Thank goodness for “guidelines.” Were it not for them, government would have to make laws and regulations that have to be followed, whereas guidelines are merely suggestions that should be followed … or else.
That little distinction between having to do something and, well, still having to do something make so much difference, as the local Ocean City Reef Foundation has recently learned.
Courtesy of the a federal government, which fails, incidentally, to be aware of the law of unintended consequences, the Ocean City Reef Foundation will have to survey the bottom of the ocean to ascertain whether depositing environmentally safe material there will not obscure or obstruct anything else of cultural significance.
Specifically, before the foundation can renew the reef permits, it will have to ensure that no Native American artifacts reside on the sea floor where it intends to create or maintain habitat for marine life.
This strange circumstance stems from a federal regulation intended to protect tribal resources and heritage sites, which was in turn interpreted by the Bureau of Ocean Energy Management as a long, complex, and expensive process to make sure that offshore wind farms do not encroach on traditional native fishing grounds and archeological sites
This has been an actual issue in New York and New England, but not here.
Yet, as the law of unintended consequences dictates, this particular semi-rule (it being a guideline, after all) has seeped into other offshore regulatory matters while simultaneously becoming less well-defined.
A short summary of this guideline, which in the case of the Reef Foundation is being applied by the Army Corps of Engineers, would be to say, “Applicant must look for reasons why what it wants to do might conflict with something else that may or may not be of any importance.”
Such a request would seem to be a non-issue along this coast, which – as Gail Blazer points out – has been clammed into an underwater desert for the past 40 years.
But that is a totally different matter from what the BOEM has interpreted as due diligence under the National Historic Preservation Act.
The problem is that the only organization that has ever fully carried out these suggested guidelines is the BOEM itself, in order to help Ken Salazar prove that it’s okay to sell federal land for wind farms. The cost of doing so was orders of magnitude above what the Reef Foundation could ever afford.
Here’s our (unsolicited) advice to the Reef Foundation: hand the Corps a study (it could be written on a cocktail napkin) that declares what the federal government wants to hear, which is a “Finding of No Significant Historic Impact.”
As for the methodology, just put “because there’s nothing out there except sand.”
If this finding is rejected, ask for someone to tell you exactly what you have to do to get your permit, and under whose authority.