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Section 106 of the National Historic Preservation Act (NHPA) requires federal agencies to consider the effects of their actions on historic properties and to provide the Advisory Council on Historic Preservation (ACHP) an opportunity to comment. Currently, the U.S. Army Corps of Engineers (Corps) follows its own procedures for compliance with Section 106 within its Regulatory Program. These procedures attempted to tailor the Section 106 process for the Corps and permit applicants, while still fulfilling the Corps’ obligation for notice and coordination with the ACHP. Now, however, the Corps has proposed a new rule that would amend its Regulatory Program to eliminate its current procedures for NHPA compliance and instead follow the NHPA implementing regulations promulgated by the ACHP in 36 C.F.R. part 800. The deadline to submit comments on the proposed rule–April 9, 2024–is approaching.

Current Corps Regulations

The Corps Regulatory Program administers permits affecting jurisdictional waters (and wetlands) under Section 404 of the Clean Water Act, Sections 9 and 10 of the Rivers and Harbors Act, and Section 103 of the Marine Protection, Research, and Sanctuaries Act. As allowed under 36 CFR 800.14, the Corps elected to develop alternative procedures for complying with Section 106 of the NHPA for its Regulatory Program in consultation with the ACHP. These procedures, found in Appendix C to 33 C.F.R. part 325, include definitions, terms and processes that are unique to the Corps’ Regulatory Program.

In particular, Appendix C defines “undertaking” as “the work, structure or discharge” that requires a Corps permit. Similarly, the Corps’ regulations use the term “permit area” as the area of analysis rather than the term “area of potential effects,” which is found in the ACHP regulations. Appendix C defines “permit area” as “the areas consisting of jurisdictional waters, including wetlands, under the Corps’ statutory authorities to regulate that will be directly affected by the proposed activity requiring [Corps] authorization plus any uplands that would be directly affected by the activities requiring [Corps] authorization.” The procedures also include provisions for assessing effects and coordination with the ACHP.

Proposed Change

Now, the Corps is proposing to abandon its alternative procedures and instead follow the ACHP regulations. In doing so, the Corps would also adopt the terms found in 36 C.F.R. part 800 in lieu of its current terms and definitions. Significant to permittees, “undertaking” in the Corps program would be defined as “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.” This definition could be ultimately construed more broadly than the current definition. Likewise, the term “permit area” would be replaced by “area of potential effect,” which is defined in 36 C.F.R. part 800 as “the geographic area or areas within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties, if such properties exist.” As with “undertaking,” this change could ultimately broaden the Corps’ review of an individual action.

The Corps is accepting public comment on this proposed rule until April 9, 2024. No specific timeline has yet been announced for rule adoption and implementation, but we are continuing to monitor this issue.

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