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7
The Institutional
Decision Making System
INTRODUCTION
Decision making for port dredging became a major concern for two
reasons. One is discussed in detail in the preceding chapter: the
paralysis of funding for traditionally federal dredging projects. The
second, closely related reason is the frustratingly long time that now
elapses in the decision making process for approval of traditionally
local projects, and for bringing proposed federal projects to
congressional consideration.
This chapter highlights constraints in the decision making process
that pose problems for dredging projects. It investigates a
frequently proposed answer to these problems--"fast tracking." The
chapter closes with an assessment of prospects for accelerating
decision making, and for bringing stability and predictability to the
decision making process.
The institutional decision making process for port dredging is
complex, cumbersome, unpredictable, and fragmented. It is the product
of legislation and regulation accumulated over the past 150 years. As
constituted today, the system requires or provides opportunity for
participation by Congress, the courts, a large number of federal
agencies, as well as state and local governments, and many interest
groups. The interest groups engaged in particular decisions may be
numerous and diverse--commercial and other entities associated with
ports, shipping and transportation firms, environmental organizations,
citizens groups, and other members of the local population.
The system's complexity reflects its need to address and manage a
complex set of needs and concerns. No dredging project represents an
unmixed blessing to all concerned and there may be many concerned.
Dredging decisions must assess a great deal of sometimes conflicting
data, and balance a diverse set of interests that are frequently
vigorously advocated.
As described in preceding chapters, decisions involve: which ports
to dredge, who will pay for the dredging, what the appropriate design
of the port will be, how it will be dredged, where the dredged
material will be disposed, how best to manage the environmental
effects, and how to respond appropriately to the concerns and
responsibilities of governmental organizations and non-governmental
77
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78
interest groups. Many of these elements vary from one port to
another, and fluctuate with time. Decision making about port
development must resolve real issues, gather and analyze real data,
and find accommodation among conflicting interests.
In the case of major federal projects, this decision making process
may take as long as 22 years. For most local projects, the time is
generally shorter but still far too long from the point of view of
those proposing the project. Not surprisingly, then, a wide range of
interests concerned with port dredging have expressed growing
dissatisfaction with the decision making process.
This dissatisfaction has led to ever more frequent calls for what
has come to be known as fast tracking. Although fast tracking has not
been clearly defined, its advocates do agree that the objectives are
speed, predictability, and stability.
The important role and responsibilities of the U.S. Army Corps of
Engineers in all port dredging projects--whether federally or locally
funded--makes the federal government the focus of concern of those who
advocate fast tracking. The federal role in ports results from three
basic developments. First, the Constitution of the United States
prohibits discrimination among the nation's ports by the federal
government. Second, since the passage in 1824 of the General Survey
Act, the Corps has had primary responsibility to oversee or carry out
dredging for the nation's ports. The Corps' initial responsibility
was to ensure navigability. Some of this responsibility is now taken
by the U.S. Coast Guard (placement of aids to navigation, for
example). Ensuring navigability by dredging is still a responsibility
of the Corps. Third, during the late 1960s and the decade of the
1970s, a broad set of environmental legislation gave the Corps and a
variety of other federal agencies responsibility for assessing the
environmental consequences of dredging and other activities and
ensuring that those activities met standards adopted to protect the
environment. The key institutional consequence of this body of
legislation was to require that the Corps take responsibilities far
beyond navigation and to assure that it coordinate and cooperate with
a variety of other federal agencies as well as state and local
governments. The Corps, then, is the key and lead federal agency for
dredging activities irrespective of origin or funding.
FEDERAL VERSUS LOCAL PROJECTS
Federal projects differ from local projects in a number of ways.
Historically, the federal government has assumed responsibility both
for the construction and maintenance of major access channels,
maneuvering areas, and anchorages in the ports of the United States.
This has meant that the federal government both funds and manages
federal dredging activities. Funding for federal projects has
traditionally been provided in omnibus authorization and
appropriations bills enacted by the Congress every two years or so.
The projects pass through several phases ranging from initial
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79
investigations to physical construction. Movement from one key phase
to the next requires specific authorization and funding by Congress,
and intermediate steps--consultation with other federal and state
agencies, the public, and preparation of reports for successive
approvals by higher levels of the Corps--might depend on annual
appropriations. The evolution from initiation to completion of
federal dredging projects is outlined in Table 14 (Appendix G) and
mapped against time in Table 15 (Appendix G). The average time from
initiation to completion is 21.6 years. Over half the time is
consumed in the congressional processes of authorizing and funding the
project.
Two facts need to be emphasized concerning Congressional decisions
for port dredging. First, the choice of which projects to fund, the
level of funding provided, and the speed with which decisions are made
is a product of the traditional processes of congressional
negotiation. Within our system of government, there is no way to
establish external discipline on this process. Any acceleration of
the rate at which Congress makes these decisions or any increase in
the predictability of these decisions will be made by Congress
itself. Second, congressional authorization and appropriations
describe the physical dimensions of dredging projects. That is,
Congress typically specifies channel widths and depths. This latter
point is important because the Corps, in carrying out congressional
mandates, must frequently operate within precise guidelines. This can
become a serious problem in a process that takes more than 20 years:
the needs of the port may change significantly in the meantime. In
sum, Congressional port decisions can become operating strait-jackets.
The second major decision maker with regard to federal dredging
projects is the Corps of Engineers. It is critical to understand that
the Corps' responsibilities are divided between management and
regulation. On the management side, the Corps plans and designs
federal projects and may either contract with the private sector for
dredging or may use its own dredges to carry out the work.
On a separate track, the Corps is the major regulatory agency for
dredging. Operating under the guidance of legislation and regulations
governing navigation, safety, and a broad set of environmental and
public conerns, the Corps has responsibility for approving the
acceptability of its own activities. For example, the Corps, in
cooperation and consultation with a variety of other federal executive
agencies and state and local agencies must approve or deny such
specific activities as the dredging itself, the transport of dredged
materials, and the location and ways in which dredged materials will
be disposed of.
Local dredging projects are not funded by federal monies.
Typically they are concerned with dredging (1) to provide access to
shoreside facilities, (2) of berths, (3) landfill projects (or some
combination). Local projects do not require congressional action, and
in most instances, they are not managed by the Corps. Local projects,
however, fall under the regulatory authority of the Corps. They must
meet the navigational, environmental, and social requirements derived
from the body of dredging-related legislation.
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Basically, the same laws and regulations apply to both federal and
local projects. The only distinction is that the Corps does not
formally issue permits for federal projects while it must issue
permits for local projects.
FAST TRACKING
The growing demand for shortening the time required to approve
dredging projects and bring predictability and stability to the
process applies to both federal and local projects. In the case of
federal projects, there are three categories of decisions where the
goal of fast tracking might be achieved. The first category involves
congressional decisions. During the post-World War II period, the
amount of time consumed in the congressional decision making process
increased to the point that the various authorization and
appropriation decisions consumed 12 to 13 years of a 22-year
initiation-to-completion period. The opportunities for time saving in
the congressional decision making process are substantial. A 1978
report by the General Accounting Office made a number of
recommendations to reduce the time taken up in decision making. In
making these recommendations, however, the General Accounting Office
noted that their adoption would have the effect of reducing
congressional control and oversight (General Accounting Office,
1978~. There is no evidence that Congress is prepared to give up
oversight and control authority. This point was underlined by the
General Accounting Office in a follow-up study six years later, which
found that the "process for Corps water resource projects has remained
essentially unchanged since our 1978 report. The options...have not
been adopted by the Congress. Thus the Congress maintains the same
level of control and oversight over water projects" (General
Accounting Office, 1984~.
As discussed in Chapter 6, basic changes in the way federal
projects are funded may result in changes in the character of
congressional decision making. What seems clear is that fast tracking
in Congress and the source of funding are inextricably intertwined.
It seems likely that decisions on sources of funding will necessarily
precede any changes in the way authorization and appropriations
choices are made and the outcome at this point is unpredictable.
Alternatively, it has been possible to speed up Corps decision
making with regard to its management of federal projects. In response
to growing concern over ever-longer lead times, the Corps revised its
procedures. The Corps reports an average savings of 1.7 years in
survey work and 1.4 years in review time for projects having reached
final approval stages in the 1975-1977 time period (General
Accounting Office, 1984~. There may be further opportunities to
enhance the efficiency and speed of the federal decision making
process, but given the prerogatives of Congress, fast tracking clearly
has limits.
A review of the concerns expressed by those calling for fast
tracking indicates dissatisfaction with a third category of
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decisions--those associated with regulatory responsibilities. These
regulatory decisions apply to both federal and local projects. Delays
associated with permitting decisions for local projects are the major
concern. The increasingly long lead times associated with gaining
permit approval correlate with the passage of environmental
legislation beginning in the late 1960s and continuing through the
1970s. This legislation broadened the regulatory responsibilities of
the Corps to include a diverse set of environmental and other
concerns. Further, this legislation was responsible for bringing into
the regulatory decision making process a significantly expanded number
of participants.
THE REGULATORY DECISION MAKING SYSTEM
The number of laws, executive orders, and policies that are (or may
be) pertinent to the regulation of dredging projects is substantial
(see Appendix E). In addition, every responsible federal agency has
put in place a set of federal regulations as necessary to carry out
congressional mandates and executive orders. It is both beyond the
scope and the capacity of this study to investigate this whole complex
in detail. It is, however, necessary to characterize the regulatory
decision making system to gain an understanding of why decision making
takes longer now than in the past.
The committee has chosen to do this by looking at some of the
organizational and procedural consequences for particular agencies of
historical (but still active) and recent legislation: the Rivers and
Harbors Act of 1899, the National Environmental Policy Act of 1969,
the Fish and Wildlife Coordination Act of 1958, the Endangered Species
Act of 1973, the Clean Water Act, the Marine Protection, Research and
Sanctuaries Act of 1972, and the Coastal Zone Management Act of 1972.
The succeeding section illustrates the complexity, overlapping
jurisdiction, and requirements for coordination resulting from these
and related pieces of legislation.
AGENCY ROLES
The Corps in its role as lead agency with regard to both federally
funded and local dredging activities must consult at numerous points
with a diverse set of other governmental agencies in carrying out its
regulatory responsibilities. Something of the texture of that
consultation and coordination is suggested by looking at four areas of
responsibility: (1) environmental assessment, (2) approval of local
dredging activities, (3) approval of fill or disposal in U.S. waters,
or (4) approval of transportation of dredged materials for ocean
disposal. In the case of the last three items, local projects require
formal permits while for federal projects the same regulatory
decisions are required, but no formal permits are issued. The
succeeding description is primarily concerned with agency roles and
regulatory decisions in these four areas of responsibility for local
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projects, but there are some differences in the processes followed for
federal and local projects, and in the instances these are important,
the differences are noted.
U.S. Army Corps of Engineers
The Corps (generally acting through its district engineers) is
required to follow procedures and prepare documentation established by
the President's Council on Environmental Quality (CEQ) for carrying
out the mandates of the National Environmental Policy Act (NEPA). In
the case of major federal projects with potentially significant
environmental implications, the Corps districts have a mandatory
responsibility to prepare a full-scale Environmental Impact Statement
(EIS). The initiation of local projects is signaled to the Corps by a
permit application: the district engineer may initiate either an
Environmental Assessment (EA) (a review to determine whether a
full-scale Environmental Impact Statement is needed) or an
Environmental Impact Statement (EIS), unless the proposed activity
falls within a predetermined categorical exclusion. The objective of
the environmental assessment process required by NEPA is to ensure
that decision makers have available a broad overview of the systemic
environmental effects of the proposed dredging activity.
The three specific approvals identified are handled through
individual permit application approval procedures. Under authority
derived from Section 10 of the Rivers and Harbors Act of 1899 (33
U.S.C. 403), the Corps has responsibility for issuing or denying
permits for construction or other work in or affecting the nation's
navigable waters. Under Section 404 of the Clean Water Act (33 U.S.C.
1251), the Corps has responsibility for issuing or denying permits for
the discharge of dredged or fill materials in U.S. waters. Under
Section 103 of the Marine Protection Research and Sanctuaries Act of
1972 (33 U.S.C. 1401), the Corps has responsibility for issuing or
denying permits for the transportation of dredged material for
open-ocean disposal. Permit-issuance authority is delegated by the
Corps to its district engineers for local projects (with provision for
higher-level review if the applicant seeks it). Before permit
decisions can be made, however, the authorized officials of the Corps
must consult with a wide range of federal, state, and local resource
agencies and must provide for a public interest review. As these
actions are taken, and comments are sought and received, the district
engineers are authorized to add, modify, or delete special conditions
(for example, actions to mitigate adverse environmental effects) under
the Corps' broad responsibilities to protect the public interest.
The point to be noted here is that Corps regulations reflect the
fact that each port situation is unique. District engineers are
therefore provided with the opportunity to respond to those unique
conditions. On the other hand, these special-condition options give
the Corps a great deal of flexibility, and give to other agencies the
means for insisting that permit approval be subject to special
conditions they believe to be desirable. In practice, the Corps acts
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on special conditions only after the port and various interested
organizations and parties have reached consensus. In this connection,
the Corps normally consults with the U.S. Fish and Wildlife Service,
the National Marine Fisheries Service, the Environmental Protection
Agency, and a range of state and local organizations.
Finally, it is important to note that the port (or the Corps, for a
federal project) must secure state certification that the project
complies with applicable state water quality standards.
U.S. Fish and Wildlife Service (Department of interiors
The mission of the U.S. Fish and Wildlife Service (USFWS) is to
conserve, protect, and enhance fish and wildlife and their habitats
for the continuing benefit of the people. The principal
responsibility and authority is for migratory birds, threatened and
endangered species, certain marine mammals, international resources,
and wildlife on land under USERS control. The Fish and Wildlife
Service has responsibility for reviewing and consulting with the Corps
on permit applications and environmental documentation pursuant to the
provisions of the Fish and Wildlife Coordination Act of 1958 (16
U.S.C. 661~; Migratory Bird Conservation Act of 1928 (16 U.S.C. 715),
and international treaties; the Endangered Species Act of 1973 (16
U.S.C. 153~; and National Environmental Policy Act of 1969 (42 U.S.C.
4321~. Damage to wildlife resources from proposed projects and any
possible routes to mitigation of that damage must be considered in the
Corps' public interest review and in its environmental assessment
procedure. Under authority gained from the Endangered Species Act,
the Corps may not approve permits until it has received a
"no-jeopardy" biological opinion from the Fish and Wildlife Service.
National Marine Fisheries Service (National Oceanic and
Atmospheric Administration, Department of Commerce)
The role of the National Marine Fisheries Service (NMFS) in reviewing
Corps permit applications or proposed federal dredging projects
results from its responsibility under the Fish and Wildlife
Coordination Act* for determining the probable effect of the projects
on marine, estuarine, and anadromous or commercial fishery resources
and their habitats. Specific consideration must be given to fish and
shellfish resources, the presence of endangered fishery resources, and
the biological significance of affected areas.
*Certain responsibilities of the U.S. Fish and Wildlife Service (in
particular, those of the preexisting Bureau of Commercial Fisheries)
were transferred to the National Marine Fisheries Service in 1970.
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U.S. Environmental Protection Agency (EPA)
EPA's role in the Corps' permit process and in federal dredging
projects stems in part from the Clean Water Act. This law designates
EPA as the administrator of the act and states the objective of
restoring and maintaining the chemical, physical, and biological
integrity of the nation's waters. EPA has responsibility for
developing and publishing guidelines for the discharge of dredged
materials in the waters of the United States. Under this authority,
EPA reviews Corps permit applications and Corps projects to ensure
they adhere to the guidelines. EPA may veto Corps permits or
proposals by prohibiting or restricting the use of any disposal area
in inland waters of the United States if it determines that the
discharge of such materials will have an unacceptable, adverse effect
on municipal water supplies, shellfish beds, fishery areas, and
wildlife or recreational areas (40 C.F.R. Part 230~.
Under Section 103 of the Marine Protection, Research and
Sanctuaries Act of 1972, EPA has responsibility (l) for developing
environmental criteria; (2) designating approved open-ocean disposal
sites; and (3) ultimate veto powers in permit approval. The Corps
must consult with EPA to determine compliance with established
guidelines. EPA has the ultimate authority to prevent issuance of an
open-ocean disposal permit if the agency determines it will have
unacceptable adverse environmental consequences.
Article IV of the Convention on the Prevention of Marine Pollution
by Dumping of Wastes and Other Matter--better known as the London
Dumping Convention (LDC)--imposes additional restrictions on the ocean
dumping of "waste or other matter," including dredged materials. Most
importantly, the LDC prohibits the dumping of materials containing
certain constituents (specified in Annex I) when present as other than
"trace contaminants" and when not rapidly rendered harmless after
disposal. The LDC allows dumping permits to be issued only after
consideration of all the factors listed in Annex III -- the
characteristics and composition of the matter to be dumped, and off
the dumping site; method of deposit; and general considerations and
conditions. The Marine Protection, Research and Sanctuaries Act was
amended by Congress in 1974 to require that EPA consider the LDC's
standards and criteria in establishing or revising domestic ocean
dumping criteria. In recent years, the International Maritime
Organization (IMO), which administers the LDC, has had under
consideration proposals from the International Association of Ports
and Harbors to define certain "special care" measures, some of which
show great promise, and which recent tests indicate might allow even
highly contaminated dredged material to be safely disposed of at sea
(see Chapter 9~.
State Departments of Fish, Game/Wildlife
State departments of fish and game are trustee agencies having
jurisdiction by state law over the fish and wildlife resources of
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their states. Like the USFWS and the NMES, the role of these state
agencies in review of permit applications and environmental documents,
as well as consultation about actions that may be required, is
authorized by the Fish and Wildlife Coordination Act, the Endangered
Species Act, and the National Environmental Policy Act.
State (and Regional) Water Quality Control Boards
State water quality control boards (which may act through local or
regional boards) have been designated as the water pollution control
agencies in their states to protect the water quality of the state.
Permit applications and proposed federal projects must be evaluated
for compliance with the applicable effluent limitations and the water
quality standards of the state. Certification of compliance with
these standards is required under Section 401 of the Clean Water Act,
and such certification must be obtained by federal or local projects.
State Coastal Commissions/Coastal Zone Management Agencies
Almost all coastal states have established agencies to administer
their coastal zone management plans in accordance with the federal
Coastal Zone Management Act. These plans and agencies differ from
state to state, but they are generally concerned with protecting,
maintaining, and enhancing the quality of the coastal zone, its
environment and resources; assuring orderly balanced use and
conservation of resources, taking into account social and economic
needs; maximizing public access to the coast and public recreational
opportunities; assuring priority for coastal-dependent/related
development, and encouraging initiative and cooperation in planning
and development in the coastal zone. As an example, the California
Coastal Commission, which is one of the most active state coastal
agencies, requires a master plan from each port and exercises appeal
authority to ensure that particular developments conform to those
plans. In addition, the California Coastal Commission issues coastal
development permits and can require that those permits include
mitigation measures if it is determined that substantial harm to
coastal resources will result.
In the case of Corps activities, no project is approved until
appropriate state agencies have confirmed that the proposed activities
comply with their coastal plans, or have waived their right to do so.
Advisory Council on Historic Preservation, State Offices
and Others (U.S. Army Corps of Engineers)
Under the National Historic Preservation Act of 1966 (16 U.S.C. 470a),
the Advisory Council on Historic Preservation was empowered to review
federal activities (including activities licensed by the federal
government) to ensure that listings in the National Register for
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Historic Places will not be adversely affected. The Council published
regulations governing historic preservation (36 C.F.R. Part 800~; the
Corps district ensures that they are followed, if applicable, as
specified by CEQ's NEPA regulations, which require taking into account
any significant aspects of environmental quality recognized by
federal, state, regional, or local governments, public entities, and
private organizations (such as the National Trust for Historic
Preservation). Most states have a historic preservation plan or
office. Among federal laws applicable to cultural resources are the
Antiquities Act of 1906 (16 U.S.C. 431), Archeological and Historic
Preservation Act (16 U.S.C. 469), Historic Sites of 1935 (16 U.S.C.
461), and Executive Order 11593 (May 15, 1971), "Protection and
Enhancement of the Cultural Environment" (36 Federal Register 8921~.
THE PROCESS OF CONCURRENCE AND COORDINATION
Given the multiple responsibilities of many agencies for dredging
projects, it is little wonder that institutional decision making moves
slowly. The Corps, then, operates in a complex legal environment, but
it must also be emphasized that all dredging decisions and activities
exist in a political environment. In the political and legal
environment, it is understandable that the Corps seldom acts without
the concurrence of concerned agencies. This commitment to cooperation
and concurrence is so central to the Corps' operating procedures that
its regulations emphasize the point. For example, these regulations
state that the Corps will "...give full consideration..." to the
comments of the regional directors of the Fish and Wildlife Service
and the National Marine Fisheries Service" (33 C.F.R. 325.8(b)), "and
that the applicant will be urged to modify his proposal to eliminate
or mitigate any damage to...resources and in appropriate cases the
permit may be conditioned to accomplish this purposes (33 C.F.R.
320.4(c). The simple and compelling reality is that in the highly
pluralistic approval process for which the Corps is the coordinating
agency, consensus-building and concurrence among federal, state,
regional, and local agencies with major regulatory responsibilities is
now and will likely remain a fact of life. As a general rule, any
involved agency has a high probability of being able to block a given
dredging action or at least slow it down substantially if it is
strongly opposed to the action.
A frequent problem that contributes to slowing down permit approval
is the lack of resources within the concurring agency to give the
permit careful review. Concurrence with Corps permits and Corps
projects is handled by the local and regional offices of concurring
agencies. Almost inevitably, local and regional offices face funding
and manpower constraints and must, therefore, set priorities for the
use of their limited resources. Understandably, the norm is for
concurring agencies to place highest priority on those programs for
which they have primary or lead responsibility. The effect of this is
that many agencies respond to requests for review of permits by
indicating that their resources preclude a response at this time but
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that they reserve the right to respond later should they identify
significant potential consequences in the areas of their
responsibility or should they acquire additional funding and manpower
resources. In sum, a non-review is not the equivalent of approval.
Rather, it is a door left open through which a later modification or
challenge may walk.
Problems attendant on reserved comment and multiple reviews affect
local projects more than federal projects; first, because federal
projects are scheduled for several studies, including a complete
Environmental Impact Statement; but second (and perhaps more
importantly), because the Corps district initiates the scoping process
required by the NEPA guidelines of the Council on Environmental
Quality (40 C.~.R. 1500-1508~. In the scoping process, key officials
from the other agencies are invited to help identify the principal
items of environmental concern and how they will be addressed. This
process is also affected by lack of manpower and travel funds, but the
local Corps district will sometimes assist (Environmental Law
Institute, 1981~. During the time that elapses between the filing of
the Draft Environmental Impact Statement and the final Feasibility
Report, mitigation or other modifications may be considered, and
consensus developed. Local projects await reaction from the review
and comment period, usually, in contrast to the active process
followed by the Corps for federal projects.
One of the most debilitating elements of the multiple agency
involvement in dredging projects comes in the form of proposed
mitigation actions. In some instances, mitigation actions are
introduced late in the process and they require carrying out a
redesign of the project. In other instances, differing agencies may
recommend mitigation actions that are contradictory or contrary
(Kenney, 1980; Dredging Committee of California, 1978; American
Association of Port Authorities, 1981~.
The coordination-consultation process followed by the Corps
involves three phases: issuance of a public notice, a comment period,
and a public interest review. In the case of public notices, the
Corps is obligated by regulation to issue a public notice of its
intent to issue a permit within 15 days of the receipt of a complete
permit application containing all required information. The time
between receipt of the initial application and the issuance of the
public notice is often much longer. The most common difficulty is
that the permit applications are incomplete--lacking required
information, and the Corps must then request the additional
information from the applicant. Not infrequently, applicants are slow
responding to these requests for additional information. Many
applicants lack the necessary expertise to know what is required by
the permit or do not have the required information available.
Once the formal public notice has been issued, Corps regulations
(33 Federal Register 94-31834) specify a 30-day comment period. The
district engineer may grant an extension of up to an additional 15
days only if he determines it to be in the public interest. In fact,
the Comptroller General of the United States (1980) has reported that
Corps districts routinely grant single and multiple 15-day extensions,
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most often at the request of other federal agencies, and that those
requests for extensions are normally approved without the Corps'
requiring the requesting agency to document why the time extension is
necessary. If during the public comment period the Corps receives
objections or significant substantive adverse comments, a period of
negotiation is initiated. Particularly in the case of local projects,
permits are not acted on until the proposers of the project and the
objectors have worked out an agreement. The normal pattern is for
proposals and counterproposals to ensue with delays in the negotiating
process resulting from a lack of structure and management in the
negotiating process (Comptroller General of the United States, 1980~.
Some have argued that this process could be significantly shortened if
the Corps, with its expertise, were to participate actively in the
negotiation and make its expertise available.
Once the public comment period is closed, the district engineer is
required to make a public interest determination. In making this
determination, the district engineer is supposed to consider the full
range of interests by balancing the favorable and unfavorable
consequences of a permit decision (47 Federal Register 31800~.
The number of elements the district engineer is supposed to balance
is truly impressive. He is supposed to carefully consider and weigh
such factors as: conservation, economics, aesthetics, environmental
concerns, wetlands, cultural values, fish and wildlife values, flood
hazards, land use, navigation, recreation, water supply, water
quality, energy needs, safety, food requirements, socioeconomic
benefits, and the general welfare of the people. This public interest
review is at once the heart of the Corps evaluation process and at the
same time a process for which there exist no established criteria for
weighing and balancing the various factors. One investigator (Racer,
1983) characterized the review process as follows: ''The careful
weighing of the benefits and detriments of the proposed activity
called for in the regulations appear to have been replaced in practice
by merely a display of those benefits/detriments. The jump in
reasoning from a display of impacts to a decision implying a balancing
of public interest factors is hidden. The public interest review has
become an unaccountable informal process....The goal of balancing
competing interests has been unfortunately ignored. This missing
balancing effort appears to have been replaced with a policy that
equates a lack of significant environmental impacts and/or unresolved
objections from governmental agencies with a determination that the
issuance of the permit would be in the public interest."
Although Rader criticizes the way in which public interest
determinations are made, it is difficult to see how they could be
handled differently. There are no professionally agreed upon, let
alone politically acceptable mechanisms for balancing so many
competing apples and oranges. The norm, then, appears to be that the
Corps approves permits when there are no significant objections and
either denies them or does not act on them when there are significant
objections.
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EACH PORT I S UNIQUE
The decision making system for regulating port dredging which has been
characterized in the preceding reflects the general situation. That
is, it is the result of national legislation, national regulations,
and a general characterization of operating procedures. One
additional critical point needs to be emphasized. That is, each port
is unique. The common theme of the succeeding two chapters is that
the design and construction of each port and the environmental
protection actions required must reflect the specific characteristics
of the individual port. Similarly, the political and economic
circumstances and the complex of interest groups and governmental
agencies involved also differ from port to port. Finally, in the case
of federal projects, even at the congressional level, port
authorization and appropriations and the specific parameters mandated
for port construction are port-specific rather than programmatic. Any
successful effort to bring speed, predictability, and stability to
port dredging decision making must be based on the recognition that
each port is unique.
Further, even if the decision making process can be speeded up and
the time required to make decisions shortened, port projects still
take years. During that time, both port needs and the understanding
of the environmental and other implications of port dredging can
change. For example, the movement toward larger bulk carriers and the
use of containerships occurred rapidly. Similarly, understanding of
appropriate handling of different dredged materials has increased
rapidly in the last decade and offers resolution of many issues where
previous uncertainty led to polarizations among participants. Any
fast tracking system, then, needs to assure flexibility to allow
consideration of the uniqueness of each port, and to allow efficient
integration of new needs and understanding into the decision making
process.
SUMMARY
The general pattern of decision making that characterizes the
regulatory system governing port dredging is that decisions occur only
when consensus is achieved. Consensus in this sense is defined as
existing when no significant participants object so strongly to the
action that they are willing to mobilize and oppose it. There is one
other point that deserves emphasis and it is that in addition to all
the inherent legal and political pressures for finding a consensus,
the possibility of court action adds another. Particularly in the
case of state and local agencies and private interest groups, strong
objection to the approval of any permit or particular action within
the context of federal projects can be opposed in the courts.
Objectors do not necessarily have to win in the courts to win their
point. If the courts provide a vehicle for substantial delay and that
delay is costly to the proposers of the project, the threat of going
to court becomes a powerful negotiating tool in the hands of
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objectors. Although this point is not addressed formally in any of
the Corps or other agency documents, it is an essential reality for
all of the participants in regulatory decision making.
Few things struck the committee with more force than the frequency
with which participants in the dredging decision making system either
identified the courts as vehicles for slowing down the process or
mentioned concerns about possible court action. In sum, the
availability of the courts reinforces a widely noted characteristic of
the regulatory decision making process in the United States. That is,
that opponents and objectors deal within a system where the processes
are weighted in their favor. Simply stated, for anything to happen in
this regulatory decision making system, all significant participants
have to be in agreement at least to the point of not organizing in
opposition. Alternatively, to keep things from happening, only one
significant participant has to be vigorously opposed.
The Corps' lead role in the regulatory system for port dredging
reflects the need for consensus. While in specific instances it may
be possible to find the Corps acting over the objection of a major
participant, it is clearly not the norm. In fact, it is difficult to
conceive how the decision making system could be modified.
CONCLUSION
Many advocates of fast tracking have called for comprehensive
legislative regulatory change designed to streamline the decision
making system and accelerate decisions. Although these proposals have
much to recommend them in the abstract, they typically do not take
into account the need of the decision making system to balance an
extremely complex set of needs and interests. For this reason, some
of the proposals that have called for the Congress to concentrate
decision making in a single authority, presumably the Corps, such that
the Corps could act over the objections of major participants would
appear to be unrealistic. The committee, for example, could find no
instance of Congress having given any single agency such overweening
authority in circumstances similar to those existing for port
dredging. It is difficult to conceive of circumstances in which
Congress would free the Corps from the requirements of such
legislation as the National Environmental Policy Act, the Clean Water
Act, or the Endangered Species Act. Each of these pieces of
legislation was passed with broad public support; each has a strong
base of supporters in Congress; and each has a broad public
constituency. Survey data indicate continued broad public support for
environmental legislation. Congressional defenders of environmental
legislation appear to reflect the broadly held values of the American
people.
The preceding point was demonstrated by response to the Carter
Administration's proposal for establishment of an Energy Mobilization
Board. The proposed Board was to be given the power to fast-track
certain critical major energy projects. The proposal for the Board
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was made at the height of the Iranian Energy Crisis, a time in which
there was broad public sentiment for taking decisive action. It was
widely believed that the inability to move rapidly on large energy
projects resulted from circumstances very similar to those associated
with dredging projects. Even in the crisis during which the Energy
Mobilization Board was proposed, Congress refused to act. The
coalition opposing an Energy Mobilization Board ranged from
environmental organizations--concerned that environmental protection
might be diluted--to political conservatives--fearful that state power
and authority would be concentrated in a federal agency.
In the case of port dredging there is no similar crisis atmosphere
and the possibility of building a majority to support a comprehensive
legislative change making fast-tracking possible does not appear
likely.
Alternatively, numerous specific proposals have been made for
modifying particular regulations or particular coordination procedures
(General Accounting Office, 1978, 1984; Comptroller General of the
United States, 1980J. The corps has already demonstrated the capacity
to accelerate decision making in some of its own activities for
federal dredging projects. Doubtless there are many opportunities for
improvement and acceleration of decision making in this context.
Optimism, however, must be qualified. Many regulations are the result
of direct and specific mandates in legislation. For example, the need
for a "no-jeopardy" biological opinion from the Fish and Wildlife
Service is derived directly from the Endangered Species Act. In the
face of that legislative mandate, no amount of regulatory change or
organizational modification can overcome the requirement for Fish and
Wildlife concurrence.
With regard to federal projects, the greatest opportunity for
acceleration in decision making rests with Congress. With regard to
its decision making, however, Congress is a law unto itself. Perhaps
opportunities exist for accelerating decision making once Congress has
found an answer to the funding issue. Short of that, given a funding
stalemate, discussion of fast-tracking federal projects has an air of
unreality.
WHAT ARE THE OPTIONS?
Any search for ways to accelerate decision making with regard to U.S.
ports must start by recognizing certain facts. First, there is no
formal statement of national port policy in the United States.
Therefore, there are neither criteria nor a predetermined process for
determining which of many competing ports should receive new or
additional dredging, and in what order. Any major port dredging will
result from one of two determinants: (1) ability of the individual
port to convince Congress that its needs should receive first or high
priority; (2) ability of the individual port to find and secure
non-federal funding sources.
Second, there is a complex body of law and regulations which
applies nationally to all ports.
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Third, this body of law and regulations specifies generally
applicable criteria which must be considered when making decisions
about specific port activities. The laws and regulations direct that
certain procedures be followed, and that for certain kinds of actions,
specific approvals or permits be obtained.
Fourth, each port is unique. Responsibility for the development of
the port is local. If the source of funding is federal, the port must
mobilize and take those actions through its congressmen and senators
to assure congressional authorizations and appropriations. Successful
federal funding rests on the ability of the port (through its elected
representatives) to mobilize the necessary majorities in Congress.
Each port then is the locus of a micropolitical system for the
congressional decision making process, and in the context of Congress,
is in competition with other ports for congressional attention.
Congressional decisions, then, require tradeoffs, compromises, and
accommodations among the various ports.
Alternatively, if port development is locally funded, the ports
must mobilize to assure that that funding is made available. Sources
of funding for ports vary. Some ports are units of state government
and funding requires actions by state legislatures. Others are
entities of city government and require decisions within that
context. And others are separate political entities which must
determine within preexisting authorities how projects will be funded.
Simply stated, from the point of initial funding through every step
in the process, ports in the United States are organized such that the
major incentive and the major motive for action must come from the
individual port. The U.S. port system is in some senses not a system
at all: rather, a set of competing individual entities.
Ports are also unique in that they define their own needs. Some
ports are predominantly bulk commodity ports; others, predominantly
high-value cargo ports; and others, multicommodity ports. Based on
the character of existing traffic and expectations about future
potential, the needs and future capacities of ports vary.
Similarly, the physical environments of ports differ. Some of the
ports this committee considers to be coastal are actually located on
rivers or lakes some distance from the ocean; others that are coastal
by any definition have very high or very low rates of sedimentation,
comparatively, depending on littoral transport and protections; while
still others (in fact, most ports in the United States) are in the
complex sedimentary regimes of estuaries. Each port has a number of
geographical, man-made, and other physical constraints: none has
limitless physical possibilities for expansion or development.
Ports are also unique in the biological concerns of greatest
importance: most coexist with (or near) other uses of the oceans and
coasts, including commercial and sport fishing, public recreational
areas, and productive wetlands; some ports are particularly concerned
about toxic materials in their sediments; others must address a range
of concerns pertinent to surrounding concentrations of population.
Each port is unique in the way it is organized. That is, ports may
be state entities, local entities, independent political entities, and
they are likely to have to deal with very different sets of interest
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groups. Some ports must deal with highly active environmental and
social interest groups and others with few ongoing groups, although
any port's plans might prompt citizen groups or action. Some ports
are located in areas that have been the focus of major concerns by
federal environmental agencies; and others in areas that have received
little federal attention. Some have well organized, local commercial
Chambers of Commerce and skillful leaders; others have less
well-organized local commercial interests.
Finally, each port exists in a dynamic business environment. Its
needs can change over short periods of time. Similarly, the character
of environmental and social concerns can change rapidly.
Any effort to design a system to accelerate decision making for
port development and to bring stability and predictability to the
process, then, must begin with this recognition of uniqueness. From
that follows a central conclusion: the achievement of predictability,
stability, and speed will likely rest with the individual port, and
any such achievement will require the development of procedures and
processes that enable consensus to be achieved and sustained by
interested participants. Stated differently, the possibility of
creating a system where the lead federal agency, the Corps, has the
capacity to accelerate port development over the objection of
significant participants seems unlikely. Rather, fast-tracking
requires creating conditions on a port-by-port basis in which the
major organizational and interest group participants find themselves
in sufficient agreement with proposed port developments so that they
will not organize and mobilize to block or slow down developments.
Some years ago, a committee of the American Society of Civil
Engineers recommended that the permit process for offshore and coastal
development had to be rescued from the adversary process that the
committee said immobilized it. That committee proposed that a
consensus process should be strongly advocated by the ASCE (the
organization declined, not being primarily concerned with policy
matters). Such a consensus process will most likely evolve only with
concerted direction and effort from the local port.
In general, conflict results from some combination of three
conditions. First, participants in decisions differ on objectives or
goals. Second, participants have differing understanding of facts.
And third, some interested parties find themselves excluded from the
decision making process. To minimize conflict arising from these
conditions, each port needs to establish a planning process with a
commitment to assuring that the planning process will be continuous.
It is frequently said in corporations that the importance of planning
is not so much the plan as it is the process. The same would appear
to be true with regard to ports. The objective should be to develop
comprehensive plan for the port and ideally the port region, with the
recognition that the planning process is the beginning of the
consensus making process and that it is a continuous requirement. The
starting point for any planning process must be to ensure that all
interested parties are included. A key contribution of the planning
process is the establishment and the maintenance of a communication
system which keeps all interested parties informed.
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Any planning process needs to identify the needs of the port both
in the short and long term and the implications of those needs for the
range of concerns reflected by the interested participants. The
planning mechanism or process, then, needs to include all of the
appropriate governmental agencies as well as port users, commercial
interests, and environmental and public interests concerned about port
development. What is required will obviously vary from port to port,
but given the complexity of the issues that now surround port decision
making and the unlikelihood of change at the federal level, any
mechanisms other than those of local consensus-building appear to
offer little chance of success.
REFERENCES
American Association of Port Authorities (1981), "Regulatory Review of
Sec. 404 of the Clean Water Act and The Fish and Wildlife
Coordination Act, n Recommendations to Presidential Task Force on
Regulatory Relief, Washington, D.C.
Comptroller General of the United States (1980), "Managerial Changes
Needed to Speed Up Processing Permits for Dredging Projects, n
Report to the Chairman, Committee on Merchant Marine and Fisheries,
U.S. House of Representatives.
Dredging Committee, California Marine Affairs and Navigation
Committee, (1978), "A Muddle Over Mud," Presentation to Port
Caucus, U.S. House of Representatives, July 13, 1978.
Environmental Law Institute (1981), NEPA in Action: Environmental
Offices in Nineteen Federal Agencies (Washington, D.C.:
Environmental Law Institute).
General Accounting Office (1984), Update on Army Corps of Engineers'
Planning and Designing Time for Water Resources Projects
(Washington, D.C.: Government Printing Office).
General Accounting Office (1978), Corps of Engineers Flood Control
Projects Could Be Completed Faster Through Legislative and
Managerial Chances (Washington, D.C.: Government Printing Office)
Kenny, M. (1980),
'iPort Permitting Problems," Coastal Zone '80 (New
York: American Society of Civil Engineers), pp. 791-809.
Rader, C. D. (1983), "The Corps of Engineers Public Interest Review
Process: Is It Working?" Coastal Zone '83 (New York: American
Society of Civil Engineers), pp. 2086-2091.
.
Representative terms from entire chapter:
local projects
