Comment from Anonymous

I submit these comments to object to the U.S. Fish and Wildlife Service’s treatment of National Historic Preservation Act Section 106 compliance for the proposed 50-year ESA Section 10(a)(1)(B) incidental take permit for Green Diamond Resource Company’s Marbled Murrelet Habitat Conservation Plan. The Draft EA’s Section 106 analysis is inadequate because it defines the undertaking as the mere “issuance of the Take Permit” and concludes that permit issuance has “no potential to cause effects” under 36 CFR 800.3(a)(1). This framing is too narrow. It separates the permit decision from the timber and forest management activities the permit would authorize, facilitate, and regulate for the next 50 years. The NHPA regulations define an undertaking as a “project, activity, or program” under federal jurisdiction, including those requiring a federal permit, license, or approval. 36 CFR 800.16(y). The undertaking here is the Service’s approval of a 50-year HCP and incidental take authorization for Green Diamond’s timber operations and related activities, including harvest, road construction and maintenance, rock pit use, water drafting, prescribed burning, silviculture, monitoring, and conservation measures. Those activities are not background conditions. They are the activities for which Green Diamond seeks federal authorization and regulatory assurances. They would not occur in the same legal posture, and in some cases not in the same manner, but for the Service’s permit decision. The Service cannot avoid Section 106 by defining the undertaking as the permit document alone. The Draft EA demonstrates the inconsistency. For NEPA, the Service evaluates effects of the proposed action and covered activities on multiple resources, including cultural resources. The EA acknowledges that harvest and road-building may disturb unknown cultural resources and identifies localized risk as an unavoidable effect. Yet for Section 106, the Service treats those same activities as outside the undertaking and concludes that permit issuance has no potential to affect historic properties. If these activities are connected to the federal action for NEPA, they must also be considered when defining the NHPA undertaking and APE. The APE must include the geographic areas where the undertaking may directly or indirectly alter the character or use of historic properties. 36 CFR 800.16(d). For this HCP and permit, the APE cannot be limited to an abstract federal decision point. It must include the Plan Area, added lands, roads, rock pits, water drafting sites, landings, staging areas, harvest units, and other locations where ground disturbance or land-use changes could affect historic properties, including Tribal cultural properties. The Draft EA acknowledges that cultural resource records are incomplete. Public databases do not include all confidential historic properties, properties of religious or cultural significance to Tribes, or all eligible but unlisted properties. The EA recognizes that unidentified historic properties may be present in the Plan Area. That record does not support a “no potential to cause effects” finding. It supports a reasonable and good-faith identification effort under 36 CFR 800.4, including consultation with Tribes, the SHPO or THPO, and other consulting parties. The Service cannot rely on California Forest Practice Rules or Green Diamond’s Timber Harvest Plan process as a substitute for Section 106. State procedures may provide useful information, but they do not replace the Service’s federal responsibility to define the undertaking, identify the APE, consult, identify historic properties, assess effects, and resolve adverse effects before approving the permit. The Service should withdraw its “no potential to cause effects” determination and revise the Section 106 process before issuing any final permit, final EA, FONSI, or other decision document. At minimum, the Service should define the undertaking to include the 50-year HCP, incidental take permit, conservation program, and all covered activities authorized, facilitated, or materially changed by the federal permit. It should revise the APE accordingly, conduct a reasonable and good-faith identification effort, and consult meaningfully with Tribes that may attach religious or cultural significance to properties in the APE. If phased review is necessary, the Service should develop a Section 106 programmatic agreement or other lawful program alternative with enforceable procedures for future site-specific review before ground-disturbing activities occur. The current record does not demonstrate compliance with Section 106. The undertaking definition is too narrow, historic property identification is incomplete, and the “no potential to cause effects” conclusion is unsupported. The Service should not issue the permit until it completes a lawful Section 106 process for the full scope of the HCP and covered activities.