“We Are Guahan” Submits Objections To DoD’s Proposed Historic Preservation “Programmatic Agreement”

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Guam – The “We Are Guahan” has submitted its objections to the Historic Preservation “Programmatic Agreement” to the Department of Defense.

AS PNC News reported Friday, the Guam’s Historic Preservation Office has said they are being pressured to accept the agreement, despite their objections.

Read the PNC article from Friday

“We Are Guahan” has detailed its own objections in a letter today [Monday] to the Department of Navy’s William Manley.

    RE: Comment submitted on behalf of We Are Guåhan and its members regarding the Guam and CNMI Build-up Programmatic Agreement

To Whom It May Concern:

Thank you for the invitation to submit comments on the Guam and CNMI Build-up Programmatic Agreement.  We Are Guåhan objects to the Programmatic Agreement until DoD addresses several areas of concern.  We Are Guåhan is specifically concerned with (1) the lack of public input in the development of the Programmatic Agreement, (2) the stipulations pertaining to projects that are recognized to have adverse effects on historic properties, (3) the mitigation measures outlined in the Programmatic Agreement; and (4) the ambiguity regarding the construction of a firing range complex at Pågat.

    1. Five (5) days is insufficient time for the public and Section 106 consulting  parties to review and comment on the Programmatic Agreement.


“The views of the public are essential to informed Federal decision making in the section 106 process.”  36 CFR § 800.3(d)(1) (emphasis added).    The most recent draft of the Programmatic Agreement is dated August 20, 2010 with comments due originally due on August 25, 2010 at 5:00pm.  DoD held a meeting on August 25, 2010, scheduled to go from 1:30pm – 4:30pm to discuss the most recent Programmatic Agreement.  This would have given Section 106 consulting parties thirty (30) minutes to submit their comments.  DoD later extended the deadline to submit comments by five (5) days.  This means that the community of Guam had a total of five (5) days to review and comment on an agreement that governs the preservation of historic properties.

Upon information and belief, DoD outright denied the request for a public hearing on the Programmatic Agreement. We Are Guåhan urges DoD to reconsider its position that a public hearing on the Programmatic Agreement would be a waste of its time.

DoD’s actions, consistent with its actions throughout the NEPA process, create the appearance that DoD is more concerned with Fiscal Year 2011 than it is with drafting a Programmatic Agreement that takes into consideration the views of the people of Guam. The Programmatic Agreement should not be signed until the public has had an adequate opportunity to (1) identify possible historic properties affected by the Undertaking, and (2) review and comment on the proposed Programmatic Agreement.

    1. DoD should not proceed with projects that will have adverse effects on historic properties until there has been a discussion with consulting parties on possible avoidance and or mitigation measures.


The Programmatic Agreement provides in pertinent part that “[f]or those projects listed in Appendix D for which adverse effects have been determined to occur . . . the mitigations and procedures defined in Stipulations VI, VII and VIII will be considered to adequately resolve these effects, consistent with 36 CFR § 800.6.” Appendix D of the Programmatic Agreement identifies twenty-six (26) sites that will be adversely affected as a result of buildup projects out of over one hundred eighty (180) projects.  The Programmatic Agreement does not appear to require DoD to hold off on projects identified as having an adverse effect on historic properties until there has been consultation about the possibility of avoiding and or minimizing adverse effects.  The Programmatic Agreement should explicitly state that no DoD projects proceed until consulting parties have been given an opportunity to suggest mitigation and or avoidance measures.

Furthermore, the Programmatic Agreement’s stipulation regarding the development of mitigation and avoidance measures for adverse effects is inadequate.  DoD will give “full consideration” of mitigation measures suggested by consulting parties. “If adverse effects cannot be avoided to these historic properties, the DoD will mitigate adverse effects as specified in Stipulation IV.”  This means that, although DoD is obligated to give “full consideration” of avoidance and mitigation measures, it is also free to ignore them.

For example, there appear to be projects that should not require the disturbance of historic properties.   A few of the projects that will admittedly have an impact on historic properties are the construction of a dining facility and a gym must be built in a location where there will be adverse effects on historic properties.  DoD owns a lot of land on Guam and intends on “acquiring” even more.  It is insulting for DoD to suggest that it does not currently own enough property to put these facilities in a location that would not require the disturbance of historic properties.

We Are Guåhan therefore requests that (1) no projects identified in the Programmatic Agreement as having adverse effects on historic properties proceed until consulting parties have been given an opportunity to suggest mitigation and or avoidance measures and (2) the Programmatic Agreement be revised to refer all disputes regarding mitigation and avoidance efforts according to Stipulation XII, Resolving Objections.

    1. The general mitigation measures identified in the Programmatic Agreement are inadequate.

The Programmatic Agreement provides that the mitigation measures outlined in Stipulations VI and VII will be considered adequate to resolve all adverse effects on recognized historic properties.  Stipulation VI identifies data recovery plans and public education and interpretation as its primary mitigation measures.  These mitigation measures require DoD to create an “information package developed for use on the Internet that includes photos, a summary of excavations, materials recovered, and significance of the site to regional culture.”  DoD will also “[p]rovide 100 copies of a fact sheet on the site, which may be distributed and reprinted by the appropriate SHPO.”

The Programmatic Agreement therefore provides as catchall mitigation measures: (1) developing procedures governing the removal of archaeological and human remains, (2) a website and (3) the distribution of 100 copies of a fact sheet.  How do these measures mitigate the disturbance of historic properties?  This is similar to saying that DoD would mitigate the destruction of a historic building by (1) following procedures in its destruction, (2) taking photos of the building before destroying it for use on a website, and (3) printing out 100 fact sheets about why the building was important.

The mitigation measures for indirect effects on historic properties are also lacking.  With all due respect, how much impact does DoD believe an annual briefing to DoD personnel and their families on historic properties will be?

DoD also wishes to afford public access to historic properties “[i]n recognition of the significance that many historic properties located within DoD installations have to various cultural and historic groups.”  It is a little disingenuous for DoD to now recognize the benefit in public access to historic lands located on DoD property.

We Are Guåhan requests that the Programmatic Agreement create an explicit preference for the avoidance of adverse effects.  We Are Guåhan also requests that a public access plan to historic properties be developed prior to the signing of the Programmatic Agreement.

    1. The Programmatic Agreement is ambiguous regarding Pågat.

The Programmatic Agreement must clearly provide for an entirely separate Section 106 consultation process with respect to Pågat.  The Summary of Changes provides:

Discussions have resulted in a change in the PA to state that a subsequent consultation will be conducted to consider effects on historic properties from new ranges.  Relative to proposed new training ranges, the DoD has agreed in the revised PA to address effects on historic properties and any measures to be implemented to mitigate for those effects in a focused agreement specific to the ranges.

In the Programmatic Agreement, however, Pågat is identified in Appendix A as part of the Undertaking.  Furthermore, Appendix D identifies land acquisition for firing ranges as a site that has “Further Evaluation Required.” Stipulation V.C.3 governs all projects in the Undertaking requiring additional evaluation to determine effects.  Assuming that DoD agreed there would be adverse effects on Pågat, the remedy would be to comply with Stipulation V.C.2.  This does not appear to reflect the intent of the revision.

Stipulation VII.B.6 states that “DoD will conduct supplementary consultations under this PA . . . to address the effects on historic properties of construction and operation of new firing ranges.” It is still unclear whether the procedures set forth in Stipulation V.C.3 constitute “supplementary consultations.”

We Are Guåhan therefore requests that the Programmatic Agreement explicitly state that a supplemental Section 106 process be initiated with respect to actions surrounding the Pågat area.  The Programmatic Agreement, as drafted, creates an ambiguity that could potentially allow DoD to move forward with the proposed firing ranges after giving thirty (30) days worth of notice, “supplementary consultation” and a finding of adverse effect.

CONCLUSION

Based on the foregoing, We Are Guåhan hereby requests:

    1. The Programmatic Agreement not be approved until there has been a reasonable amount of time for the public to identify historic properties and the possible impacts on historic properties;
    2. The Programmatic Agreement not be approved until there has been a reasonable amount of time for the public to review and comment on its provisions;
    3. The Programmatic Agreement be revised to provide that no projects with adverse effects on historic properties proceed until there has been a discussion of avoidance and or mitigation measures with consulting parties and the public;
    4. The Programmatic Agreement be revised to refer all disputes regarding avoidance and or mitigation measures as set forth in Stipulation XII;
    5. The Programmatic Agreement be revised to create an explicit preference for avoidance of adverse effects;
    6. The Programmatic Agreement be revised to include a public access plan;
    7. The Programmatic Agreement be revised to explicitly provide for supplemental review under Section 106 for the proposed firing range complex at Pågat.

Please contact [email protected] if you have any questions or concerns about this comment.

Sincerely,