws that have
allegedly ``gone astray,'' this Committee should focus its attention on
these very real threats to America's natural resource wealth, and
indeed to our way of life. If we fail to address these threats, history
will not judge us kindly.
______
Questions Submitted for the Record to Amanda C. Leiter, Professor,
Washington College of Law
Questions Submitted by Rep. McEachin
Question. Does peer-reviewed published research exist that
demonstrates the impacts of seismic airgun noise on marine life? If so,
what are some examples of the best available science on this issue?
Answer. Thank you for the opportunity to discuss this topic. As I
am not an expert in this area, I have consulted with several experts at
Duke University, the Natural Resources Defense Council, and Oceana and
provide this response with their assistance.
Yes, a substantial body of peer-reviewed research demonstrates that
seismic airgun noise can negatively affect marine life, including
whales and other marine mammals, fish, and zooplankton and other
invertebrates. Many marine species depend on hearing as their primary
sensory modality, and the introduction of powerful airgun noise
fundamentally alters their environment.
For example, seismic airgun noise causes whales to stop producing
vocalizations essential to breeding success, individual and cooperative
foraging, predator avoidance, and mother-calf interactions. In the
great baleen whales--many of which are considered endangered species--
this impact has repeatedly been demonstrated to occur on a vast scale,
on an order in some cases of 100,000 square kilometers or more around a
single seismic array, and across a range of behavioral states (feeding,
breeding, and migrating). As some of these studies note, such impacts
extend across a spatial scale sufficient to affect populations.\1\
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\1\ E.g., Castellote, M., Clark, C.W., and Lammers, M.O., Acoustic
and behavioural changes by fin whales (Balaenoptera physalus) in
response to shipping and airgun noise, Biological Conservation 147:
115-122 (2012); Cerchio, S., Strindberg, S., Collins, T., Bennett, C.,
and Rosenbaum, H., Seismic surveys negatively affect humpback whale
singing activity off Northern Angola, PLoS ONE 9(3): e86464 (2014);
Blackwell, S.B., Nations, C.S., McDonald, T.L., Thode, A.M., Mathias,
D., Kim, K.H., Greene, C.R., Jr., and Macrander, M., Effects of airgun
sounds on bowhead whale calling rates: Evidence for two behavioral
thresholds, PLoS ONE 10(6): e0125720 (2015).
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Seismic airgun surveys are also known to adversely affect marine
mammals in numerous other ways. For example, airgun surveys directly
disrupt foraging in marine mammal species as disparate as sperm whales
and harbor porpoises, resulting in substantially compromised feeding
success even at relatively low levels of exposure.\2\ They drastically
shrink the space within which whales can communicate with others of
their species, creating what biologists and acousticians have called an
``acoustic smog'' that interferes with foraging, breeding, and other
essential behavior at distances of hundreds to thousands of kilometers
from individual surveys.\3\ And they can cause a variety of other
impacts from hearing loss to habitat displacement.\4\
---------------------------------------------------------------------------
\2\ E.g., Miller, P.J.O., Johnson, M.P., Madsen, P.T., Biassoni,
N., Quero, M. and Tyack, P.L., Using at-sea experiments to study the
effects of airguns on the foraging behavior of sperm whales in the Gulf
of Mexico, Deep-Sea Research I 56: 1168-1181 (2009); Pirotta, E.,
Brookes, K.L., Graham, I.M. and Thompson, P.M., Variation in harbour
porpoise activity in response to seismic survey noise, Biology Letters
10(5): 20131090 (2014).
\3\ E.g., Guerra, M., Thode, A.M., Blackwell, S.B., Macrander,
A.M., Quantifying seismic survey reverberation off the Alaskan North
Slope, Journal of the Acoustical Society of America 130: 3046-3058
(2011); Nieukirk, S.L., Mellinger, D.K., Moore, S.E., Klinck, K.,
Dziak, R.P., and Goslin, J., Sounds from airguns and fin whales
recorded in the mid-Atlantic Ocean, 1999-2009, Journal of the
Acoustical Society of America 131: 1102-1112 (2012); Estabrook, B.J.,
Ponirakis, D.W., Clark, C.W., and Rice, A.N., Widespread spatial and
temporal extent of anthropogenic noise across the northeastern Gulf of
Mexico shelf ecosystem, Endangered Species Research 30: 267-382 (2016).
On the biological implications of these effects, see, e.g., Clark,
C.W., Ellison, W.T., Southall, B.L., Hatch, L., Van Parijs, S.M.,
Frankel, A., and Ponirakis, D., Acoustic masking in marine ecosystems:
intuitions, analysis, and implication, Marine Ecology Progress Series
395: 201-222 (2009).
\4\ E.g., Lucke, K., Siebert, U., Lepper, P.A., and Blanchet, M.-
A., Temporary shift in masked hearing thresholds in a harbor porpoise
(Phocoena phocoena) after exposure to seismic airgun stimuli, Journal
of the Acoustical Society of America 125: 4060-4070 (2009); Rosel,
P.E., and Wilcox, L.A., Genetic evidence reveals a unique lineage of
Bryde's whales in the northern Gulf of Mexico, Endangered Species
Research 25: 19-34 (2014).
---------------------------------------------------------------------------
In fish, seismic surveys are known to cause widespread behavioral
disruption, such as by causing fish abundance on coral reefs to plummet
during seismic exploration, even during periods when fish habitat use
is typically greatest.\5\ Not only can this redistribution compromise
life-history behaviors in fish, it can also interfere with fisheries.
Fishermen have complained for decades of loss of catch when seismic
airgun surveys move into an area, and airguns have been shown to
dramatically decrease catch rates of various commercial and
recreational fish species, (such as cod, haddock, pollock, and tuna),
by as much as 80 percent and over thousands of square kilometers around
a single array.\6\
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\5\ E.g., Paxton, A.B., Taylor, J.C., Nowacek, D.P., Dale, J.,
Cole, E., Voss, C.M., and Peterson, C.H., Seismic survey noise
disrupted fish use of a temperate reef, Marine Policy 78: 68-73 (2017).
\6\ E.g., Skalski, J.R., Pearson, W.H., and Malme, C.I., Effects of
sounds from a geophysical survey device on catch-per-unit-effort in a
hook-and-line fishery for rockfish (Sebastes ssp.), Canadian Journal of
Fisheries and Aquatic Sciences 49: 1357-1365 (1992); Engas, A.,
Lfkkeborg, S., Ona, E., and Soldal, A.V., Effects of seismic shooting
on local abundance and catch rates of cod (Gadus morhua) and haddock
(Melanogrammus aeglefinus), Canadian Journal of Fisheries and Aquatic
Sciences 53: 2238-2249 (1996).
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In both fish and invertebrates, seismic airguns have been shown to
damage hearing and sensory ability, impede larval development, induce
stress, interrupt vital behaviors, and cause mortality. Impacts have
been seen in species as diverse as salmon, snapper, and scallops.\7\
For example, in one important recent study, zooplankton--the foundation
of the ocean food web--were found to decline by up to 50 percent or
more, in more than half the zooplankton species examined, within a 1.5-
mile swath around a single, moderately sized airgun source. Krill
larvae were completely wiped out by that source. In the words of the
study's authors, these findings have ``enormous ramifications for
larval recruitment processes, all higher order predators, and ocean
life in general.'' \8\
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\7\ E.g., Sverdrup, A., Kjellsby, E., Kruger, P., Flfysand, R.,
Knudsen, F., Enger, P., Serck-Hanssen, G., and Helle, K., Effects of
experimental seismic shock on vasoactivity of arteries, integrity of
the vascular endothelium and on primary stress hormones of the Atlantic
salmon, Journal of Fish Biology 45: 973-995 (1994); McCauley, R.,
Fewtrell, J., and Popper, A.N., High intensity anthropogenic sound
damages fish ears, Journal of the Acoustical Society of America 113:
638-642 (2003); Aguilar de Soto, N., Delorme, N., Atkins, J., Howard,
S., Williams, J., and Johnson, M., Anthropogenic noise causes body
malformations and delays development in marine larvae, Scientific
Reports 3: art. 2831 (2013).
\8\ McCauley, R.D., Day, R.D., Swadling, K.M., Fitzgibbon, Q.P.,
Watson, R.A., and Semmens, J.A., Widely used marine seismic survey air
gun operations negatively impact zooplankton, Nature Ecology &
Evolution 1: art. 0195 (2017)
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On March 5, 2015, 75 marine scientists, including leading experts
in marine bioacoustics from Cornell, Duke, and other major research
institutions, submitted a letter to the Federal Government expressing
concern that Atlantic seismic surveys could compromise the population
health of marine mammals, fish, and marine invertebrates. Based on the
available literature, the scientists warned that seismic surveying ``is
likely to have significant, long-lasting and widespread impacts on the
reproduction and survival of fish and marine mammal populations in the
region.'' In their letter, the scientists maintain, ``Opening the U.S.
east coast to seismic airgun exploration poses an unacceptable risk of
serious harm to marine life at the species and population levels, the
full extent of which will not be understood until long after the harm
occurs.'' \9\
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\9\ Statement from C. Clark, Senior Scientist, Cornell Bioacoustics
Research Program, and 74 other marine scientists to the President of
the United States (Mar. 5, 2015), available at http://news.neaq.org/
2015/03/full-text-letter-urging-president-to.html.
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Despite the substantial body of research showing that seismic
airgun surveys can harm a diversity of marine life, the International
Association of Geophysical Contractors and others continue to make
statements such as the following statement in Ms. Martin's testimony to
this Committee: ``As the Bureau of Ocean Energy Management (BOEM) and
the National Marine Fisheries Service (NMFS) have continually stated
time and time again . . . to date, there has been no documented
scientific evidence of noise from acoustic sources used in seismic
activities adversely affecting marine animal populations or coastal
communities.'' Ms. Martin cites the Science Note posted by BOEM on
August 22, 2014, which states: ``To date, there has been no documented
scientific evidence of noise from air guns used in geological and
geophysical (G&G) seismic activities adversely affecting marine animal
populations or to commercial fishing.''
In a later Science Note from March 9, 2015, however, BOEM stated
that the Bureau ``does not and should not assume that lack of evidence
for adverse population-level effects of air gun surveys means that
those effects may not occur.'' Moreover, the 2014 statement is
incomplete and misleading for several reasons:
The statement fails to mention that no scientific studies
even purport to evaluate population level effects from
sound impacts of seismic surveying on marine mammals or
other marine animals--because it is difficult if not
impossible to determine impacts on an entire population.
Indeed, a NOAA paper concluded that, at present monitoring
levels, we have a less than 50 percent chance of detecting
a catastrophic decline in the majority of marine mammal
populations off the United States.
The statement omits the obvious lesson from the peer-
reviewed scientific literature noted above: that seismic
testing disrupts vital functions in marine mammals (and
other species), including endangered species of whales, at
scales at which population-level impacts are likely. BOEM
itself estimates that the introduction of seismic surveys
in the Atlantic would have widespread impacts on marine
mammals, including up to 13.5 million instances of
behavioral disruption, should seismic surveys begin.
The statement ignores the fact that the loss of even one
North Atlantic right whale, an iconic, endangered east-
coast species that is presently in decline, could
jeopardize the survivability of the population. Given right
whale's conservation status and the impacts of seismic
surveys on baleen whales, a group of 28 experts stated last
year that ``[t]he additional stress of widespread seismic
airgun surveys may well represent a tipping point for the
survival of this endangered whale, contributing
significantly to a decline toward extinction.'' \10\
Moreover, a paper currently in press, by Pace, et al.,
finds with 99.99 percent confidence that the whales'
already low population has declined since 2010.\11\
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\10\ Statement from C. Clark, S. Kraus, D. Nowacek, A. J. Read, A.
Rice, H. C. Rosenbaum, M. Baumgartner, I. Biedron, M. Brown, E.A.
Burgess, T. Frasier, C. Good, P. Hamilton, M. Johnson, R.D. Kenney, A.
Knowlton, N.S. Lysiak, C. Mayo, W.A. McLellan, B. MacLeod, C.A. Miller,
M.J. Moore, D.A. Pabst, S. Parks, R. Payne, D.E. Pendleton, D. Risch,
and R. Rolland to the President of the United States (Apr. 14, 2016).
\11\ R.M. Pace, III, P.J. Corkeron, and S.D. Kraus, State space
mark recapture estimates reveal a recent decline in abundance of North
Atlantic right whales (in press, 2017), and Scott D. Kraus.
In conclusion, scientific studies conclusively show that seismic
testing causes harm to marine mammals, fish, invertebrates, sea
turtles, and zooplankton. Statements by the IAGC and others that
Atlantic seismic surveys will not be harmful, comparing this activity,
for example, to ``ultrasound technology,'' are not only bereft of any
scientific support, they are flatly contradicted by peer-reviewed
scientific studies, and they are profoundly misleading.
A fundamental purpose of the Marine Mammal Protection Act is to
help ensure that marine mammals are not significantly harmed by human
activities. 16 U.S.C. 1361(1),(2). The ``primary objective'' of marine
mammal management under the Act is to ``maintain the health and
stability of the marine ecosystem.'' 16 U.S.C. 1361(6). Given the
overwhelming scientific evidence of harm inflicted on marine mammals
and other forms of ocean life by seismic testing noise, it is fully
consistent with the Act for the government to engage in a careful
scientific review of applications to shoot seismic surveys off the U.S.
coast, and to require that the impacts of any permitted seismic
activity are mitigated to the greatest extent practicable.
______
Mr. Westerman. Thank you, Ms. Leiter.
The Chair now recognizes Ms. Martin for 5 minutes for her
testimony.
STATEMENT OF NIKKI MARTIN, PRESIDENT, INTERNATIONAL ASSOCIATION
OF GEOPHYSICAL CONTRACTORS, HOUSTON, TEXAS
Ms. Martin. Chairman Westerman, Ranking Member McEachin,
and members of the Subcommittee, thank you for the opportunity
to testify. My name is Nikki Martin, and I am the President of
the International Association of Geophysical Contractors. I
testify today on behalf of IAGC's members, who represent the
first step in global energy exploration.
Seismic surveying is a well understood and environmentally
safe industry practice. Informed decisions regarding offshore
energy development can only be made with evaluation provided by
modern seismic data. It is for this very reason that the
seismic survey permitting process has been politicized actively
under the pretense of alleged harm to marine mammals.
The Marine Mammal Protection Act, or MMPA, was enacted in
1972, and, as with many environmental statutes of that era, was
passed with good intentions. While there will always be
exceptions, such as the loss of the Chinese River baiji
dolphin, and the current peril of the Mexican vaquita, both
victims of illegal, destructive fishing practices, the MMPA has
been a success. The statute boasts a long list of recoveries
and increased marine mammal populations alongside continuous
seismic surveying here in the United States and around the
world.
Populations that were considered robust remain robust, and
species protected from commercial exploitation and high rates
of fishery by-catch have recovered faster than expected, with
no apparent variation in populations with or without seismic
surveys.
The irony today is that a law never intended to regulate
sound in the ocean is now applied primarily to regulate sound-
generating activities. It has been exploited to delay and
impede seismic and exploration, which has no known proven
impact to marine life.
As the Bureau of Ocean Energy Management and the National
Marine Fisheries Service have continually stated time and time
again throughout changing political administrations, seismic
surveys have been used in U.S. waters for over 50 years. To
date, there has been no documented scientific evidence of sound
from acoustic sources adversely affecting marine animal
populations, commercial fishing, or coastal communities.
The reality is that the seismic industry has a long track
record of safe, responsible operations. Unfortunately, the
permitting of the surveys critical to identifying the Nation's
energy supplies is too often stalled or impeded by abuse of
existing regulation and litigation. At IAGC, I have seen
firsthand the detrimental impacts of non-transparent and
delayed decision making stemming from the MMPA, as it is
administered by agencies and exploited by advocacy groups in
ways never envisioned by Congress.
For the past decade, significant flaws in the MMPA have
enabled special interest groups to drive an anti-oil and gas
agenda through the courts and bureaucracies with no benefit to
marine life. Fixing these flaws would increase regulatory
certainty, decrease inefficiencies, and benefit all
stakeholders and implementing agencies.
The prime example is the Atlantic, where obtaining a permit
to conduct a seismic survey has been excessively laborious, and
riddled with uncertainty and unlawful delay. Initial requests
for survey permits were made 7 years ago, with the permits
under current consideration pending for the past 3. The
permitting of potential Atlantic surveys has included many
environmental impact reviews, and multiple opportunities for
public comment, including unprecedented comment periods not
required by statute.
However, the most concerning and problematic delays are
primarily due to difficulties acquiring incidental take
authorizations, or IHAs, from NMFS, pursuant to the MMPA.
Delays to pending IHA applications now stand in excess of 700
days. In my written testimony, I have provided detailed
recommendations on how Congress should amend the MMPA to bring
the law into the 21st century. These include updates to areas
of the statute that are ambiguous and unsuited for practical
application to offshore activities, and also recommendations to
address the inexcusable delays and procedural inefficiencies
that have occurred in the past decade.
Congressman Johnson's Streamlining Environmental Approvals
Act is the first step to correct the course on a wayward law.
The SEA Act provides a common-sense approach to ensure that
offshore energy exploration and other critical activities can
move forward, in line with the original intent of the MMPA. By
setting reasonable deadlines in the application process,
Congress can hold agencies accountable to existing statutory
timelines and prevent future misapplication of the statute.
The Act also recognizes the MMPA as the highest standard
for marine mammal conservation, and ensures that other
environmental review processes that provide no additional
benefit or higher threshold of review can be used to stall the
permitting of activities that pose no threat to marine life.
We urge Congress to repair the MMPA, reasserting the law to
protect marine mammals from real threats, as identified by the
best-available science, not phantom impacts imagined by anti-
oil and gas groups, and pass the SEA Act, along with yet-
introduced legislation to modernize the statute.
Thank you for the opportunity.
[The prepared statement of Ms. Martin follows:]
Prepared Statement of Nikki C. Martin, On Behalf of the International
Association of Geophysical Contractors (IAGC)
Written Testimony on the Marine Mammal Protection Act (MMPA)
Chairman Westerman, Ranking Member McEachin, and members of the
Subcommittee, for the record, my name is Nikki Martin and I am the
President of the International Association of Geophysical Contractors
(IAGC). I have extensive experience and background in environmental
regulation and legal and government affairs. I am an attorney and
studied political science. Before becoming the President of the IAGC, I
served as the Association's Vice President for Government and Legal
Affairs. I am the former Regulatory and Legal Affairs Manager at the
Alaska Oil & Gas Association and previously practiced law in Anchorage,
Alaska. Earlier in my career, I also served as staff to U.S. Senate
President Pro Tempore Ted Stevens and as legislative aide to the Alaska
State Senate President and Alaska State House Majority Leader.
On behalf of the IAGC, I appreciate the opportunity to voice to the
Subcommittee on Oversight and Investigations our support for
modernizing the Marine Mammal Protection Act (MMPA).
The IAGC is the international trade association representing all
segments of the geophysical industry, essential to discovering and
delivering the world's energy resources. The IAGC member companies play
an integral role in the successful exploration and development of
hydrocarbon resources, onshore and offshore, through the acquisition
and processing of geophysical data. For more than 45 years, IAGC has
been the global voice of the geophysical industry and is the only trade
organization solely dedicated to the industry. The IAGC represents more
than 110-member companies from all segments of the geophysical
industry. Our members help to shape industry priorities and positions
through IAGC chapters, committees and workgroups.
Seismic and other geophysical surveys have been safely conducted in
the United States and around the world for over 50 years. These
geophysical surveys are the critical first step to better understanding
the resource base of the Outer Continental Shelf (OCS) and providing
policy makers and regulators with the information they need to make
informed decisions about oil and gas development based on the best
available data. Surveys do not necessarily lead to oil and gas
development. In fact, surveys determine both areas that are and are not
likely to have recoverable oil and gas resources. However, unless the
surveys can commence, that information will never be available to
policy makers and the public. It is important to point out that seismic
and other geophysical survey activities are temporary and transitory;
they are the least intrusive way to explore the earth's geology and its
dynamic processes which impact human lives.
The use of modern seismic technology is similar to ultrasound
technology which is commonly used in the medical profession for imaging
the human body. Today's advancements in seismic technology, which can
pinpoint the most fruitful areas for hydrocarbon potential, have
contributed to reducing the overall environmental footprint associated
with oil and gas exploration. Seismic technology has also helped to
decrease operational and safety risks associated with oil and gas
development.
Seismic surveying is a well understood and safe industry practice,
and informed policy decisions regarding offshore energy development can
only be made with the evaluation provided by modern seismic survey
technology. And it is for this very reason that environmental advocacy
groups have actively worked to politicize the seismic survey permitting
process, under the pretense of alleged harm to marine mammals.
As the Bureau of Ocean Energy Management (BOEM) and the National
Marine Fisheries Service (NMFS) have continually stated time and time
again--throughout changing political administrations--to date, there
has been no documented scientific evidence of noise from acoustic
sources used in seismic activities adversely affecting marine animal
populations or coastal communities.\1\ They note that this technology
has been used for decades around the world, including in U.S. waters
off of the Gulf of Mexico and Alaska with no known detrimental impact
to marine animal populations or to commercial fishing.
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\1\ BOEM stated in its August 22, 2014 Science Note.
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Indeed, more than five decades of worldwide seismic surveying and
scientific research demonstrate that the risk of direct physical injury
to marine mammals is extremely low, and there is no scientific evidence
demonstrating biologically significant negative impacts on marine life
populations. Because survey activities are temporary and transitory,
they are the least intrusive way to explore the earth's geology.
As an example, of the usefulness of geophysical data, the BOEM
recently announced the public release of a 1.4-billion-pixel map that
will help scientists from academia, environmental agencies, and
governmental agencies further understand the prolific Gulf of Mexico
region. This once-impossible feat was created by using more than 200
individual maps from geophysical companies, all of which are IAGC
members. The maps cover 135,000 square miles of the Gulf of Mexico with
datasets spanning more than 30 years. In the more than 50 years of
seismic surveying in the Gulf of Mexico, there has not been a single
reported incidence of sound from seismic operations injuring marine
life.
The seismic industry is committed to conducting its operations in
an environmentally responsible manner, and utilizes mitigation
measures, such as exclusion zones, soft-starts, and protected species
observers to further reduce any possibility of potential impacts to
marine life. The industry supports a process of developing and
implementing effective mitigation measures that are proportionate to
the level of potential risk and specific to the local population of
marine animals.
The reality is the seismic industry has a long track record of
safe, responsible operations around the world. Unfortunately, the
permitting of this activity critical to identifying the Nation's energy
supplies is too often stalled or impeded by extreme environmental
advocacy organizations exploiting existing regulatory and litigation
processes.
In my capacity as President of the IAGC, I have experienced
firsthand the detrimental impacts of non-transparent and delayed
decision making on the geophysical industry stemming from an outdated
law, the MMPA, which is currently being administered by agencies and
exploited by advocacy groups in ways that were never envisioned by
Congress.
mmpa background
When it was enacted in 1972 (and subsequently amended), the
congressional intent behind the MMPA was cutting edge and forward-
thinking. The MMPA was intended to address significant declines in some
species of marine mammals caused by human activities such as
overhunting, overfishing and unscrupulous trade. It was not originally
designed to regulate sound in a marine ecosystem.
The MMPA established a prohibition on the ``taking'' of marine
mammals in U.S. waters, unless the take is authorized by the designated
U.S. regulatory authorities, the NMFS and the U.S. Fish and Wildlife
Service (FWS). Congress defined ``take'' in the MMPA as ``to harass,
hunt, capture or kill'' a marine mammal, or the attempt to do so.
``Harassment'' is defined as ``any act of pursuit, torment, or
annoyance'' that either:
A. ``has the potential to injure a marine mammal or marine
mammal stock in the wild'' (referred to as a Level A
harassment); or
B. ``has the potential to disturb a marine mammal or marine
mammal stock in the wild by causing disruption of behavioral
patterns, including, but not limited to, migration, breathing,
nursing, breeding, feeding, or sheltering'' (referred to as a
Level B harassment).
Under the MMPA, NMFS and FWS administer a system of permitting
authorities that allows for take in certain situations, such as for
commercial fishing permits, scientific research permits, educational
activities (e.g., science centers and aquaria) and subsistence hunting
in Alaska. For many years, NMFS and FWS have authorized the incidental,
but not intentional, taking of marine mammals for activities related to
offshore seismic and offshore energy and minerals exploration. This is
done through issuance of Incidental Take Regulations (ITRs), which are
effective for a period up to 5 years, and through Incidental Harassment
Authorizations (IHAs), which are effective for a period of no more than
1 year. The best available science and information demonstrate that,
whether individually or cumulatively, these authorizations have
resulted in no detectable adverse impacts to marine mammal populations.
Current NMFS policy measures whether sound from a proposed
activity, such as seismic surveying, has the potential to injure (Level
A harassment) or has the potential to disrupt a behavioral pattern
(Level B harassment) using agency guidance setting forth defined
threshold decibel levels.
There are no verified injuries or deaths of marine mammals from
exposure to seismic survey arrays. NMFS itself recognizes that ``[t]o
date, there is no evidence that serious injury, death or stranding by
marine mammals can occur from exposure'' to seismic air source arrays,
even in the case of large arrays. In marked contrast, the greatest
source of marine mammal takes today come from fisheries bycatch, and
these take counts are based on direct observation of marine mammals
killed or seriously injured during fishing.
While there will always be exceptions, such as the loss of the
Chinese baiji river dolphin and the current peril of the vaquita in
Mexico, both victims of illegal destructive fishing practices, the
history of marine mammals since the MMPA was enacted has been a long
list of successes: the recovery of California sea lions, Guadalupe fur
seals and elephant seals from near-extinction, the de-listing of gray
whales and humpback whales since the cessation of whaling, the end of
massive losses of pelagic dolphins in the tuna purse seine fishery--and
more.
Even the story of the North Atlantic Right Whale is largely one of
success, as the species has continued to slowly recover from near
extinction. While seismic surveys off the U.S. Atlantic coast have not
been as common as at other sites where other right whale species have
bounced back from whaling in more dramatic fashion, it still must be
noted that the whales at those other sites made their dramatic
recoveries in the presence of frequent and ongoing seismic surveys
(South Africa, South America, Australia, New Zealand). And despite the
relative infrequency of seismic surveys on our Atlantic coast in recent
decades, the North Atlantic species is certainly no stranger to seismic
surveys during their movements between the U.S. Atlantic coast, Canada,
and even as far as the North Sea where seismic survey activity has been
common for decades.
All of this post-MMPA good news has taken place in a context of
continuous use of seismic surveys around the world. Populations that
were considered robust prior to the MMPA remain robust and species
removed from commercial exploitation or high levels of fishery bycatch
have bounced back as fast or faster than expected even as seismic
survey activity went on all around them without any apparent difference
from locations without seismic survey activity.
However, decades of regulation and litigation have exposed some
significant flaws in the MMPA. Fixing these flaws would increase
regulatory certainty, decrease inefficiencies, and ultimately benefit
all stakeholders and implementing agencies.
The primary flaws stem from poorly written statutory language that
creates (1) ambiguity and uncertainty in the application of the MMPA's
legal standards, and (2) procedural inefficiency. Fixing some of the
most obvious flaws in the MMPA could result in tangible regulatory
benefits.
The following addresses some of the key problematic areas, as well
as potential solutions. Following the examples set forth below on the
practical impacts to the geophysical industry, I will provide detailed
recommendations on how the MMPA should be amended to bring the law into
the 21st century. It is time to bring the MMPA back in line with its
original intent.
atlantic ocs
Approximately 30 years have passed since seismic surveys assessed
the potential hydrocarbon resource base of the U.S. Atlantic OCS.
However, seismic surveys for `scientific research' have been conducted
fairly regularly in the Atlantic OCS, in addition to other geophysical
surveys used to characterize the seabed and subsurface for suitability
of offshore wind energy facilities. One recent `scientific research'
survey collected data along 3,000 miles of trackline in the area of the
Outer Banks, of North Carolina, between September and October 2014.
This survey used the same technology that is used for oil and gas
exploration. Another recent research seismic survey to record sea level
change and its impact on the coastline was completed in July 2015 off
the New Jersey coast.
Currently, six IAGC member companies are pursuing issuance of
permits to conduct seismic surveying in the Atlantic OCS, a process
that started 7 years ago when the first permit application was filed,
with then-Minerals Management Service. These proposed surveys are
essential to the potential ``expeditious and orderly development'' of
the OCS, as mandated by Congress in the Outer Continental Shelf Lands
Act (OCSLA).
After extensive environmental review at the programmatic level, the
BOEM published a Record of Decision in July 2014, authorizing
consideration of permits for geophysical surveys. Since then, pending
permit applications have been subjected to a regulatory process plagued
with continued delays and uncertainty. This inexplicable and
inexcusable process was capped by the previous administration's abrupt
political decision, on the eve of a new presidency, to summarily deny
all permit applications. BOEM has since correctly reinstated the permit
applications, which remain under agency review.
Needless to say, obtaining a permit to conduct a seismic survey in
the Atlantic has been an extensive process that includes many
environmental impact analyses, multiple opportunities for public
comment and review, including additional and unprecedented public
comment periods that are not required by statute or regulation, and
reviews by bordering states. However, the most concerning and
problematic delays beginning in July 2014 are primarily due to
difficulties acquiring IHAs from NMFS for the incidental take of marine
mammals pursuant to the MMPA. BOEM has indicated that they will not
issue decisions on pending seismic survey permits until NMFS has also
authorized IHAs for the proposed activities.
As part of the permitting process to move forward with data
acquisition on the Atlantic OCS our members have applied for coverage,
in the form of IHAs issued pursuant to the MMPA, for any incidental
harassment of marine mammals. The MMPA establishes clear deadlines for
the processing of IHA applications. MMPA Section 101(a)(5)(D) states
that the ``Secretary shall publish a proposed authorization not later
than 45 days after receiving an [IHA] application'' and request public
comment. 16 U.S.C. Sec. 1371(a)(5)(D)(iii) (emphasis added). After
holding a 30-day comment period, the Secretary ``shall issue'' the IHA
within 45 days of the close of the comment period, so long as the
required MMPA findings are made. Id. These deadlines are particularly
important because IHAs are issued for a period of only 1 year and
planning for offshore surveys is complicated and very time-sensitive.
Here, the IHA applications were submitted in 2014 (with some of them
updated in the summer of 2015), and the first 45-day statutory deadline
has already been surpassed by a substantial period of time. NMFS's own
website acknowledges that following an adequacy and completeness review
of 2 to 6 weeks, a full application process should last 6 to 9 months.
Some of our members have now waited nearly 2 years for IHAs.
To further illustrate the inconsistencies present in the BOEM
permit and NMFS IHA processes for the Atlantic, BOEM provided an
unprecedented 45- and 60-day public comment period on pending
geophysical permit applications and NMFS added an unprecedented 30-day
comment period on IHA applications. To our knowledge, neither comment
period has ever been required for a permitting process or IHA process
before.
Many reasons have been speculated for the delays to issuing
decisions on pending IHA applications, which now stand in excess of 700
days in some cases. According to NMFS, one such delay in issuing IHAs
was due to an unpublished study from Duke University that was
unavailable to the public while the agency stalled its review of IHA
applications to consider it at the request of certain environmental
advocacy organizations.\2\ These organizations have a well-established
history of using the regulatory and litigation processes as means to
impede and ultimately attempt to prevent any activities from occurring
because they are fundamentally opposed to all offshore oil and gas
activities.
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\2\ IAGC, API, NOIA letter; Atlantic Ocean Geological and
Geophysical Applications--December 9, 2015.
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Additional delays were attributed to uncertainty over application
of a series of drafts and final guidance addressing acoustic threshold
levels for permanent and temporary auditory threshold shifts in marine
mammals (Acoustic Guidance).
Much has been made by environmental groups and the media of the
estimate for as many as 138,000 Level A (potentially injurious)
``takes'' in the BOEM's programmatic environmental impact statement
(PEIS) addressing the potential effects of seismic activities in the
Atlantic Ocean. Using a more realistic risk criterion based on the
above peer-reviewed research, and taking into account standard
monitoring and mitigation practices employed by the seismic industry,
the more likely estimate of potential Level A takes is zero or a
comparably small single digit number; again, consistent with past
experience in the Gulf of Mexico and other locations globally. In fact,
with successful mitigation the government acknowledges that all
estimates of injury would be avoided.
After completing a set of new acoustic guidelines in July 2015,
complete with external expert review and an extended public comment
period, NMFS again failed to implement new guidelines. Then
unexpectedly on March 16, 2016, NMFS released a third draft of proposed
revised acoustic guidelines. The third draft did not receive external
expert peer review before it was sent to the public and NMFS provided
for only a 14-day public comment period while inexplicably denying all
reasonable extension requests. Within the short time period allowed for
review, the experts within the seismic industry concluded that there
are egregious errors in how NMFS calculated sound impacts on marine
mammals. In an apparent attempt to appease special interest groups
inside and outside the agency, NMFS created a biologically unrealistic
`precautionary' large whale hearing function and selectively removed
data from the large whale and seal hearing literature to better support
a modified hearing curve that specifically targeted low frequency sound
sources like seismic survey sounds. The guidance was finalized in the
fall of 2016 with only minor changes and included a `short-cut' work-
around purposefully designed to be overly cautious.
IAGC applauded inclusion of the acoustic guidelines in the
President's Executive Order earlier this year and will work closely
with the new Administration to ensure the guidance is amended to
reflect the best and accurate scientific information. Currently,
however, NMFS is using the flawed acoustic guidance to (over)estimate
the amount of takes that may be authorized by the Atlantic IHAs. NMFS's
inability to issue new acoustic guidance on a timely or straightforward
basis as resulted in substantial additional delay.
Excessive delays, in violation of statute, should not continue and
we appreciate this Committee's oversight in ensuring Federal agencies
are making transparent decisions, relying on the best publicly
available science in a manner that is faithful to Federal law and
policy, which mandates the ``expeditious and orderly'' development of
the OCS ``subject to environmental safeguards.'' Approximately 80
percent of the Mid- and South Atlantic Planning areas that was
originally included in the draft 2017-2022 Five-Year Plan for
consideration of exploration leases, has never been evaluated with
seismic surveys. Based only on the small portion of the Atlantic OCS
that has previously been surveyed, the BOEM estimates 4.72 billion
barrels of recoverable oil and 37.5 trillion cubic feet of recoverable
natural gas are available. With the ability to survey the Atlantic OCS
with more modern technology, it is likely these estimates will
significantly increase.
Further delay from the agencies is unacceptable and has no support
in the plain language of the MMPA or the mandate of OCSLA.
gulf of mexico ocs
In 2016, BOEM--on behalf of oil and gas and geophysical
industries--submitted to NMFS a revised Application for ITRs for
geophysical survey activity in the Gulf of Mexico (GOM). Pursuant to
the MMPA, the ITRs would establish a framework for authorization of
incidental take of marine mammals over the course of 5 years. NMFS
accepted public comments on the application in early 2017.
The GOM OCS is a significant source of oil and gas for the Nation's
energy supply. In 2014, the GOM OCS region was responsible for 16
percent of the total U.S. crude oil production and 5 percent of dry
natural gas production. Likewise, GOM OCS leases are an important
source of Federal revenues, generating substantial bonuses, rentals,
and royalties paid to the United States. Since 2008, lessees have paid
over $11 billion in bonus bids for lease sales in the GOM OCS.
Total oil and gas royalty revenues from the GOM OCS amounted to
almost $5 billion in Fiscal Year 2015 alone. Moreover, BOEM has
recently estimated the net economic value of future GOM leasing to be
as high as $197 billion. Geological and geophysical survey activities
are crucial to the discovery, development, and valuation of OCS
resources that lead to such production. This technology has been used
for more than 50 years around the world. It is still used in U.S.
waters in the GOM with no known detrimental impact to marine animal
populations or to commercial fishing.
Industry members are committed to environmental protection and
ensuring that geophysical activities in the Gulf of Mexico are carried
out in a responsible manner. Industry's long-standing and ongoing
research into these issues reflects those interests. We do not,
however, support ineffective, unproductive, or unreasonable
requirements.
arctic ocs
The oil and gas industry has routinely applied for and successfully
received incidental take authorizations pursuant to the MMPA covering
geophysical and other exploration activities in the Arctic OCS, by NMFS
and the FWS on a project-by-project basis (i.e., incidental harassment
authorizations) or through the issuance of ITRs and related letters of
authorization.
In the past decade, almost every MMPA ITR issued for Arctic oil and
gas activities has been challenged by environmental advocacy
organizations, and in every instance and on all counts, the
authorizations have been upheld by the courts. Specifically, various
advocacy organizations challenged the U.S. Fish & Wildlife Service's
2006 Beaufort Sea ITRs, 2008 Chukchi Sea ITRs, and 2013 Chukchi Sea
ITRs. These lawsuits were litigated in the Alaska Federal District
Court and each lawsuit was appealed to the Ninth Circuit Court of
Appeals. The plaintiffs asserted claims under the Administrative
Procedure Act (APA) alleging violations of the MMPA and other Federal
environmental statutes. The most recent lawsuit challenging the 2013
Chukchi ITR was an expressly admitted attempt by advocacy organizations
to block Shell's Chukchi Sea exploration program.
In all three cases, neither the Alaska District Court nor the Ninth
Circuit found merit in any of the claims raised by the advocacy groups.
The track record of MMPA ITR litigation in the Arctic strongly supports
the notion that advocacy groups have leveraged their ability to
challenge MMPA ITRs via the APA as a means to attempt to block or
impede oil and gas operations. However, although these lawsuits have
cost the courts, agencies, and applicants substantial time and money,
they have accomplished no meaningful result (other than delay, as
intended by the advocacy groups) because, as the courts expressly held
on all counts, none of the claims raised had any merit.
The past and existing approach to implementing the MMPA in the
Arctic has been relatively efficient, thorough, effective, and approved
by the courts. Yet, advocacy organizations have continued to misuse the
APA's litigation provisions to attempt--unsuccessfully--to impede
Arctic oil and gas activities. The misguided intentions of these
organizations have not only failed in court, but the allegations upon
which they are supposedly based have not borne out in the scientific
record.
After decades of oil and gas exploration activities in the Arctic,
there is no information demonstrating that any of the activities have
had anything more than a negligible impact on marine mammal. This
finding has been repeatedly made by Federal agency scientists in
numerous public documents. In fact, as just one example, the iconic
Arctic bowhead whale has dramatically increased in abundance during
this same period of time.
specific recommendations for modernizing the mmpa
The following recommendations focus on the areas of the MMPA that
are ambiguous and unsuited for practical application to offshore
activities, and have been misapplied by agencies in the regulatory
process and exploited by environmental advocacy organizations in
litigation.
To issue an incidental take authorization under Section 101(a)(5)
of the MMPA, the agency must show that the authorization will have no
more than a negligible impact on marine mammal populations and result
in only small numbers of incidentally taken animals.
Problems: (1) ``Negligible impact'' is not clearly
defined; (2) ``small numbers'' is not defined at all; and
(3) there is significant overlap between these two
ambiguous standards. These problems have led to regulatory
uncertainty, inconsistent application by agencies, and much
litigation.
Solution: Create a redefined unambiguous ``negligible
impact'' standard, and eliminate the ``small numbers''
requirement. A single, clear standard for authorizations
would result in regulatory efficiency and predictability.
To issue an incidental take authorization, the agency must require
``other means of effecting the least practicable impact.'' These
``other means'' typically take the form of mitigation measures included
as conditions of the authorization.
Problem: ``Least practicable impact'' is not defined in
the statute or in the implementing regulations. As a
result, it is not consistently applied by agencies, there
is very little guidance for the regulated community, and,
most recently, the phrase has been unreasonably interpreted
by the Ninth Circuit Court of Appeals.
Solution: Create a new, clear definition for ``least
practicable impact.'' The definition should state that
operational concerns and economic feasibility are primary
factors in determining what mitigation is ``practicable.''
The MMPA permits the authorization of incidental take by
harassment.
Problem: The definition of ``harassment'' is overly broad
and ambiguous, and confusingly refers to ``potential''
harassment rather than actual harassment. This results in
serious problems in the estimation of incidental take and
unrealistic assumptions made by the implementing agencies.
Solution: Redefine ``harassment'' to remove the word
``potential'' and to establish a more specific standard
that provides better clarity for the agencies and the
regulated community.
procedural recommendations for implementing the mmpa
The following recommendations are specifically intended to address
the inexcusable delays and other regulatory implementation problems
that have occurred in the past decade. These recommendations are
intended to make the regulatory process more efficient and predictable
for both the implementation agencies and the regulated community.
The process for issuing incidental take authorizations is routinely
delayed by the implementing agencies. The current procedural
requirements create little accountability for agencies because they are
either ambiguous or establish no consequences or solutions for
unreasonably delayed agency action.
Solution #1: Revise the procedural requirements to set
clear and firm deadlines for each stage of the permitting
process, and establish consequences for when agency
deadlines are not met (e.g., default approvals).
Solution #2: Create a streamlined authorization process
for certain low-effect, but common, activities (similar to
the nationwide permit process under the Clean Water Act).
The MMPA creates a 5-year limit on ``incidental take regulations''
that requires applicants to petition for a new set of regulations every
5 years. This results in unnecessary and burdensome administrative
processes that create frequent opportunities for litigation.
Solution: Remove the 5-year limit or, alternatively,
create a simple and straightforward 5-year renewal process.
Issues involving the overlap of the MMPA, the Endangered Species
Act (ESA), and the National Environmental Policy Act (NEPA) have proven
difficult for the agencies, the courts, and the regulated community.
Because the MMPA sets the most rigorous conservation-oriented standards
of all these statutes, additional reviews and administrative processes
under the ESA and NEPA are often unnecessary and redundant.
Solution: Make statutory revisions to minimize or
eliminate the need for duplicative ESA and NEPA review
processes for certain MMPA authorizations. This would
substantially increase regulatory efficiency.
streamlining environmental approvals act of 2017
In an effort to begin to bring certainty and clarity to the MMPA
and solve some of the problems outlined in my testimony above,
Representative Johnson (LA) has introduced, the Streamlining
Environmental Approvals Act of 2017, or the SEA Act. By reducing
burdensome geophysical authorizations, the SEA Act will ensure improved
access to and expanded production of domestic energy supplies.
Similar to many other laws, the MMPA has been expanded and
interpreted beyond what the law was intended to regulate. After decades
of regulation and litigation, the law as applied is significantly
different than what was originally intended by Congress. This current,
overly burdensome and duplicative process impacts numerous business and
communities. For years, the U.S. Navy has experienced substantial
delays and added costs in acquiring permits to conduct sonar activity
in U.S. oceans.
The bill would set clear and firm deadlines for each stage of the
authorizing process by establishing a consequence for default approvals
when deadlines are not met. Because IHAs expire after 1 year, project
proponents must re-apply over multiple years, even if there is little
or no change in the best available science or the marine mammal
population. The SEA Act will allow IHAs to be renewed without lengthy
and needless agency review so long as there have been no significant
changes to the underlying activity.
Additionally, the bill removes duplicative Federal agency processes
between the MMPA and the Endangered Species Act (ESA) to increase
regulatory efficiency. Because the MMPA sets the most rigorous,
conservation-oriented standards of the two statutes, additional review
and administrative processes under the ESA are unnecessary, redundant,
and add no additional protections.
Specific Provisions of the SEA Act:
Technical changes are made through striking and adding new
legislative language.
The Secretary has 45 days to accept or deny the request
for a permit. The Secretary also has the option to request
additional information to complete the request, but may not
make a second request for information. If the Secretary
does not respond within 45 days, the request will be
considered complete by default. Following the completeness
determination period, a 30-day public comment period will
be provided.
Allows the option to extend an IHA for more than a year if
there has been no substantial change to the marine mammal
population. The holder may request this extension up to 90
days before the expiration of the permit and the Secretary
has 14 days to respond.
The Secretary has 120 days total after an initial
application to issue the authorization allowing for
activity to begin. Should the deadline not be met, the
authorization will be deemed approved on the terms stated
in the application.
Marine mammals that are also listed as endangered or
threatened under the ESA are regulated under both the MMPA
and ESA. The final section would exempt marine mammals from
the ESA's section 9 take prohibition and section 7 Federal
consultation requirement since any ``take'' would be
regulated by more stringent requirements of the MMPA. This
will greatly reduce duplicative actions by Federal agencies
with no negative impacts individual marine mammals or
marine mammal species.
conclusion
After more than 50 years of continuous seismic survey sound in many
places around the world, including the Gulf of Mexico, and after a
decade of intense scientific and environmental advocacy group scrutiny,
there is still no scientific support for statements that seismic sound
kills or injures marine mammals, causes them to beach themselves, or
disrupts their behavior to the extent that it affects the health and
well-being of the individuals or the populations of which those
individuals are a part. This, however, does not mean that our industry
plans to discontinue our active search for any and all potentially
undetected risks through our support of independent, third-party
research, nor does it mean that we will reduce our diligence in
monitoring, mitigation and documentation of our activities and their
potential environmental effects.
The preponderance of evidence against the possibility of
environmental effects from our activities does, however, mean that
irresponsible and unsupported speculations of what ``could, might, or
may'' potentially occur will be subjected to the same high standards of
scientific verification and validation that would be expected of our
own industry-funded research.
As BOEM stated in its August 22, 2014 Science Note, ``To date,
there has been no documented scientific evidence of noise from air guns
used in geological and geophysical (G&G) seismic activities adversely
affecting marine animal populations or coastal communities. This
technology has been used for more than 30 years around the world. It is
still used in U.S. waters off of the Gulf of Mexico with no known
detrimental impact to marine animal populations or to commercial
fishing.''
IAGC finds it unacceptable for seismic permit applicants to have to
wait over 2 years for issuance of a simple IHA when all the requisite
environmental analysis, based on the best available science, has long
since been completed. We ask this Committee to urge NMFS to adhere to
required timelines set forth in the MMPA. Further, we urge the Full
Committee on Natural Resources to support and pass legislation to
modernize the MMPA, including passage of the SEA Act without delay. The
development of regulatory mechanisms for the Atlantic OCS and the Gulf
of Mexico by the Department of the Interior and related agencies such
as NMFS has become a regulatory abyss in which the necessary and
sufficient conditions for obtaining a permit are obscure and constantly
changing without sufficient notice or adequate review. The lack of
transparency and reliance upon scientifically questionable regulation
and policy cannot continue if the United States intends to chart a
sustainable energy future.
According to a recent report \3\ from the U.S. Energy Information
Administration, within the Department of Energy, global energy will
grow by 48 percent by 2040. Many experts have explained that even the
most ambitious schedule of renewable energy development will still
require substantial supplies of oil and gas for at least the next 30-40
years, if not longer.
---------------------------------------------------------------------------
\3\ U.S. Energy Information Administration's International Energy
Outlook 2016.
---------------------------------------------------------------------------
We urge Congress to review the MMPA and pass meaningful reform,
including the SEA Act, that will rectify the existing limbo for pending
seismic survey IHA applications. Streamlining the permitting process
along with reducing the ability for outside special interest groups to
obstruct energy exploration is a necessary first step to ensure our
continued development for future generations.
Thank you for the opportunity to testify today.
*****
The following documents were submitted as supplements to Ms. Martin's
testimony. These documents are part of the hearing record and are being
retained in the Committee's official files:
-- December 9, 2015 Letter to Kathryn D. Sullivan, Administrator,
National Oceanic and Atmospheric Administration and Abigail
Ross Hopper, Director, Bureau of Ocean Energy Management
from Erik Milito, Group Director, Upstream & Industry
Operations, American Petroleum Institute; Nikki Martin,
President, International Association of Geophysical
Contractors; and Randall Luthi, President, National Ocean
Industries Association, regarding Atlantic Ocean Geological
and Geophysical Survey Applications.
-- February 2, 2017 Letter to Mr. Samuel D. Rauch, III, Acting
Assistant Administrator for Fisheries, National Marine
Fisheries Service from Nikki Martin, President,
International Association of Geophysical Contractors and
Andy Radford, Sr. Policy Advisor--Offshore, American
Petroleum Institute regarding Applications for MMPA
Incidental Harassment Authorizations for Geophysical
Surveys in the Atlantic Ocean.
-- May 19, 2017 Letter to Jolie Harrison, Chief, Permits and
Conservation Division, Office of Protected Resources,
National Marine Fisheries Service from Nikki Martin,
President, International Association of Geophysical
Contractors and Andy Radford, Sr. Policy Advisor--Offshore,
American Petroleum Institute regarding Applications for
MMPA Incidental Harassment Authorizations for Geophysical
Surveys in the Atlantic Ocean.
______
Questions Submitted for the Record to Nikki C. Martin, President,
International Association of Geophysical Contractors
Questions Submitted by Rep. Johnson
Question 1. Under the Marine Mammal Protection Act, anyone wishing
to conduct operations that have the potential to result in harm to
marine mammals must obtain a permit to authorize incidental take. In
your testimony, you characterize the process for obtaining these
permits as an extremely long and complicated process, one that has
taken years for some companies.
1a. What accounts for these delays?
Answer. There are multiple reasons for delays in the permitting of
seismic surveys offshore, but the most concerning and problematic
delays are due to difficulties obtaining MMPA incidental take
authorizations from the National Marine Fisheries Service (NMFS). When
the MMPA was enacted, it was never intended to regulate anthropogenic
sound, nor was it intended to require NMFS to regulate exploration and
development of our Nation's oil and gas resources. Recent primary
delays in the permitting of proposed geophysical surveys for the
Atlantic OCS stem from NMFS' inability to process Incidental Harassment
Authorizations (IHAs) and implement Incidental Take Rulemakings (ITRs)
in a reasonable, timely fashion--to a large extent because of vague and
ill-defined terms used in the MMPA, and lack of an enforceable
timeline. The necessary and sufficient conditions for obtaining an MMPA
authorization from NMFS are obscure and constantly changing without
sufficient notice or adequate review. These flaws are explained in more
detail under the next question.
One area that seems increasingly difficult for NMFS (and
applicants) to analyze is estimation of `Level A harassment' of marine
mammals--defined as something that ``has the potential to injure a
marine mammal or marine mammal stock in the wild'' and `Level B
harassment' of marine mammals--defined as something that ``has the
potential to disturb a marine mammal or marine mammal stock in the wild
by causing disruption of behavioral patterns, including, but not
limited to, migration, breathing, nursing, breeding, feeding, or
sheltering'' (emphasis added).
For many years, NMFS has worked to provide technical guidance for
assessing the effects of anthropogenic sound on marine mammal hearing
(NOAA Technical Memorandum NMFS-OPR-55) by providing acoustic sound
thresholds for Level A harassment--and revisions continue to this day.
Many delays in the Atlantic IHA review process were attributed to
uncertainty over application of a series of draft versions of this
technical acoustic guidance, even though a 2016 National Academy of
Sciences Panel recently reconfirmed that ``no scientific studies have
conclusively demonstrated a link between exposure to sound and adverse
effects on a marine mammal population.'' Implementing the final
guidance published in 2016 requires extensive modeling and analysis for
any given proposed activity, and arguably only a few sophisticated
companies in the world are capable of such a task. Further, NMFS will
be attempting to enact guidance on Level B harassment, something even
more difficult than measuring the potential for injury, or Level A
harassment.
Emblematic of a process that has been riddled with excessive
uncertainties, NMFS also stalled its review of Atlantic IHAs to
consider whether applicants should revise their submissions to include
an unpublished study from Duke University at the behest of certain
environmental advocacy organizations. NMFS requested applicants amend
their IHA applications to incorporate the study's hypothetical model
forecasts of marine mammal distribution under threat of further delays
in IHA, and subsequently permit, issuance.
Delays and excessive paperwork (by NMFS and applicants) for
carrying out seismic surveys, an activity never proven to harm marine
mammals, should not be subject to laborious modeling and evaluation
simply due to broad and vague terms surrounding `harassment' and the
agency's inability to follow statutory timelines.
1b. In your opinion, what steps can Congress or agencies take to
clear up these unnecessary delays in permitting while continuing to
ensure proper protections for marine mammals?
Answer. In the 35 years since passage of the MMPA, many advances in
technology and increased human activities offshore have developed,
including activities never contemplated by Congress. Additionally,
special interest groups opposed to certain activities have used the
regulatory and legal systems to exploit ambiguities in the law in order
to slow and block those actions they oppose such as exploration and
develop of offshore oil and gas.
Decades of regulation and litigation have exposed some significant
flaws in the MMPA. Fixing these flaws would increase regulatory
efficiency, decrease uncertainty, and ultimately benefit all
stakeholders and the implementing agencies.
The primary flaws stem from poorly written statutory language that
creates (1) ambiguity and uncertainty in the application of the MMPA's
legal standards, and (2) procedural inefficiency. Fixing some of the
most obvious flaws in the MMPA could result in tangible regulatory
benefits.
Congress can take steps to modernize the MMPA, bringing it back to
its original intent to truly and effectively protect marine mammal
populations. Specifically, streamlining the process for obtaining IHAs
or implementing ITRs. Further, terms used in the MMPA should be defined
more clearly so that the legal system is not left to make assumptions
on the meaning Congress intended. Some examples include, `Level B
Take', `small numbers', `negligible impact', `harassment' and `least
practicable impact'. Please see page 9 of my written testimony for
detailed recommendations on how Congress can modernize the MMPA. We
stand ready to assist you and your colleagues in Congress in bringing
the MMPA back in line with its original intent.
The agencies can and should also implement regulations and guidance
that provide more certainty for offshore activities, specifically
focusing on those areas that can meaningfully protect marine mammals
from threats identified by the best available science, and not
speculative impacts unproven by tangible, replicable, scientific
evidence. Preventing an offshore activity like seismic surveying with
no demonstrated adverse impact will have no beneficial effect to marine
mammal populations.
Question 2. I recently introduced a bill, the SEA Act (H.R. 3133),
to help correct some of the concerns you express in your testimony and
I want to thank you for supporting this effort. As you know, my bill
will clarify the permitting process, reducing ambiguity and creating
certainty in the application of the MMPA's legal standards and
procedural inefficiency. The SEA Act will provide a much-needed common-
sense approach to ensure that critical exploration and military
operations can move forward.
2a. Do you agree that the SEA Act will bring the MMPA back in line
with the original intent of Congress?
Answer. Thank you for your leadership in recognizing the need to
update and modernize the MMPA to better fit the 21st century. I agree,
the SEA Act will take necessary steps to begin to bring the MMPA back
in line with the original intent of Congress in protecting marine
mammal populations. By streamlining the process for obtaining IHAs for
activities that have little to no impact on marine mammals, the SEA Act
will ensure agencies and commercial interests are not needlessly
spending resources on approval of actions with no corresponding
environmental benefits. Further, the SEA Act begins to redefine
ambiguous terms and remove duplicative processes among agencies.
Section 3 of the SEA Act, removes redundancy between NMFS and the U.S.
Fish and Wildlife Service by recognizing there is no need for two
Federal agencies to complete reviews and approvals of offshore
activities where no impacts have been found.
2b. Would you agree that H.R. 3133 will ensure the permitting
decisions made by FWS and NMFS will [be] based on proven science as
opposed to being dictated by political whims?
Answer. IAGC fully supports Federal decisions being based on the
best available science and advocates for open and transparent decision-
making processes. This, however, does not mean that decisions should be
delayed when an agency is waiting for scientific research or specific
research that does not exist. The SEA Act will require NMFS (and FWS)
to make decisions on a strict timeline in adherence with the original
intent of the MMPA, removing any ambiguity over how long Federal
agencies can `sit' on applications.
To reiterate, more than five decades of worldwide seismic surveying
and scientific research indicate that the risk of injury to marine
mammals is extremely low, and currently there is no scientific evidence
demonstrating biologically significant negative impacts on marine life
populations.
As BOEM stated in its August 22, 2014 Science Note, ``To date,
there has been no documented scientific evidence of noise from air guns
used in geological and geophysical (G&G) seismic activities adversely
affecting marine animal populations or coastal communities. This
technology has been used for more than 30 years around the world. It is
still used in U.S. waters off of the Gulf of Mexico with no known
detrimental impact to marine animal populations or to commercial
fishing.''
Question 3. Your testimony mentions the role that advocacy groups
play in causing delays to the regulatory process under the MMPA through
litigation. The U.S. Navy has been unnecessarily and regularly
obstructed by legal actions from these groups as well.
3a. Would you say these practices are common during the permitting
process for most seismic surveyors?
Answer. While the industry has routinely applied for and
successfully received incidental take authorizations pursuant to the
MMPA covering geophysical and other exploration activities in the
Arctic OCS, by NMFS and the FWS on a project-by-project basis (i.e.,
incidental harassment authorizations) or through the issuance of ITRs
and related letters of authorization, almost every MMPA ITR issued for
Arctic oil and gas activities has been challenged by environmental
advocacy organizations. Specifically, various advocacy organizations
challenged the U.S. Fish & Wildlife Service's 2006 Beaufort Sea ITRs,
2008 Chukchi Sea ITRs, and 2013 Chukchi Sea ITRs. These lawsuits were
litigated in the Alaska Federal District Court and each lawsuit was
appealed to the Ninth Circuit Court of Appeals. The plaintiffs asserted
claims under the Administrative Procedure Act (APA) alleging violations
of the MMPA and other Federal environmental statutes. The most recent
lawsuit challenging the 2013 Chukchi ITR was an expressly admitted
attempt by advocacy organizations to block Shell's Chukchi Sea
exploration program. In every instance and on all counts, the
authorizations have been upheld by the courts.
In all three cases, neither the Alaska District Court nor the Ninth
Circuit found merit in any of the claims raised by the advocacy groups.
3b. What effect does this constant litigation have on the
regulatory process and overall offshore energy development?
Answer. The track record of MMPA ITR litigation in the Arctic
strongly supports the notion that advocacy groups have leveraged their
ability to challenge MMPA ITRs via the APA as a means to attempt to
block or impede oil and gas operations. Although these lawsuits have
cost the courts, agencies, and applicants substantial time and money,
they have accomplished no meaningful result (other than delay, as
intended by the advocacy groups) because, as the courts expressly held
on all counts, none of the claims raised had any merit.
In contrast with the recent politicized process for obtaining an
MMPA authorization in the Atlantic OCS, the past and existing approach
to implementing the MMPA in the Arctic has been relatively efficient,
thorough, effective, and approved by the courts. Yet, advocacy
organizations have continued to misuse the APA's litigation provisions
to attempt--unsuccessfully--to impede Arctic oil and gas activities.
The misguided intentions of these organizations have not only failed in
court, but the allegations upon which they are supposedly based have
not borne out in the scientific record.
After decades of oil and gas exploration activities in the Arctic
and Gulf of Mexico, there is no information demonstrating that any of
the activities have had anything more than a negligible impact on
marine mammal. This finding has been repeatedly made by Federal agency
scientists in numerous public documents.
3c. What effect does it have on the Navy doing their job to protect
Americans?
Answer. The U.S. Navy has also been unnecessarily and regularly
obstructed by legal actions taken against them by various environmental
groups on challenges to MMPA authorizations for national defense
training exercises and activities, costing the American taxpayer
millions of dollars in legal defense funds. For example, after years of
legal proceedings, the Navy was forced to revisit its mitigation
strategy related to its plans to use a new submarine detection system,
known as Low Frequency Active Sonar in order to comply a court's
interpretation of the MMPA.
The regulatory hurdles and requirements that come with complying
with the MMPA, no doubt, have impacted the U.S. Navy's budget, costing
in dollars or man hours, including breakdowns for R&D, NEPA document
preparation, mitigations like observers or PAM, and so on. While I
cannot speak to whether these requirements impact the Navy as far as
doing their job to protect Americans, it is certainly impacting their
budget.
Question 4. It took over 700 days for the previous administration
to make a decision on permitting, and ultimately deny, a permit to
conduct seismic surveys to support potential oil and gas development in
the Atlantic outer-continental shelf.
4a. How long did it take to provide a similar permit to conduct
seismic surveys to support other activities, such as offshore
windfarms, in the same region?
Answer. There are multiple uses for seismic and other geophysical
surveys offshore including the siting for wind facilities. Some of the
recent approvals for geophysical operations, on the Atlantic OCS, for
offshore windfarms have taken as little as 2 months and we know of no
example where NMFS has taken upward of 700 days to issue an
authorization for any offshore activity.
As stated in my written testimony, seismic surveys for `scientific
research' have been conducted fairly regularly in the Atlantic OCS, in
addition to other geophysical surveys used to characterize the seabed
and subsurface for suitability of offshore wind energy facilities. One
recent `scientific research' survey collected data along 3,000 miles of
trackline in the area of the Outer Banks, of North Carolina, between
September and October 2014. NMFS issued an IHA for this survey, which
used the same technology that is used for oil and gas exploration, in
less than 7 months from the date the IHA was requested. Another recent
research seismic survey to record sea level change and its impact on
the coastline was completed in July 2015 off the New Jersey coast.
4b. Are you using the same technology to support offshore windfarms
as to support oil and gas development?
Answer. While the scale of a given seismic operation can be
different depending on the given project, seismic and other geophysical
sources are also used for windfarm siting and development.
Question 5. Many questions were posed regarding seismic operations
during the hearing. Is there any additional information you wish to
provide the Committee about seismic operations to more fully address
those questions?
Representative Soto inquired:
Question/Statement: Regarding seismic in the Atlantic; some of the
estimates of 130,000 deaths of whales and dolphins as well as a 78
percent decline in marine fish why were the [Atlantic] applications
rejected?
Answer in response to reported impacts on marine mammals: Much has
been made by environmental groups and the media of the estimate for
138,000 Level A (potentially injurious) ``takes'' in the BOEM's
programmatic environmental impact statement addressing the potential
effects of seismic surveys in the Atlantic OCS. The concept of ``take''
is unique to U.S. laws, particularly, the MMPA. Enacted in the early
1970s to protect species that were on the verge of extinction from over
hunting and over fishing, it defined ``take'' to mean hunt, harass,
capture or kill. Unfortunately, it has evolved into something far
broader, and far tamer, in current sound and marine life regulatory
issues, which causes confusion because the legal definition of take and
the common-sense definition are so far apart.
In its March 9, 2015 Science Note, the BOEM itself, says, ``This
characterization of our conclusion, however, is not accurate; that is
actually not what we estimate.'' The 138,000 does not reflect actual
expectation of the number of mammals that will be injured, and
certainly not killed.
While all survey vessels employ extensive means to detect
and prevent potential injurious and behavioral effects, the
effects of mitigation are not included in the BOEM estimate
and would likely even further reduce the actual risk to
negligible. In fact, the BOEM in its March 2015 Science
Notes states the number of modeled ``takes'' in the PEIS is
grossly over-estimated and does not take into account
mitigation measures that will be employed. With mitigations
in place, that estimate is ``in far excess of those takes''
they actually anticipate.
Additional conservative assumptions are made about the
loudness of the sound source, how far it will travel, and
the level of exposure required to approach injurious
effect, as well as other variables like animal abundance
and responses to sound. Taken individually these
`precautionary' assumptions might be considered
``reasonable'' caution in the face of uncertainty about
actual source levels, thresholds to effect and propagation
of the sound. But when combined in a model, the precautions
interact multiplicatively, turning what might seem like
reasonable conservatism into literally astronomical
overestimates that are thousands or even millions of times
greater than the most likely result. As a consequence of
unaccounted-for precautions in the document, its
predictions are literally hundreds of thousands to millions
of times over the actual risk. The actual risk most likely
ranges between zero and ten, at most with no mortality or
risk of serious injury. It is unfortunate that seemingly
reasonable practices of precaution can be overused to the
point of such grossly inaccurate over-predictions of risk,
and we are working to help correct these mathematical
anomalies in future risk assessment documents.
The bottom line is there are no documented injuries,
deaths, or significant disturbances from seismic activities
in the many decades that seismic has been in regular use in
the Gulf and elsewhere around the world. All of these
considerations do not mean that we don't appreciate that
there may be an undiscovered potential that sound from
seismic surveys could have adverse environmental
consequences, and we remain committed to taking expensive
and elaborate measures to reduce the risk of any such
potential, but as-yet undiscovered, effects. That is why we
fund independent credible scientific research to
investigate any reasonable claims of undiscovered effects.
Answer in response to the rejected permits inquiry: Bureau of Ocean
Energy Management's (``BOEM'') unprecedented decision, dated January 6,
2017, to deny all six pending applications for seismic surveying of the
Atlantic Outer Continental Shelf. BOEM's political decision under a
departing Obama administration disregarded the rule of law by ignoring
its own environmental impact analyses and conclusions supporting the
permitting of seismic surveys in the Atlantic OCS, and undermined the
primary purpose of the Outer Continental Shelf Lands Act (``OCSLA'') by
preventing the acquisition of data critical to assessing the Nation's
oil and gas reserves.
BOEM's previous decision was fundamentally at odds with OCSLA's
mandate to enable the ``expeditious, orderly development of the oil and
gas resources of the OCS, with due consideration for the impact of that
development'' and to ``make [OCS] resources available to meet the
Nation's energy needs as rapidly as possible.'' See 43 U.S.C.
Sec. Sec. 1332, 1344, 1802(2)(A) (emphasis added). As explained in the
enclosed memorandum, the Decision is also inconsistent with OCSLA's
requirements applicable to exploration permitting, and fails to meet
basic and well-established standards applicable to Federal agency
decision making.
BOEM's denial contradicted what the agency has repeatedly stated:
that there is no scientific evidence that sound from seismic survey
activity impacts marine life or the environment. On July 23, 2014, BOEM
published its Record of Decision (ROD) for Proposed Geological and
Geophysical Activities in the Mid- and South Atlantic, culminating a 4-
year review evaluating the assumed environmental effects of seismic and
other geological and geophysical (G&G) survey activities proposed on
the Atlantic coast. The ROD recommended authorization of exploration
activities on the Atlantic OCS and formally triggered BOEM's
consideration of permits for G&G activities. Notwithstanding the ROD's
recommended mitigation measures that are without any factual or
scientific support and are overly restrictive, when compared to current
practices that have been successfully applied by the geophysical
industry globally, IAGC members still filed applications for G&G
permits. Subsequently, on January 6, BOEM denied six pending
applications after languishing for over 2 years.
Congress never intended that the exploration of the OCS--which is
critical to the ``expeditious and orderly'' development of the OCS--
could be halted entirely based upon a political administration's
unsupported assessment of the ``need'' for G&G data or a political
desire to prevent the ``possibility'' of speculative environmental
effects that have never before been observed by the agency.
We believe BOEM made the correct decision in overturning the
previous administration's political decision to deny the permits and
applaud the reversal to reinstate consideration of those permits.
Question/Statement: I have yet to be given one Member of Congress
to date that actually supports opening up the Atlantic to seismic
testing. Have you received any Members of Congress supporting this? Is
it close to 100 that support it? The vast majority of members along the
east coast oppose it.
In addition to my response during the hearing that many Members of
Congress have weighed in supporting seismic survey activities, I would
like to note a vote taken last Congress where more than 200 members of
the House of Representatives voted in support of offshore seismic
activities. During consideration of H.R. 5538, the FY2017 Interior
Appropriations bill on July 13, 2016, Representative Murphy of Florida
offered an amendment to prevent any Federal funding of seismic activity
offshore Florida. The amendment failed 231-197, disproving
Representative Soto's assertion that Congress is unsupportive of
seismic activities offshore.
Representative Huffman inquired:
Question/Statement: ``. . . the sound from air gun activities which
in fact is an enormous and obvious impact, we're talking about
something that a blast that is one of the loudest anthropogenic sounds
in the entire ocean that gets repeated every 10 to 12 seconds for days,
weeks or even months at a time, it is similar in its decibel level to
this air gun (airhorn) that I have right here, to put that in context
this air gun (airhorn) has an output of about 120 decibels, it can be
heard up to a mile away, it's only a little bit less loud than a jet
engine at takeoff . . . it's also important to remember that water
transmits sound differently than air, its actually more efficient . . .
a significantly loud and frequent blast of noise, I think, would be a
distraction from our work, wouldn't you agree?''
Answer/response: While there were many misrepresentations and false
statements assumed by Representative Huffman in his portrayal of
seismic surveys and operations, the following information provides
facts on seismic surveys and the sound they produce.
Specifics on how seismic sources work: Seismic air sources are the
cleanest, most energy efficient means of putting sound into the
underlying rock to generate geological imagery.
Seismic survey vessels use arrays of different sized air chambers
towed 200 to 300 meters behind the vessel and approximately 5 to 10
meters below the sea surface to generate sound pulses. As the vessel
travels forward the compressed air is released from the array at a
specific time and distance interval, usually 10-20 seconds and 25-50
meters apart. The predominantly low-frequency energy travels downwards
and reflects or refracts off the layers of rock beneath the ocean
floor. The returning sound waves are detected and recorded by
hydrophones that are spaced along a series of cables that are towed
behind the survey vessel.
In addition, the sound source array is engineered to direct most of
its energy downward, rather than laterally, which the National Marine
Fisheries Service has determined is in itself a mitigation measure. For
an array with a nominal level of 240 dB peak pressure, the maximum
measured downward sound level will typically be 10-15 dB less than
nominal, since the individual sources are separate and will lose some
energy before they come together in a single sound wave front at some
distance below the array. Since the array is flat (planar) the sound
from the individual elements does not synchronize as it does in the
downward direction, and another 10-15 dB is generally lost. Sitting
directly below the array the most one would hear might be 225-230 dB,
but to the side the highest received levels would be even lower, 210-
220 dB, even though the ``nominal'' source level is stated as 240 dB.
From the immediate vicinity of the array the sound takes multiple
paths and the sound field can be quite complex. But it will never have
more energy than it started with, and as a general rule of thumb tends
to halve with each doubling of distance. Think of the skin of a balloon
or perimeter of a disk, thinning as it spreads over a larger area in
three dimensions. Within relatively short distances the sound will
attenuate to barely audible levels.
Ambient noise levels in the ocean are generally 80-90 dB, at the
low frequencies produced by seismic (frequencies below 200 Hz).
In response to sound propagation in water versus air and comparison
to a jet engine: Sound from a seismic array is not as intense as one
jet, and each sound pulse lasts only a fraction of a second.
Sounds in water and sounds in air are not comparable
because the medium propagating the sound affects its energy
and effects. In fact, the units used to discuss sound in
water versus air are different, much like if one was to
compare temperature but forget to specify whether it's
degree Celsius versus degree Fahrenheit. Taking two numbers
from two different media and comparing them is misleading
and does not offer a realistic measure of the perception of
the sound by the listener, especially when the listeners
have very different hearing abilities; a given sound heard
by a dolphin, whale, dog or human would not be perceived in
the same way.
Sound is expressed using a logarithmic scale. So, speaking
in a normal voice is literally millions of times ``louder''
than a whisper in terms of sound pressure or energy. Using
expressions like, ``This sound is 100,000 times louder than
that sound'' is therefore misleading and untrue, especially
when comparing sounds in water with sounds in air.
In response to the comparison of seismic sources to an airhorn:
Product claims for the airhorns indicate sound levels around 112-120 dB
(re 20 microPascal, the in-air scale that differs from the underwater
scale). Since the seismic air source is designed for a very different
purpose it turns out to produce sound that is mostly below the range of
human hearing, barely perceptible and not at all annoying. What is
louder than an air horn: clapping your hands. A firm handclap will
produce 130 dB versus a max of 120 dB for the air horn. And like a
seismic source, the hand clap only lasts a fraction of second, which is
why hand clapping and seismic source sounds just don't sound as loud to
us as an airhorn.
The instantaneous peak pressure of a hand clap or seismic source
may be greater than the airhorn but doesn't go on long enough to
generate the mechanical push the ear needs, and so the clapping
registers as weaker than it really is physically. Sounds need to be
more than about two-tenths of a second long in order to be heard as
loud as they really are in terms of physical amplitude.
There is also a difference in how the two sources produce sound.
Seismic sources just release the air in a big round bubble. The bubble
pushes on the water with some oscillations as the bubble rises to the
surface. In contrast airhorns pass the stream of compressed gas over a
diaphragm like the reed in a saxophone and it is the vibration of the
reed that you hear, further amplified by the shape of the horn that the
sound comes out of. The sound from the escaping gas itself is a faint
hiss that is drowned out by its activation of a louder sound source,
the reed and horn, just like a saxophone or clarinet. The gas in the
airhorn is a ``motor'' to activate the sound source and is not the
actual source itself as it is in the seismic source.
It is simply inaccurate and misleading to attempt to compare an
airhorn to a seismic source and only leads to confusion.
Question/Statement: In July of 2016 NOAA completed its guidance for
assessing the effects of anthropogenic sound on marine mammals, this
underwent an internal review, three external peer reviews, three public
comment periods and informal input from partners. Has the science
changed so profoundly in the last 12 months that we've got to review
that guidance now?
Answer/response: I would direct the Congressman to my written
testimony regarding the need for further review of the acoustic
guidelines where I stated:
After completing a set of new acoustic guidelines in July 2015,
complete with external expert review and an extended public comment
period, NMFS again failed to implement new guidelines. Then
unexpectedly on March 16, 2016, NMFS released a third draft of proposed
revised acoustic guidelines. The third draft did not receive external
expert peer review before it was sent to the public and NMFS provided
for only a 14-day public comment period while inexplicably denying all
reasonable extension requests. Within the short time period allowed for
review, the experts within the seismic industry concluded that there
are egregious errors in how NMFS calculated sound impacts on marine
mammals. In an apparent attempt to appease special interest groups
inside and outside the agency, NMFS created a biologically unrealistic
`precautionary' large whale hearing function and selectively removed
data from the large whale and seal hearing literature to better support
a modified hearing curve that specifically targeted low frequency sound
sources like seismic survey sounds. The guidance was finalized in the
fall of 2016 with only minor changes and included a `short-cut' work-
around purposefully designed to be overly cautious.
IAGC applauded inclusion of the acoustic guidelines in the
President's Executive Order earlier this year and will work closely
with the new Administration to ensure the guidance is amended to
reflect the best and accurate scientific information. Currently,
however, NMFS is using the flawed acoustic guidance to (over)estimate
the amount of takes that may be authorized by the Atlantic IHAs. NMFS's
inability to issue new acoustic guidance on a timely or straightforward
basis has resulted in substantial additional delay.
______
Mr. Westerman. Thank you, Ms. Martin. Again, I would like
to thank all the witnesses for being here today, and for your
testimony.
I would also like to remind Members that the Committee's
Rule 3(d) imposes a 5-minute limit on questions.
To begin questions, I will now recognize myself for 5
minutes.
Mr. Loveday, you described in your testimony how each
Federal agency has responsibilities under Section 106 of the
NHPA to identify sites included on or eligible to be included
on the National Register. Can you go into a little bit more
detail and describe how agencies actually proceed to identify
all these properties, and what kind of efforts that entails?
Dr. Loveday. Mr. Chairman, members of the Committee, under
the law and the rules, as laid out in 36 CFR 800--and many
individual agencies also have their own rules for governance
actions here.
The agency, before it does something on its own--that is,
renovates a building, for example, that it owns, if it is the
Veterans Administration, or issues a permit or a license if it
is the FCC, is to make a determination of whether or not that
action will have an adverse effect on historic sites that are
on or eligible for the National Register.
The agencies typically will--and it varies from agency to
agency, how much effort they put into this--the agencies
typically will do a survey of the area, or a survey of the site
that the action is taking place on or in. Frequently, they will
contract with a cultural resource management firm--although
they can do it with their own staff--have a study done, and use
that study, then, to make the determination of whether or not
their actions have an adverse effect.
Then, of course, doing the study they take into account
public comments, and they take into account the comments of the
Tribal Historic Preservation Officers and the State Historic
Preservation Officers, and the local government that is
responsible for land management issues in that area.
If there is no adverse effect, the agency proceeds. If
there is an adverse effect, then it consults with the Advisory
Council on Historic Preservation, and prepares, often, a
Memorandum of Agreement that spells out how it will minimize
the adverse effect; or it changes the project so as to
eliminate or reduce the adverse effect; or it abandons the
project entirely.
Mr. Westerman. That sounds like quite a time-consuming
endeavor. I know that there is a historic district in my
hometown of Hot Springs, Arkansas, and there are a lot of
projects that people are talking about doing there to rebuild
the downtown. But how long can some of this Section 106
consultation process take?
Dr. Loveday. Mr. Chairman, members of the Committee, the
process varies, of course, depending on the complexity of the
undertaking. It can take a few weeks. I don't know of any that
takes less than a few weeks. Or it can take several months.
The longest one that I am aware of is yet to be resolved,
at least to my knowledge; it goes back to 1988, involving a
site in upstate New York. That is extreme. Most of the projects
that I have worked on over the years will get resolved, from
beginning to end, in a few months, 3 or 4 months.
The State Historic Preservation Officers and, in theory,
the Tribal Preservation Officers are required to make their
comments to the agency within 30 days. And there are deadlines
set for ACHP, the Advisory Council, to make their comments,
although there are work-arounds on all of those deadlines, so
that they often get extended because they need more
information, or the information wasn't adequate, or other
factors.
So, to answer your question, it is measured in terms of
months, in most cases. It can be longer, it can be shorter. The
shortest one I have ever worked on had to do with a project in
Chicago, and it took 3 weeks.
Mr. Westerman. I know from my previous experience doing
engineering work that delays in permits, it may be just a few
months, it may be years, but when you delay a project because
of a permit, you are tying up financing, you are affecting the
business model. And a lot of times you would see projects
cancel because there wasn't enough time.
Can you think of instances where you have seen projects
that didn't go through because of delays in permits or project
approval?
Dr. Loveday. I would have to search my memory to come up
with one.
Mr. Westerman. In 5 seconds.
Dr. Loveday. But let me suggest to you that the issue here
is not so much often they don't go through, it is just they get
delayed.
Mr. Westerman. And my time has expired, so I will now
recognize Mr. McEachin for 5 minutes.
Mr. McEachin. Thank you, Mr. Chairman.
Ms. Leiter, though most hearings in this Subcommittee focus
on the administration that left the building 6 months ago, I
wanted to ask you about this Administration. I am particularly
interested in how it might be in conflict with the intent of
natural resources laws.
The Trump administration has used the undefined term
``energy dominance'' as a way to justify tremendous expansion
of energy development on public lands. As part of this, they
seemingly express the belief that multiple use means that all
uses should be allowed on all lands. More specifically, they
seem to claim that, at the very least, oil and gas drilling
should be an allowable use on all multiple-use lands.
Is this consistent with how the Federal Land Policy and
Management Act defines multiple use?
Ms. Leiter. Thank you for the question. No. It isn't
consistent. As I understand it, the multiple-use, sustained
yield mandate identifies a list of competing uses that should
be available on the public lands. It does not specify that all
uses should be available on all lands. And, frankly, that is
physically impossible. Even just taking industrial uses,
industrial uses of the surface of the lands often conflict with
each other.
Balancing decisions necessarily have to be made. For
example, potash and oil and gas cannot co-exist on the surface
of the same lands. So, one of the activities that the Bureau of
Land Management in that case has to undertake is to evaluate
which use is more suitable on a particular parcel of land. And
that evaluation looks at what the proposed uses are, what the
interests of the local community and state are, what the
potential impacts are, what the availability of mitigation
efforts might be, et cetera. And it is always a super-difficult
decision and a balance, but it is just not even physically
possible to manage for all those uses on every piece of land.
Mr. McEachin. Thank you. In his first 2 months on the job,
Secretary Zinke has had more meetings with oil and gas industry
executives than representatives of any other type of interest
group. Could you tell us the implications of this imbalance?
Could you tell us what the implications of this imbalance are,
in terms of the legitimacy of DOI decisions regarding the use
of public resources? And what are the implications of this
imbalance for the DOI's implementation of FLPMA?
Ms. Leiter. Thank you for that question, as well. Again,
these decisions are very difficult. There are factors on the
ground in particular areas that, no matter what your interests
are ahead, you may not be aware of. So, it is very important
that the agencies be hearing from stakeholders in particular
areas, who understand what the implications of the decision
will be for that community.
And the Administrative Procedure Act requires that the
agency go through an open and transparent and public
participatory process to make these decisions that involves a
notice to the affected community, hearing comments from
everyone in the affected community. Sometimes public hearings
are specifically required. Sometimes individual meetings with
tribes are specifically required. The purpose of all of that is
to ensure that the agency is getting a balanced set of views
and can reach a reasonable decision and undertake a reasonable
decision-making process in reaching the decision about how to
prioritize particular lands in particular cases.
So, again, if they are hearing from only one set of
stakeholders, they are inherently getting a biased view, and
there are factors that they are likely to miss, which might
render the decision arbitrary under the Administrative
Procedure Act.
Mr. McEachin. Thank you for that. And, as quickly as you
can, it is my understanding that you have offered a stark
warning to the special interest beneficiaries like fossil fuel
companies of this Administration's largesse who are
aggressively pushing their agenda. In about 30 seconds, can you
talk about that warning?
Ms. Leiter. I am sorry, I couldn't hear the last part of
the question.
Mr. McEachin. Can you talk about that warning,
understanding that we only have about 30 seconds left?
Ms. Leiter. I think the question was about the evidence
that they are hearing specifically from a biased set of
interests. Just to give one example, in evaluating the Bears
Ears National Monument that President Obama designated and
President Trump is reviewing, Secretary Jewell took a tour
across 800 miles of Utah canyon lands with press in tow, held a
large, public meeting, met with industry, et cetera. The record
does not reflect that Secretary Zinke had as much input from a
range of----
Mr. Westerman. The gentleman's time has expired. I now
recognize the gentlelady from American Samoa, Mrs. Radewagen.
Mrs. Radewagen. Thank you, Mr. Chairman and Ranking Member.
I want to welcome the panel and thank you for appearing today.
Ms. Brandt, you mention in your testimony that once the
application for the listing of your neighborhood on the
National Register of Historic Places was filed with the State
Historic Preservation Office, homeowners were notified of the
nomination and process for objecting. Do you feel that this
notice was adequate to inform property owners of the
implications of this designation?
Ms. Brandt. Thank you for the question. I don't think that
that notice reaches all of the neighbors in our neighborhood.
Actually, the city of Portland sent out a notice to all of the
residents that would be in the historic district. SHPO
acknowledged letters of objection that came in to those that
submitted them. I went out and personally got letters of
objection from my neighbors, and the last one I received was
from a gentleman that lives half the year in Nevada, had no
idea his house was surveyed, had no idea whether it was
considered historic or not, knew nothing about what was going
on in our neighborhood.
So, nobody really assumed responsibility. The State Office
of Historic Preservation sets up a website that has good
information. The neighborhood association did send out
information and establish a website, as did Keep Eastmoreland
Free. I think I was looking from the very beginning for notice
on both sides that would give me the information I needed to
make a good decision.
Mrs. Radewagen. Thank you. That sounds like a no.
Ms. Brandt. No.
Mrs. Radewagen. What changes to this notification or
oversight of the process on the Federal level would you suggest
to better inform homeowners of the effects of listing and their
rights under the NEPA statute and regulations?
Ms. Brandt. I personally had to do extensive legal research
to understand even the basic elements of the Federal process.
And I really feel that no one should have to hire lawyers and
lobbyists to prevent an honorary designation of their house,
let alone seek an Act of Congress.
It would have been helpful--you enter into this process in
supposed consent of the historic district. But individual
homeowners have to seek out the information to understand the
Federal regulations and understand the state and city laws that
support that. So, what changes would I like to be seen? I would
like to see the onus put on the part of the individual that
seeks the designation, rather than those who oppose it.
Mrs. Radewagen. Thank you.
Ms. Brandt. In addition to that, I would like to see the
districts be smaller in scale. I would like to see the 45-day
period be longer, so that the national preservation area could
actually do a more intensive survey of the information that is
presented.
Mrs. Radewagen. It seems that this National Register
designation process was fraught with problems and confusion in
the instance you have described. Do you believe that large
numbers of properties were intended to be designated as massive
districts? That would be a yes-or-no question, I think.
Ms. Brandt. No.
Mrs. Radewagen. My time is so short. Thank you.
Ms. Brandt. Not in our case.
Mrs. Radewagen. Do you believe the misapplication of the
process to large districts contributes to some of the problems
that State Historic Preservation Offices have in implementing
this law?
Ms. Brandt. Yes, in our case.
Mrs. Radewagen. Ms. Brandt, as you mentioned in your
testimony, could you discuss for us how the National Historic
Preservation Act is often used to bypass local processes and
decision making about protections for potential historic sites
and districts?
Ms. Brandt. I think in our case, in Eastmoreland, the
neighborhood association made the decision to hire a consultant
to package and propose the district. And I think the reason
they did that was to limit demolitions in our neighborhood, and
to restrict housing options.
The city of Portland has a re-zoning, called the RIP, going
on right now that probably will be law in 2018. And that will
actually re-zone what people can build, within scale, on their
lots. So, I think our neighborhood, the----
Mr. Westerman. The gentlelady's time has expired. We are
going to move on to more Members' questions. We will go in the
order that you arrived at the Committee.
The Chair now recognizes the gentleman from Florida, Mr.
Soto.
Mr. Soto. Thank you, Mr. Chairman. I prefer to focus my
comments on the attempted plan to have seismic airgun testing
in the Atlantic. As many of you may know, we had over 100
Members of Congress from both parties, representing from Maine
down to Florida, including 21 Members from Florida--11
Democrats, 10 Republicans--oppose this. I have yet to be given
one Member of Congress to date that actually supports opening
up the Atlantic to seismic testing.
We are dealing with a $95 billion economy on the Atlantic
Coast, 1.4 million jobs. And some of the estimates have been
that it would lead to 138,000 estimated deaths of whales and
dolphins, as well as a 78 percent decline in reef fish.
It looks like in July of 2014, the Obama administration
originally approved seismic testing, but then rejected the
application. Ms. Leiter, why were the applications ultimately
rejected?
Ms. Leiter. So, sorry, that decision actually pre-dates me,
so I am not familiar with the details of why it was rejected.
But my understanding is that the administration wanted more
time to look at those impacts that you alluded to. There is
extensive science on both sides. It is a very complicated
decision, and I don't think anybody was sitting on anything, I
think they were looking closely at all of the science.
Mr. Soto. It looks like there is some debate over whether
BOEM has ever stated that there is scientific evidence that
this would affect mammals. In that decision, that is where I am
getting this statistic, that 138,000 estimated deaths of whales
and dolphins came from.
So, is it true that we have scientific evidence or not
regarding seismic testing affecting mammals?
Ms. Leiter. Well, as I said, the decision pre-dates me, but
a group of marine mammal scientists came in to speak to BOEM
while I was there. They explained that part of the issue is
that, as with people, no one is testing seismic airguns on a
whale, so it is all circumstantial evidence of what the impacts
are.
We see that whales avoid areas where it is happening. There
was a recent study, I think just published last month in the
journal, Nature, a peer-reviewed study, that suggests that
seismic activity kills the zooplankton, the small marine
plankton that are the whales' primary source of food. So, there
is substantial, but I guess I would call it circumstantial,
evidence that this has a negative and harmful impact on whales.
Mr. Soto. Ms. Martin, you had suggested in your written
testimony that there was no documented scientific evidence of
that. Is that still your opinion here today, after the 2014
decision, and then the 2017 rejection of those applications?
Ms. Martin. Congressman, thank you for the question. Yes,
that is still my opinion, and it also reflects the findings
from the 2016 panel of the National Academy of Sciences, that
there are no scientific studies that have conclusively
demonstrated a link between exposure to sound and adverse
effects on marine mammal populations.
Mr. Soto. But you are a geologist, not a biologist, is that
correct?
Ms. Martin. I am actually an attorney.
Mr. Soto. OK. I am, too. That is not going to help today.
[Laughter.]
Mr. Soto. Have you received any Members of Congress
supporting the position of the geologists on this from the East
Coast? Any?
Ms. Martin. Certainly. There have been several letters of
support from Congress over this lengthy process pursuing
seismic surveys.
Mr. Soto. Is it close to 100 that oppose it?
Ms. Martin. I could not recall off the top of my head how
many we have in support, but there have been numerous letters
of support and statements of support.
Mr. Soto. I want to take this moment to remind the
Committee once again we are dealing with a giant tourism,
fishing economy on the East Coast, one that would make any
small economic benefit of trying to open this up for oil
drilling be very short-sighted, and really put in jeopardy the
economy here in Florida, as well as throughout the East Coast.
As we look at these short-sighted ideas of opening up
Atlantic drilling, we need to really understand what is at
risk, what is at stake, and the vast majority of Members on the
East Coast absolutely, unequivocally, oppose this. I yield
back.
Mr. Westerman. The gentleman yields back. The Chair now
recognizes the gentlelady from Puerto Rico, Miss Gonzalez, for
5 minutes.
Miss Gonzalez-Colon. Thank you, Mr. Chairman, and good
morning to everybody. Thank you for your testimony, Mr.
Loveday. I have two questions here.
In my district, Puerto Rico is home for the Arecibo
Observatory, which is listed under the National Register of
Historic Places. And the observatory is undergoing a Section
106 process initiated by the National Science Foundation. The
National Science Foundation seeks to divest the observatory. I
have some concerns about the complexities of the process that
is required to alter a scientific installation listed on the
National Register.
My question will be what effect, in your experience, does
Section 106 have on the decision-making process of private and
public entities that might seek to change or upgrade scientific
installations that are listed on the National Register, and are
still in operation?
Dr. Loveday. If I understand your question, you are asking
what effect does a nomination or a listing on the Register have
on upgrades or changes to the property. Is that correct?
Miss Gonzalez-Colon. In the process, in the decision-making
process. The installation is already in the National Register,
so if we were going to make changes, and it is still in
operation, what kind of impact in decision making might that
section have in public and private institutions?
Dr. Loveday. Well, first of all, the National Register
designation, or actual nomination, only applies if there is a
Federal undertaking. That is the first thing. In theory, it has
no effect on the private property owner's ability to change or
alter the property.
Now, having said that, a number of states, a number of
localities essentially link local laws to the National Historic
Preservation Act, either directly, as in the case of Oregon, or
indirectly, by using the same language that appears in the
Federal law.
So, in reality, the rules and regulations developed for
National Register sites get transferred to local sites. That is
the first thing.
The second thing is, keep in mind that if there is a
Federal undertaking in the vicinity of a property, although it
may not touch the property itself, but a Federal undertaking in
the vicinity of the property, that requires an agency to review
that, the agency can, under 106, make a decision about what it
can or cannot, what its licensee or grantee cannot do.
Miss Gonzalez-Colon. Thank you. And facilitating
infrastructure improvement is a priority for Congress and this
Administration. How can the National Historic Preservation Act
process be streamlined to help deploy critical infrastructure
updates?
Dr. Loveday. Well, the most important thing, I think, that
could be done is go back to the original intent of the Act,
which is to say that 106 applies only--only--to sites that are
listed on the National Register.
In other words, get away from this notion of having sites
that are eligible for the Register, but nobody knows they are
eligible for the Register until the undertaking is underway,
crop up and interfere with the process of doing the
infrastructure improvement. That would be the first thing.
The second thing is, institute rules that keep Section 106
from being used to promote other agendas. It is well known that
106 is used exclusively by people who have very little interest
in historic preservation, but they want to block, change, or
stop a project for other reasons, so they will use the 106 as a
procedural thing to stop the project until they could build
support in other ways, or simply slow it down so it becomes so
expensive that people will abandon a project.
Miss Gonzalez-Colon. And final question, I understand that
the keeper of the National Register has an independent
authority to deem properties, including private properties,
eligible for inclusion on the National Register. What processes
exist for private landowners to express their concerns with
such a determination?
Dr. Loveday. I am sorry, I didn't hear the question.
Miss Gonzalez-Colon. Again, the keeper of the National
Register has an independent authority to deem properties,
including private properties, eligible for inclusion on the
National Register. What processes exist for private
landowners----
Mr. Westerman. The gentlelady's time has expired.
Miss Gonzalez-Colon. I will submit it in writing, then, my
question.
Mr. Westerman. All right.
Miss Gonzalez-Colon. Thank you, and I yield back.
Mr. Westerman. We will move on. The Chair now recognizes
the gentleman from the 1st District of Missouri, Mr. Clay, for
5 minutes.
Mr. Clay. Thank you, Mr. Chairman, and thank the witnesses
for participating in this hearing.
Ms. Leiter, as you mentioned in your testimony, this
Administration has solicited feedback from various industries
about which safeguards of our health and the environment should
be attacked. I will note that my colleagues on this
Subcommittee are following suit.
The former Chairman and Vice Chairman sent letters on May
9, 2017, to nearly 50 trade associations and companies,
soliciting feedback on ``burdensome government regulations or
processes under the Subcommittee's jurisdiction.'' None were
sent to citizen environmental groups or the public health
community.
How does that kind of lopsided solicitation for feedback
decrease transparency?
Ms. Leiter. Thank you for the question. I think the
solicitation of input is a very positive thing. The concern
arises when the solicitation is one-sided, so that other
interests cannot figure out how to weigh in on the question
that is being asked.
So, in the example of the regulatory reform request for
comments, the Federal Register notice lays out that the
Administration is looking for, as you said, identification of
burdensome regulations, regulations that are ineffective,
regulations whose costs, in the view of the commenter, exceed
their benefits.
It is very hard, as someone who supports public health
regulations, supports environmental regulation, et cetera, to
figure out what the targets are likely to be, and how best to
defend against the claim that those targets are burdensome.
So, the request for comments, essentially, gives industry a
checklist of ways to identify regulations as burdensome, but
does not similarly give regulatory beneficiaries any indication
of what the targets are likely to be, or how to respond.
Mr. Clay. So, really, there is a lack of balance here, as
far as what works appropriately to protect the environment, to
protect health, versus what burdens are on industry.
Ms. Leiter. Right. I mean the Administration is likely to
hear that these numerous regulations are burdensome because, by
definition, regulations do burden someone. So, someone is going
to come in and say almost every regulation is burdensome in
some way. But they are not going to hear from the corresponding
beneficiaries who say, OK, that is a burden, but that is a
burden that is forcing the industry to internalize a set of
costs that were otherwise being imposed on our community.
Mr. Clay. I see. Ms. Leiter, Ms. Martin stated in her
testimony that ``advocacy organizations have continued to
misuse the APA's litigation provisions to attempt
unsuccessfully to impede Arctic oil and gas activities,'' and
that it is necessary to reduce ``the ability for outside
special interest groups to obstruct energy exploration'' to
ensure continued development.
Ms. Leiter, during your time as Deputy Assistant Secretary
for Land and Minerals at the Interior from August 2015 to
January 2017, did you find that advocacy organizations misused
the Administrative Procedure Act litigation provisions?
Ms. Leiter. Thank you for the question. I have several
responses to that. The first is that advocacy groups tend to
sue more in what they view as disfavorable administrations, and
industry groups tend to sue more in what they view as
disfavorable administrations. So, there is sort of a shifting
balance.
My understanding is that the numbers overall reflect that
industry sues over natural resource policy more often than
NGOs, but I have not seen published statistics on that. I have
just seen an informal study.
But the bigger point I would make is that if the lawsuit is
successful, then an impartial judge, in theory, has determined
that the agency did over-reach. If the lawsuit is unsuccessful,
then an impartial judge has determined that the agency did not
over-reach. But asking a judge to make that determination is
not a misuse of our Administrative Procedure Act, it is merely
a request for input.
Mr. Westerman. The gentleman's time has expired.
Ms. Leiter. Sorry.
Mr. Clay. Thank you, I yield back.
Mr. Westerman. Move on to the next questions from the
gentleman from the 2nd District of California, Mr. Huffman.
You are recognized for 5 minutes.
Mr. Huffman. Thank you, Mr. Chairman. I really hope the
American people are watching, not just the insiders and
industry lobbyists that are very familiar with this Committee
and these hearings, but regular folks who care about the
environment and are disgusted with the rigged system where
special interests wag the dog of public policy in Congress,
because here we are again.
And this is becoming a familiar theme in this Congress,
talking about rolling back environmental protections in order
to boost dirty energy production. That is such an emerging
trademark of this Congress and this Administration.
When the Interior Secretary was here recently to talk about
a budget that proposed $1.6 billion in funding cuts, Secretary
Zinke said, ``That is what a balanced budget looks like.''
However, it was a budget balanced by seeking no concessions at
all from the oil and gas industry, while rolling back
environmental protections, including shuttering the Marine
Mammal Commission, which is the crucial scientific agency
responsible for overseeing implementation of the Marine Mammal
Protection Act.
And in a recent Executive Order, the President even opened
the door to removing the scientific guidance in place for
assessing anthropogenic sound, one of the subjects of this
conversation today, on the hearing of marine mammals and their
behaviors.
So, at the same time that we are having a hearing to say
there is no science to support existing protections for marine
mammals, this Administration, with the help of this Congress,
is working to eliminate existing scientific guidance and,
potentially, to eliminate the agency that is best equipped to
answer these questions and to advise Congress on this issue. I
guess the preference is to just get the answers from industry.
We are talking about the development of offshore energy and
its impacts on marine habitat, and the sound from airgun
activities, which, in fact, is an enormous and obvious impact.
We are talking about a blast that is one of the loudest
anthropogenic sounds in the entire ocean that gets repeated
every 10 to 12 seconds for days, weeks, or even months at a
time. It is similar in its decibel level to this airgun that I
have right here.
To put that in context, this airgun has an output of about
120 decibels. It can be heard up to a mile away. It is only a
little bit less loud than a jet engine at takeoff, so we are
talking about something that is enormously impactful.
And it is also important to remember that water transmits
sound differently than air. It is actually more efficient. So,
the same sound in water and air can actually have a greater
impact in certain situations in water.
Ms. Martin, you claim in your testimony that the Marine
Mammal Protection Act was not originally designed to regulate
sound in the marine ecosystem. But it was absolutely designed
to protect essential habitats for each species of marine mammal
from the adverse effect of man's actions. And it was designed
specifically to prevent harassment in order to protect marine
mammals.
So, just considering our context here in this Committee
room, a significantly loud and frequent blast of noise, I
think, would be a distraction from our work. Wouldn't you
agree? Would you like me to sound off this airgun actually
every 10 to 12 seconds? Do you think your testimony would
benefit from that?
Ms. Martin. Congressman, I appreciate the prop, but----
Mr. Huffman. I am just asking if you would like me to blast
the airgun. With the Chairman's permission, I mean, I am happy
to do it if it is needed to make the point. You probably don't
want me to----
Mr. Westerman. I will remind the gentleman that would be a
violation of House decorum.
Mr. Huffman. We don't want to do that.
Mr. Westerman. No.
Mr. Huffman. We don't want to do that. We don't want to
hurt people's eardrums, we don't want to destroy the habitat
that we are trying to function in right now. And we should
bring the same common sense to our oceans and our marine
mammals.
In July of 2016--I am going to continue with you and give
you a chance to speak, Ms. Martin--NOAA completed its technical
guidance for assessing the effects of anthropogenic sound on
marine mammals. This underwent an internal review, three
external peer reviews, a follow-up peer review, three public
comment periods, and informal input from dozens of Federal
agency partners and private-sector stakeholders.
Ms. Martin, has the science changed so profoundly in the
last 12 months that we have to review that guidance right now?
Ms. Martin. Thank you for the question, and uncertainty
over that development of the acoustic guidance process,
including the three drafts, as you have mentioned, and
eventually final guidance, has been one of the major delays and
uncertainties that has riddled the Atlantic permitting process.
Industry stakeholders have also commented often at each
step of the review. And this latest review and final guidance--
and now, as you mentioned earlier, it is under review again by
Executive Order--pinpoints problems with----
Mr. Westerman. The gentleman's time has expired.
I am now pleased to recognize the Vice Chairman of the Full
Committee, the previous Chairman of this Subcommittee, the
gentleman from the 1st District of Texas, Mr. Gohmert.
Mr. Gohmert. If the gentleman would allow me to yield to
him, how many decibels does that make?
Mr. Huffman. One hundred and twenty.
Mr. Gohmert. Wow, OK. Thank you.
I really appreciate the witnesses here, because this is an
important hearing. This is critical. Marine mammals are
suffering from one of the most egregious things that is being
allowed to happen, and hopefully, as a result of this hearing,
we can find a way to stop noises that are 120 decibels. And I
am talking, of course, about the most common 120-decibel sound
that is made, and that does so much enormous damage--to quote
my friend--to mammals. I am, of course, talking about thunder.
Thunder in the clouds, we have to find a way to stop it,
because it is wreaking havoc, and doing enormous damage to
our----
Mr. Huffman. But would the gentleman----
Mr. Gohmert. No, I am not----
Mr. Huffman [continuing]. Yield to identify a marine mammal
that lives in the clouds, please?
Mr. Gohmert. They don't--I don't live in the clouds, as
opposed to some of my friends, and yet I can tell you air horns
do not normally--they are a bother, and they bother me a lot at
sports events, but they bother me and I live on the ground. And
even when I am underwater in a pool or ocean, thunder shakes
things. My point is, and for some of our friends that don't
understand sarcasm, there are things that occur in nature that
are beyond any man-made ability to even come close to.
But I want to go directly back to Ms. Martin. You note to
date that there are no verified injuries or deaths of marine
mammals from exposure to sounds produced during seismic
surveys. The Bureau of Ocean Energy Management and the National
Marine Fisheries Service stated this fact many times. Yet
environmentalists keep claiming that these tests will result in
hundreds of thousands of injuries and deaths to marine mammals.
So, I need to know. Do these estimates take into account
monitoring and mitigation practices that surveyors are required
to implement per the agency regulations?
Ms. Martin. Congressman, I appreciate the question. Simple
answer is no, they do not. In fact, those estimates and the
often-quoted 138,000 injuries or deaths is an extreme
exaggeration of the MMPA take estimation. Those are simply
estimates of exposure to sound, not actual impacts estimated to
occur.
And Dr. Bill Brown of the Bureau of Ocean Energy Management
said himself that 138,000 was an exaggeration, a conservative
assumption built on conservative analysis, and they did not
expect any of those exposures or impacts to occur.
Mr. Gohmert. We know thunder has been at 120 decibels. I
don't know of any way to mitigate those sounds. They do
transfer and the sound waves do travel underground, or
underwater. But with successful use of mitigation practices, is
it realistic to say that a seismic survey will result in
hundreds of thousands of marine mammal deaths?
Ms. Martin. Again, thank you for the question. No, it is
not a reasonable statement to make.
Mr. Gohmert. Under the Marine Mammal Protection Act, a
take--t-a-k-e--is broadly defined as an act that has the
potential to injure a marine mammal or cause a change in
behavior. Would a change in behavior include an animal swimming
away, or perhaps swimming up to a seismic survey to interact
with a vessel?
Ms. Martin. That is correct. A change of behavior includes
a simple change in direction of a swim pattern of the marine
mammal.
Mr. Gohmert. So, any change, including swimming up and
becoming friendly, would be considered a take?
Ms. Martin. That is correct, under current definition under
Marine Mammal Protection Act.
Mr. Gohmert. Since the definition of take is so broad,
then, the permitting process does not take into account the
effects of mitigation practices. So, it is not surprising at
all that these seismic surveys come with such high estimates or
potential takes.
Would you agree that these estimates are often misleading
in numbers, since the takes can include just swimming away, or
swimming up to a vessel?
Ms. Martin. Congressman, I would agree that by not
incorporating mitigation measures into the estimates, they are
overly conservative. But I would also point to the consistent
findings of thriving, stable marine life populations alongside
seismic surveying in both the Chukchi and Beaufort Seas and the
Gulf of Mexico, where seismic surveys have been conducted for
over 50 years.
Mr. Gohmert. And again, I would----
Mr. Westerman. The gentleman's----
Mr. Gohmert [continuing]. Direct my friends back to the
Gulf of Mexico, where drilling with loud noise has produced an
enormous amount of new underwater life. Thank you. I yield
back.
Mr. Westerman. The Chair now recognizes and welcomes to the
Committee the gentleman from Louisiana, who is not only a
strong advocate for the economic vitality of the Gulf of
Mexico, but also for the environmental vitality. He has done a
lot of work restoring wetlands. The Chair recognizes Mr. Graves
for 5 minutes.
Mr. Graves. Thank you, Mr. Chairman. My friend from
California, is that the same one you had last night at the
party? I thought it was out of air.
[Laughter.]
Mr. Graves. Thank you all very much for being here today.
I really wish we had someone from the Administration here,
but, Professor, I think I am going to pick on you a little bit,
if that is OK.
I am from south Louisiana, as the Chairman mentioned. We
have an incredibly robust environment, coastal area, one of the
most ecologically productive places on the North American
continent, produces more fisheries than anywhere else in the
Continental United States, and a really important part of our
culture, our economy.
What happened is back in the 1930s, after the Great Flood
of 1927, the Corps of Engineers came in and began building
levees along the river system. And when they did, they cut off
all of this fresh water and sediment that was coming down the
river, draining from Montana into Canada to New York, and used
to result in a delta building in a growing deltaic plain.
After the Corps finished that, it immediately reversed to
land loss. And, in fact, we have lost approximately 1,900
square miles of our coast, the size of Delaware. In fact,
larger than the size of Delaware. And our efforts to try to
restore the coast, which is entirely an environmental project,
one important component of that--in fact, I would argue the
most important component--is reconnecting the river with the
adjacent wetlands. Restoring that sediment flow, that fresh
water flow.
NOAA recently came to us, and in regard to the Marine
Mammal Protection Act. It appears that it is going to take them
5 years to complete their MMPA analysis. Five years. I want to
be clear. No one did an MMPA analysis to determine the impact
of putting these levees on the river, the loss of 1,900 square
miles of this productive coastal wetland area. Yet, we are
going to delay this project. And I want to be clear: delay. We
have nearly $1 billion in non-Federal funds in the bank today
to implement this project.
Do you see that as being proper execution of environmental
laws, to delay an environmental project for 5 years like that,
or do you think that perhaps there is a better balance that
could be struck there?
Ms. Leiter. Thank you for the question. I thought you were
going to ask me to defend the Corps of Engineers. But----
Mr. Graves. Well, it is their fault.
Ms. Leiter [continuing]. Thankfully, you did not. I mean it
is a very difficult question. I am not familiar with the
details of that particular permitting process. It certainly
sounds like a worthwhile project, and it sounds as though, from
the point of view of the Gulf, it may be unfortunate that there
are delays.
What I would say is that it is a very difficult process to
evaluate impacts. You need to take a lot of input from all
sides. And I can well imagine--I don't know why 5 years, but I
can well imagine that it would be a long process to evaluate
the impacts on a marine mammal population. And they have to do
the scientific analysis thoroughly, because they don't want to
make a decision as the Corps did----
Mr. Graves. But what about the impact on the people, on the
fishers, just the ecological productivity? Is there not an
offsetting consideration here?
Ms. Leiter. I think the problem is that, historically, and
even in the present, we sometimes undertake major actions that
have impacts that we didn't realize. So, this sounds like quite
a major undertaking, and I think NOAA's idea is to make sure
that it is not going to have unforeseen impacts on marine
mammal populations.
Mr. Graves. I think NOAA's schedule is absurd, I do. I
think it is absurd, and I think it is going to result in
additional land loss needlessly, additional environmental
impacts needlessly. I think it is absurd.
Ms. Martin, your testimony, you indicated that the intent
behind the Marine Mammal Protection Act and the intent of
Congress was forward thinking and innovative. Do you view that
as being consistent with the implementation of MMPA?
Ms. Martin. I would say that the implementation of the MMPA
by both bureaucracies and by exploitation of advocacy groups
today has strayed from Congress' original intent, which was to
focus on direct actual impacts to marine mammal populations.
Mr. Graves. Also, I wanted to see if you could clarify. My
friend from California keeps making noises underwater, and is
concerned about impacts. Have there been documented impacts as
a result of acoustic impacts on marine mammals, that you are
aware of?
Ms. Martin. There have been no documented evidence of
seismic----
Mr. Graves. And is that your opinion? Is that a Trump
administration opinion? Or is that shared by previous
administrations, such as Obama and Clinton, as well?
Ms. Martin. That is the opinion stated repeatedly by two
independent agencies throughout changing political
administrations.
Mr. Graves. Great, thank you very much. I yield back.
Mr. Westerman. I would like to thank the witnesses for
their valuable testimony and the Members for their questions.
The members of the Committee may have some additional
questions for the witnesses, and we will ask you to respond to
these in writing. Also, if you have any suggestions on how
these rules could be improved, please include those in your
summaries.
Under Committee Rule 3(o), members of the Committee must
submit witness questions within 3 business days following the
hearing, and the hearing record will be held open for 10
business days for these responses.
If there is no further business, without objection, the
Subcommittee stands adjourned.
[Whereupon, at 11:25 a.m., the Subcommittee was adjourned.]
[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]
Rep. McEachin Submission
American Cultural Resources Association
July 18, 2017
Hon. Bruce Westerman, Chairman,
Hon. A. Donald McEachin, Ranking Member,
House Subcommittee on Oversight and Investigations,
Committee on Natural Resources,
Washington, DC 20515.
Dear Members of Congress:
We are concerned about the inclusion of the NHPA in your hearing
today entitled, ``Examining Impacts of Federal Natural Resources Laws
Gone Astray, Part II.'' America's relationship with its past changed
fundamentally when Congress passed the National Historic Preservation
Act (NHPA) more than 50 years ago and formally recognized historic
preservation as an important policy of the United States. These
sentiments still inspire:
The Congress finds and declares that (a) the spirit and direction
of the Nation are founded upon and reflected in its historic heritage;
(b) the historical and cultural foundations of the Nation should be
preserved as a living part of our community life and development in
order to give a sense of orientation to the American people . . .
The American people took those words to heart in the last half-
century, transforming their communities from coast to coast through
historic preservation and generating widespread social and economic
impacts. The NHPA established the legal framework and incentives to
preserve historic buildings, landscapes, and archaeological sites.
These heritage resources shape our sense of place, anchor economic
revitalization, and ensure a more sustainable future for our nation.
The NHPA helps stabilize neighborhoods and downtowns, contributes
to public education, attracts investment, creates jobs, generates tax
revenues, supports small business and affordable housing, and powers
America's heritage tourism industry. Publicly owned historic
properties, from community landmarks to federal facilities and national
parks, also maintain community pride and identity, aid local and
regional economies through their operation and maintenance, and foster
a variety of public uses. Grants from the Historic Preservation Fund
have supported restoration of historic treasures, assisted with
community recovery from disasters, and improved history education.
We are particularly concerned about the Committee's emphasis on
Section 106 of the NHPA, which requires the federal government to seek
input from local communities when planning federally supported
development in their backyards. Compliance with federal requirements
has engaged and empowered local communities across the country in
better planning for development and provided communities with an
important voice in federal decision-making. For public officials
concerned about protecting the rights of localities and states against
too heavy a federal hand, Section 106 is an asset--not an obstacle.
Even so, Section 106 is a procedural review, and it requires the
federal government only to take into account adverse effects on
historic properties. It does not mandate preservation of historic
places.
Section 106 requires the government to take into account adverse
effects to historic properties that are listed on the National Register
of Historic Places or are eligible for listing on the Register. By
including properties that are eligible for listing, the government
conserves financial resources. For example, the Department of the Army
in regulation AR 200-1 instructs installations to nominate for the
National Register only properties that will be transferred out of
federal management, and to go to the expense of nominating properties
only when justified by exceptional circumstances. Preparing nominations
to the National Register is a costly endeavor, and we support
Congress's long-settled decision in 1976 to amend the NHPA to include
consideration of properties eligible for listing, saving substantial
taxpayer dollars.
The National Register is by no means a complete accounting of our
nation's historic heritage, and removing eligible sites from
consideration would leave out places critical to our communities and
our understanding of the nation's history. Congress's determination
that eligible properties should be considered in the Section 106
process means that the federal government has been required to consider
adverse effects of its undertakings on such iconic places as the
remains of the World Trade Center in New York (determined eligible but
not listed), Arlington National Cemetery (not listed on the National
Register until 2014), the Blue Ridge Parkway (determined eligible but
not listed) and the Lumpkin's Slave Jail site in Richmond, Virginia
(determined eligible, but not listed). Absent the eligibility
consideration, projects proposed on or near sites like these would have
no legal obligation to weigh adverse effects. Investigations of
eligible sites impacted by projects across America has allowed us to
the tell the stories of the diverse communities that have contributed
to the development of our great nation.
The American Cultural Resources Association (ACRA) is comprised of
private-sector cultural resource management firms with deep experience
helping clients efficiently align their projects with the goals of the
Section 106 process. We are pleased to share our expertise with the
Committee as you consider ways to continue to improve the Section 106
process. Unfortunately, changing the process to remove eligible
properties from consideration will only dramatically increase the cost
of Section 106 reviews by requiring formal nominations to the National
Register and serve to undermine our nation's long-standing commitment
to historic preservation.
Best regards,
Duane E. Peter,
President.
______
[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE COMMITTEE'S
OFFICIAL FILES]
Rep. Westerman Submission
-- Testimony of The Family Farm Alliance, dated July 18,
2017.
Rep. Grijalva Submissions
-- Testimony from Kurt Riley, Governor of Pueblo of Acoma,
dated July 18, 2017.
-- Statement of the United South and Eastern Tribes and the
Hualapai Indian Tribe, dated August 1, 2017.
[all]