US Army Corps of Engineers
Albuquerque District

Engaging with Tribes in the Regulatory Program

Senior Regulatory Project Manager, Regulatory Branch, Albuquerque District
Published March 11, 2019

The mission of the Regulatory Program is to protect the Nation's aquatic resources and navigable capacity, while allowing for reasonable development, through fair and balanced decisions. The goal of the program is that these decisions are also timely and transparent, rooted in sound science, and compliant with applicable laws, and USACE policy, which includes Section 106 of the National Historic Preservation Act (Section 106), and the Tribal Consultation Policy Memorandum (01 November 2012). In the context of the Regulatory Program, Tribes may be an applicant for a permit, a consulting party under Section 106, or in a government-to-government consultation as a result of the determination that activities requiring authorization have the potential to significantly affect tribal resources, tribal rights (including treaty rights), or tribal land. As such, the relationship between Tribes and the Regulatory Program can be complex and challenging. But with challenges…come opportunities.

 

In 2016, USACE Headquarters produced and distributed a Memorandum for Commanders, Major Subordinate Commands, and District Commanders on the subject of tribal consultation responsibilities in the Regulatory Program (2016 Memo). In addition to clarifying those responsibilities in relation to the USACE Tribal Consultation Policy Memorandum, this document states that “all districts should have guidance and practices in place for identifying and evaluating potential impacts to tribal resources, tribal rights, tribal lands, and historic properties, and ensuring that meaningful consultation with Tribes occurs for Regulatory actions.” It goes on to note that “district commanders have found it helpful to have archaeologists in the Regulatory Program office that can conduct Section 106 reviews while also having other project management responsibilities.” In many cases these other responsibilities involve “ensuring that meaningful consultation with Tribes occurs for Regulatory actions.”

 

In light of current events across the country regarding tribal issues and consultation for Regulatory actions, and in response to the aforementioned 2016 Memo, it is not surprising that there has been a growing trend across USACE of districts hiring archaeologists in the Regulatory Program. For one thing, a large portion of tribal engagement in Regulatory is driven by compliance with Section 106, which involves the identification and evaluation of historic properties and, when applicable, mitigation of adverse effects; and archaeologists are well-suited to conducting these analyses/processes. Section 106 also requires that federal agencies consult with Tribes when an undertaking will result in adverse effects to historic properties. Additionally, it is worth noting that archaeologists are also anthropologists, and as a result of their academic and professional experience and interest oftentimes have developed an understanding and appreciation of the tribal perspective. And effective communication requires a respectful exchange of knowledge, ideas, and perspective.

 

In some districts the Regulatory Archaeologist also functions as a Project Manager. For these situations, and if applicable to the district, assigning tribal lands to this PM’s area of responsibility provides the opportunity for building stronger relationships. For one thing, the decision to assign an individual with the training and experience of an anthropologist as the Regulatory PM for tribal lands indicates our desire to establish and/or maintain effective communication and a mutual under-standing of the issues (see paragraph above).

 

For another, the number and variety of Regulatory actions dictates regular contact and meetings, which should generate familiarity and consistency. It is also noteworthy that Tribes often request a single point-of-contact for Regulatory actions, or even a lead district in cases where there is overlap (e.g. Navajo Nation). Granting these types of requests shows a willingness on our part to take steps to improve communication and work collaboratively.

 

Conducting workshops and trainings for Tribes is another resultant vehicle for relationship building in the Regulatory Program. Several districts have sponsored stream restoration and wetland delineation workshops exclusively for tribal members. Regulatory PMs also provide presentations to Tribal Councils, regarding permitting requirements, current projects pending actions, and other issues. These types of engagements are opportunities to exchange knowledge, discuss issues of mutual concern, and develop a rapport.

 

In sum, executing the mission and goals of the Regulatory Program can result in challenging engagements with Tribes, particularly in regard to our process for allowing reasonable development through fair and balanced decisions. As we all know, what is seen as a “fair and balanced” decision by one group, or individual, can be viewed as arbitrary and capricious by others. Working through these kinds of challenges requires effective communication, which, in turn, relies upon the ability to consider, and respect other points-of-view. It also requires the establishment of a relationship that can withstand disagreements regarding agency decisions. As such, it is necessary that steps are taken to build those relationships.