[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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                     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.
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
            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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
            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\
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
        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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
            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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
            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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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?
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
            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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
            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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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?
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
            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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.

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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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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).
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    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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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)
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \1\ BOEM stated in its August 22, 2014 Science Note.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \2\ IAGC, API, NOIA letter; Atlantic Ocean Geological and 
Geophysical Applications--December 9, 2015.
---------------------------------------------------------------------------
    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]