The Army Corps Needs an Appendectomy: Diagnosing the Army Corps' Unlawful Promulgation and Use of 33 C.F.R. Part 325, Appendix C, to Comply with Section 106 of the National Historic Preservation Act

Abstract

For forty-three years, the United States Army Corps of Engineers (“USACE”) has used its own set of procedures, codified at 33 C.F.R. Part 325, Appendix C (“Appendix C”), to comply with Section 106 of the National Historic Preservation Act (“NHPA”), rather than the procedures set forth in the government-wide regulations the Advisory Council on Historic Preservation (“ACHP”) promulgated and codified at 36 C.F.R. Part 800 (“Part 800”). The USACE’s adoption and use of Appendix C has been, and continues to be, unlawful. Appendix C was not lawfully promulgated because the ACHP never approved of or concurred in its adoption and use. Moreover, nearly every provision in Appendix C is inconsistent or conflicts with the corresponding provisions in Part 800 and the NHPA. The USACE’s reliance on Appendix C threatens the legality of every one of its permitting decisions.

This article begins by providing background on the NHPA, the Section 106 process, and Part 800 alternate procedures. Next, it examines the USACE’s development, adoption, and use of Appendix C, the USACE’s subsequent interim guidance and memoranda on Appendix C’s continued use and legality, and previous efforts to address Appendix C’s issues. Third, this article analyzes Appendix C’s legal deficiencies, specifically its unlawful promulgation and its inconsistencies and conflicts with Part 800 and the NHPA. Finally, this article concludes that the USACE must rescind Appendix C through formal rulemaking while examining other options, short of rescission, that have previously been proposed to address Appendix C’s systemic issues.