After the presidential election, our cultural resources experts are watching for significant adjustments to cultural resources review for permitting procedures under the National Environmental Policy Act (NEPA) and Section 106 of the National Historic Preservation Act.
NEPA regulations, in 40 CFR Part 1500-1508, were last revised earlier in 2024, but Section 106 of the National Historic Preservation Act, in 36 CFR Part 800, has remained unchanged since 2004. Regulatory revisions take significant time to do, but major policy shifts in how cultural resources reviews are conducted for utility-scale renewable energy projects can be enacted quickly and may impact the market by introducing a sizable element of near-term unpredictability.
Changes that are meant to rapidly accelerate permitting reviews, however, often have practical limitations in how well they work. Experience has shown that major organizational shifts in policy take time to effectively reach regulatory staff making the day-to-day decisions. This can result in regulatory confusion at best and decision-making paralysis at worst as agency personnel seek to understand and comply with the requirement for expedited reviews brought on by rapidly evolving policy changes.
Prior to the return of a Trump Administration after a four-year hiatus, it is important that we take this opportunity to forecast the sorts of permitting policy changes that are likely to come up first. It is plausible that for cultural resources there may be an effort to limit the aspects of the new NEPA regulations that relate to environmental justice and cumulative effects. How effectively policy adjustments can be used to minimize the recent regulation changes in this case is not known, but what is certain is that the details of the revised procedures will take time for regulatory staff to adjust to and address via new expectations.
Regulations vs. Policy – What’s the Difference?
Regulations carry the force and effect of law and are developed by agencies that have been delegated rulemaking authority by Congress in certain cases. Development of regulations can be time consuming because the process must follow public notice and comment requirements in the Administrative Procedure Act (APA).
Policies, on the other hand, do not carry the force and effect of law, but are used because executive agencies can develop and use them very quickly. This is because public notice and comment requirements under APA are not required when policies affect only agency management or personnel, or when agencies determine that robust public engagement is either impracticable, unnecessary, or contrary to the public interest.
For a detailed overview in the difference between federal regulations and policy, please see An Overview of Federal Regulations and the Rulemaking Process.
Short-Term Playbook of Probable Changes to Section 106
The short-term playbook of probable changes to the Section 106 consultation procedures in 36 CFR Part 800 are more predictable. Since these regulations are the same as when Trump’s first term ended in 2020, it seems likely that previous policy modifications that were then rescinded by the Biden Administration will be reinstated. One example is Secretarial Order 3389 on “Coordinating and Clarifying National Historic Preservation Act Section 106 Reviews,” which was issued by the Department of the Interior near the end of Trump’s first term in 2020 but was quickly undone by the Biden Administration before it had much impact.
A notable element of this order was the requirement that all major actions led by the Bureau of Land Management or the Bureau of Ocean Energy Management that require an Environmental Impact Statement (EIS) would not use the standard Section 106 consultation procedures. Instead, each agency would use the NEPA substitution process found in 36 CFR Part 800.8(c) to comply with Section 106. This means that the NEPA substitution process would no longer require development of a Section 106 Memorandum of Agreement (MOA) to address adverse effects; instead, mitigation would be codified in the NEPA Record of Decision (ROD). From a schedule standpoint, many see this as preferable since it limits the cultural resources mitigation consultation clock to the NEPA timeline rather than the Section 106 MOA development process that has no specified deadline.
If the past is indeed prologue, then it seems likely that this order, or something very similar, will be re-adopted in the earliest days of the second Trump Administration. This matters because it is particularly germane to utility-scale energy production and transmission on public land and offshore wind energy production, both key sectors within the growing energy market.
Another unique aspect of the previous order under Trump that may be re-adopted is the limitation of off-site compensatory mitigation for impacts to cultural resources. This is especially relevant for energy projects because this form of mitigation oftentimes is an efficient approach for reaching agreement on mitigation for visual, atmospheric, or audible adverse effects to historic properties. This form of mitigation has critics for good reason, but nevertheless it is commonly used since the approach can help avoid protracted consultations on mitigation related to impacts on setting. It is, of course, not certain what adjustments to cultural resources compliance may come to fruition in the energy market, but we are committed to staying informed on changing federal requirements and utility-scale renewable energy review procedures.
ESA has a cadre of planners, cultural resources specialists, and technical experts who are experienced in working with NEPA and Section 106. Let us know how ESA can help bring your project forward to successful development. Reach out to Tony Overly, Cultural Resources Practice Leader, to get started.
Date
December 4, 2024
