Originally posted March 17, 2016
Most preservationists are familiar with the Section 106 review process under the National Historic Preservation Act (NHPA), which requires federal agencies to analyze whether their actions will have adverse effects on historic resources and to seek ways to avoid, minimize, or mitigate those effects. Consulting parties are an important aspect of the Section 106 review process, and they have a unique opportunity to participate in meetings and provide comments on draft documents throughout the process. Moreover, consulting parties usually have the right to sue a federal agency that fails to comply with the NHPA. The rights and remedies of a consulting party, however, may be severely limited when an undertaking is regulated by the Federal Energy Regulatory Commission (FERC)—the agency that regulates interstate transmission of natural gas; oil; and electricity, including hydropower projects. The Federal Power Act governs FERC and provides for judicial review of FERC orders directly to the United States Court of Appeals, rather than to a federal district court. However, only parties that have formally intervened in a proceeding under FERC’s rules and regulations are authorized to appeal FERC’s decisions. To make matters worse, FERC recently adopted a policy that prohibits intervenors from participating as consulting parties under Section 106, thus forcing interested parties to choose between these two options.
The National Trust recently experienced this binary while working on the National Treasure campaign to preserve Pawtucket Dam. Constructed in 1847 and 1875 on the Merrimack River in Lowell, Massachusetts, Pawtucket Dam is a rare hydraulic structure with a granite block base topped with wooden flashboards supported by iron pins that follow the natural ledge of the Pawtucket Falls. The dam, which diverted much of the river’s flow into canals to power mills, was thus instrumental in establishing Lowell as the first large-scale planned industrial city in the United States. During flooding events, the dam’s five-foot-tall pins bend, releasing the flashboards and redirecting the water to bypass the canals in order to reduce the impact on the mills below and to minimize upstream flooding. The pins and flashboards are then manually replaced. Pawtucket Dam is nationally significant as it contributes to the Locks and Canal National Historic Landmark District, the Lowell National Historical Park (where it is showcased on the National Park Service’s canal boat tours), and the Downtown Lowell Historic District (a local district). It is also designated as a Historic Civil and Mechanical Engineering Landmark.
In April 2013 FERC issued an order authorizing the replacement of the wooden flashboard system with a pneumatic crest gate system, which uses inflatable bladders to raise and lower metal gate panels. FERC terminated consultation under Section 106 and refused to acknowledge that the project would have any adverse effect on the dam, the national park, or the historic district, despite the strong objections of the Advisory Council on Historic Preservation (ACHP), the National Park Service, the State Historic Preservation Office, and most of the consulting parties.
The FERC order concluded a process that had commenced in July 2010, when the owner of the dam filed an application to amend its license. In response to the application, FERC issued a notice requesting comments, motions to intervene, and protests to be filed within 30 days—by September 10, 2010. While the Department of the Interior (DOI), the city of Lowell, and a local group filed motions to intervene, the National Trust was not yet involved in advocacy to protect the dam and was unaware of the filing deadline, which occurred eight months prior to the start of Section 106 review in April 2011. Ultimately, not securing status as an intervenor prevented the National Trust from being able to directly appeal the FERC order.
Instead, the National Trust worked with the existing intervenors, encouraging them to challenge the FERC order. Luckily, the DOI received approval from the United States Solicitor General to take the rare action of pursuing a legal challenge to the decision of a sister federal agency. With the support of the Department of Justice, DOI was able to argue valiantly to protect the historic integrity of the Pawtucket Dam. The National Trust supported their arguments by participating as amicus curiae, represented by the Harvard Law School Emmett Environmental Law and Policy Clinic.
While the legal efforts to save Pawtucket Dam were unsuccessful, this campaign taught us a key lesson—reserving the right to appeal a FERC order requires getting formally involved in the very early stages of a project, often well before the Section 106 process begins. While the time period for intervention varies, generally one can file a motion to intervene when FERC issues a public notice about a proposed project. Information on proposed projects can often be found in legal notices in newspapers, and FERC maintains a national list of projects. Formal intervention provides important advantages, such as the rights to participate in hearings and to receive copies of FERC documents and filings by other intervenors. Most importantly, it allows a party to file for rehearing of FERC’s decision and to file a legal challenge to FERC’s final decision or order. More information on intervention can be found here.
Our advice to fellow preservation advocates dealing with FERC is to intervene early and intervene often to preserve your appellate options, even if it means sacrificing the option to participate as a consulting party under Section 106. When FERC refuses to allow intervenors to participate as consulting parties, preservation advocates should urge the ACHP to participate directly in the Section 106 consultation, as they did for Pawtucket Dam.
Anne Nelson is an associate general counsel with the National Trust for Historic Preservation.#NationalTreasure #Pawtucket #Legal #Section106 #NHPA