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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
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
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.
80 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
81 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
82 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
83 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.
84 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
85 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
86 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
87 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,
88 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.
89 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
Do 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
91 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.
92 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
93 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.
94 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. .